The provisions in the Motor Vehicle Act (MVA) covering distracted driving are broadly defined and the police and courts have been just as broad in their interpretations of the rules. Drivers are afforded very little leeway when it comes to what constitutes using an electronic device while driving.
Marika Winthrope found this out the hard way before she took her appeal against a three-month driving prohibition to the BC Supreme Court.
She had been given a ticket for using an electronic device while driving last year when she got a message from an app alerting her there was something wrong with her mother. Her brother was at home with their mother but was unable to communicate the problem because of a developmental disorder. Ms. Winthrope therefore waited until she stopped at a red light to call 911. Unfortunately, a police officer saw her and pulled her over.
The Superintendent of Motor Vehicles later issued her a driving ban because of an “unsatisfactory” driving record which consisted of two previous infractions, one for speeding and one for using an electronic device while driving.
She appealed to the Superintendent that she needed to drive to be able to properly care for both her brother and her mother, who has a history of strokes, but this was dismissed.
Power of the Superintendent of Motor Vehicles to issue driving prohibitions
This case highlights just how much power the Superintendent has under sections 93 and 94 of the MVA to ban drivers. Some of the reasons a superintendent can give to prohibit someone are very vague. They include:
“In forming an opinion as to whether a person’s driving record is unsatisfactory the superintendent may consider all or any part of the person’s driving record, including but not limited to any part of the driving record previously taken into account by a court or by the superintendent in making any order prohibiting the person from driving a motor vehicle.”
That’s right. Whether or not a person should be allowed to drive a car so they can act as the primary caregiver to two of their family members comes down to the opinion of an adjudicator.
That is why it is so important that the MVA includes a failsafe. Any person who is prohibited from driving has 30 days to appeal the prohibition to the Supreme Court. That is exactly what Ms. Winthrope did and the Court tore apart the adjudicator’s justifications for not overturning the driving prohibition.
Section 214.4 of the Motor Vehicle Act, permits certain activities you can use an electronic device for while operating a vehicle, including “to call or send a message to a police force, fire department or ambulance service about an emergency”. Saanich police even highlighted this exception to the rule in a recent tweet.
The adjudicator took exception to the fact Ms. Winthrope waited until she was at a red light to make the call, claiming it showed she may have had an opportunity to safely pull over to the side of the road to respond to the notification. Ms Winthrope also has novice licence which prohibits the use of any electronic devices including navigation and handsfree devices, however, this prohibition also carries the 911 emergency call exception.
In the BC Supreme Court decision it notes the violation had occurred in an “exceptional situation”. It added the adjudicator erred by failing to take into account the circumstances around her using her phone.
“Rather than address that issue,” Justice Nathan Smith write. “The adjudicator simply relied on the fact of the violation as evidence that Ms. Winthrope had failed to improve her general ‘driving behaviour’. In failing to address the fundamental issue to be addressed under the applicable legislation, the adjudicator made a decision that I find to be unreasonable.”
Importance of challenging driving prohibitions
This case highlights just how undefined the power of the Superintendent’s office is when it comes to issuing driving prohibitions. Drivers are often at the whim of an adjudicator. That is why the role of the Supreme Court in providing oversight for the Superintendent’s office is so vital. Before it is able to exercise this power, however, it is up to drivers to challenge unfair driving prohibitions.
If you have been issued a driving prohibition you think is unfair, we highly recommend you seek professional help to prevent you from being banned from the roads. At BC Driving Lawyers we have helped save countless clients from driving prohibitions or had the length of the suspension reduced.
Call us today on 604-608-1200 for a free consultation.
You are such a blessing for your knowledge and actions for the public, thank you.
We’re doing our best, day in day out. Kyla is the creative mind who keeps coming up with these smart IRP defences. She really is the engine of the firm when it comes to driving and criminal law.