A B.C. Supreme Court judge has dismissed a Surrey motorist含羞草研究社檚 appeal of a provincial court judge含羞草研究社檚 decision to convict him of using an electronic device while driving, contrary to the Motor Vehicle Act.
Owais Ahmed Nasir Mirza appealed the conviction, which stemmed from an interaction with a police officer at 64 Avenue and 176 Street on Dec. 15, 2021. The constable, who was doing distracted driving and seatbelt enforcement at the intersection, was walking amongst vehicles stopped at a red light. He told the court he saw a cellphone lying horizontally on Mirza含羞草研究社檚 right thigh with the screen facing upwards but not lit.
Mirza contested his ticket.
The constable testified that when Mr. Mirza saw him he put the phone on the front passenger seat and then told him to turn into the Chevron gas station nearby and issued the fine.
Mirza testified he usually left his cell phone between the passenger seat and the driver含羞草研究社檚 seat, he had no intention of using it, that the phone was locked and his hands were on the steering wheel and that the phone was 含羞草研究社渓eaning含羞草研究社� against him. The provincial court judge nevertheless found him guilty of holding his cellphone in a position it could be used, declaring that 含羞草研究社渢he short of it is that if it is being held on the lap or on the thigh, it is still holding within the meaning of the statute.含羞草研究社�
Justice Shelley Fitzpatrick in Vancouver noted in her that 含羞草研究社渢he issue at trial含羞草研究社攁nd reiterated on this appeal含羞草研究社攊s whether Mr. Mirza was 含羞草研究社榰sing含羞草研究社� his phone, in that he was 含羞草研究社榟olding the device in a position in which it may be used.含羞草研究社櫤卟菅芯可鐫
Mirza conceded his phone may have been touching his leg 含羞草研究社渁 bit.含羞草研究社�
含羞草研究社淚 take this submission to mean that Mr. Mirza confirms that his phone was leaning on his leg, consistent with his evidence at trial that it was 含羞草研究社榣eaning on his body,含羞草研究社櫤卟菅芯可鐫 Fitzpatrick noted. 含羞草研究社淢r. Mirza also again emphasizes that his hands were on the steering wheel, he was not looking at his phone and he was not using any of the functions of the phone, such as sending a text or email, making or received a phone call or employing the GPS. In all of these circumstances, Mr. Mirza asserts that he was not guilty under s. 214.2(1) of the Act.含羞草研究社�
But Fitzpatrick said she was bound by case law, as was the provincial court judge, by Court of Appeal decisions which 含羞草研究社渃an dictate only one result here.
含羞草研究社淚 am not at liberty, as Mr. Mirza had suggested I am, to disregard those decisions,含羞草研究社� she said, and 含羞草研究社渁ccordingly含羞草研究社� she could not conclude there is any basis under the Criminal Code to question the provincial court含羞草研究社檚 decision 含羞草研究社渋n respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza含羞草研究社檚 appeal is dismissed.含羞草研究社�
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