Driver wearing wired ear bud headphones convicted of “using” phone, despite dead battery

In R. v. Grzelak, the accused was ticketed for “holding or using” an electronic device while driving, an offence under s. 214.2 of the BC Motor Vehicle Act. The undisputed facts were that the accused’s iPhone was in a centre cubby hole in the dashboard of his car, and that he was wearing a pair of ear bud headphones (in both ears) which were plugged into the phone. The phone’s battery was dead and no sound of any sort was coming through the ear buds. The offence provision required the Crown to prove that the accused was “holding the device in a position in which it may be used.” The judge noted that if this was proven, a conviction must follow, “even if the battery was dead, and even if the Defendant was not operating one of the functions of the device (such as the telephone or GPS function).” In support of this proposition the judge cited R. v. Judd, which seems an odd choice as in that case the accused was convicted because he was physically holding his phone up to his ear while driving, and there was no evidence about the phone’s battery or which function he might have been using.

On the issue of “holding” the judge found as follows:

[9] Obviously, here the cell phone itself was sitting in the centre cubby hole, and was not in the defendants hands, or in his lap. But that is not the end of the matter. In my view, by plugging the earbud wire into the iPhone, the defendant had enlarged the device, such that it included not only the iPhone (proper) but also attached speaker or earbuds. In the same way, I would conclude that if the defendant had attached an exterior keyboard to the device for ease of inputting data, then the keyboard would then be part of the electronic device.

[10] Since the earbuds were part of the electronic device and since the ear buds were in the defendants ears, it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears.

Even the dead battery could not absolve the accused, as the judge held that simple “holding” was sufficient to make out the offence, “even if it is temporarily inoperative.” Accordingly, the accused was convicted.

In our view, and with respect, this reasoning seems a bit of stretch. The accused was found to have been “holding the device”… in his ears. Surely this strains a reasonable interpretation of what the BC Legislature intended with the wording of the provision. Was it the fact of the physical connection of the earbuds to the phone, i.e. via a wire, that “enlarged” the device? This does beg the question of whether there would be a different finding if the ear buds (or the judge’s hypothetical keyboard) were connected via Bluetooth, as is increasingly common. It is probably fair to say that what the Legislature intended to capture with these provisions is distracted driving, and that driving with earbuds in (if the phone was not dead, as here) might amount to that. But as this case demonstrates, as do so many other cases like it, it would be preferable for the Legislatures to use more technology-neutral language in these offence provisions.