A B.C. Supreme Court judge has dismissed a Surrey motorist害羞草研究所檚 appeal of a provincial court judge害羞草研究所檚 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害羞草研究所檚 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害羞草研究所檚 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 害羞草研究所渓eaning害羞草研究所� against him. The provincial court judge nevertheless found him guilty of holding his cellphone in a position it could be used, declaring that 害羞草研究所渢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.害羞草研究所�

Justice Shelley Fitzpatrick in Vancouver noted in her that 害羞草研究所渢he issue at trial害羞草研究所攁nd reiterated on this appeal害羞草研究所攊s whether Mr. Mirza was 害羞草研究所榰sing害羞草研究所� his phone, in that he was 害羞草研究所榟olding the device in a position in which it may be used.害羞草研究所櫤π卟菅芯克鶟

Mirza conceded his phone may have been touching his leg 害羞草研究所渁 bit.害羞草研究所�

害羞草研究所淚 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 害羞草研究所榣eaning on his body,害羞草研究所櫤π卟菅芯克鶟 Fitzpatrick noted. 害羞草研究所淢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.害羞草研究所�

But Fitzpatrick said she was bound by case law, as was the provincial court judge, by Court of Appeal decisions which 害羞草研究所渃an dictate only one result here.

害羞草研究所淚 am not at liberty, as Mr. Mirza had suggested I am, to disregard those decisions,害羞草研究所� she said, and 害羞草研究所渁ccordingly害羞草研究所� she could not conclude there is any basis under the Criminal Code to question the provincial court害羞草研究所檚 decision 害羞草研究所渋n respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza害羞草研究所檚 appeal is dismissed.害羞草研究所�

tom.zytaruk@surreynowleader.com
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