Distracted driving confusion, limits on liability for airlines, and the demonstration of smudging in school is permitted


The Motor Vehicle Act distracted driving provisions are in need of an update in order to both provide clarity, and to address technological changes that have taken place over the past ten years.

As a result of the outdated, and confusing, legislative scheme even police officers who are charged with enforcing the scheme are having difficulty interpreting the provisions.

Recent advice, offered by a senior police officer, concerning when and how electronic devices can be used was, unfortunately, misleading.

The Use of Electronic Devices While Driving Regulations permit someone, who is not a new driver with a class 7 or 7L licence, to use the hands-free telephone function of an electronic device, which is properly secured to a motor vehicle, within easy reach of the driver’s seat, or worn securely on the person’s body, by touching it once in order to start or end a phone call.

This “one-touch” exception to the general rule prohibiting the use of electronic devices, only applies to hands-free phone calls. It does not permit the use of a device for some other purpose by touching it once.

There is a separate provision that permits a “Hand-held audio player” to be used, as long as it’s not held in a person’s hand, and is “securely fixed” to the vehicle or “worn securely”  in a way that does not obstruct vision or interfere with the safety or operating equipment of the vehicle and as long as the sound “is emitted through the speakers of the sound system of the motor vehicle”.

While the “Hand-held audio player” exception makes no reference to the device only being touched once, “Hand-held audio player” is not defined. It seems to be a relic from the days of stand-alone iPods. This has the real possibility of creating uncertainty and confusion when a modern, multi-use, a smartphone is being used to play music in a car.

Also discussed on this week’s episode of Legally Speaking with Michael Mulligan, are the Montreal and Warsaw Conventions, which limit the liability of airlines for the death or injury of passengers on international flights.

The Montreal Convention has been implemented in Canada by the Carriage by Air Act. This limits the liability of airlines to approximately $175,000 in the event of a passenger being killed on an international flight. In some cases, this may not be enough money to support surviving family members.

The final case discussed was from Port Alberni and involved an evangelical Christian mother claiming that a public elementary school interfered with the religious freedoms of herself and her children by demonstrating the indigenous practice of smudging and having her children see an indigenous dance performance, in the midst of which the dancer said a prayer.

Ultimately, the judge concluded that the mother had not established that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly, interfered with her or her children’s ability to act in accordance with their religious beliefs.

By way of context, until 1989, the School Act required that public school days be opened by the reading of a passage of Scripture followed by the recitation of the Lord’s Prayer.


Legally Speaking is live on CFAX 1070 every Thursday at 10:30 am.


A transcript of Legally Speaking with Michael Mulligan:

Adam Stirling [00:00:00] Legally Speaking, on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers. Good morning, Michael. Good to see you.

Michael T. Mulligan [00:00:06] Great to be seen. Good to be here. Another week of non-stop legal action.

Adam Stirling [00:00:11] Interesting developments regarding British Columbia’s distracted driving laws. Now, we had a segment earlier today where we were joined by Corporal Mike Halskov from the integrated road safety here in the Victoria area. And he had the following to say to Al Ferraby regarding British Columbia’s distracted driving laws.

Earlier Recording [00:00:30] It’s holding the device in a position in which it may be used operating one or more of the devices, functions, communicating orally by means of the device with another person or another device, and taking any other action that is set out in the regulations by means of, with or in relation to an electronic device. So that sounds fairly vague, but it’s really pretty specific. Essentially, if you’re if you have a classified licence, you can have a cell phone in your vehicle provided its security, your dashboard by some type of holder. And any operation that you do with that device is to be one touch only. So, to answer a call, for example, or to hang up a call, or in the case of if you’re looking for some music, it’s basically you can fast forward to the next song by one touch. If you start scrolling through a list or screens or something like that, then that constitutes use and be subject to a ticket in that case.

Adam Stirling [00:01:31] Now I think everyone’s on the same page here. The scrolling is prohibited, but you have some thoughts on whether the one-touch provision goes to skip to the next song.

Michael T. Mulligan [00:01:39] Yes. And I think this is simply an example of why this legislation and its associated regulations require, relatively urgently, some updating and clarification, because what we have is a piece of legislation and then regulations, rules made pursuant to that legislation which were implemented more than a decade ago. And things have moved on in the last decade or so in terms of what devices are. And I think that may be the root of some of the misunderstanding and challenges that have developed around this legislation. I must say, I listened to that interview driving in today and it was distracting because one of the pieces of advice there, I think is not good advice. The officer there, I think, was doing his very best to try and interpret what this confusing piece of legislation means. But I think his advice in that regard may be problematic and problematic for this reason: The Motor Vehicle Act essentially prohibits, in the language, he read out, the use of an electronic device. And that prohibition is extremely broad. It’s holding the device in a position which it may be used, even if you’re not using it, operating it, communicating it, really broad provisions, virtually anything. And then there are some exceptions to that which are set out by regulation. There is an exception which permits the use of an electronic device by somebody who’s not a class 7 like N or L type driver or regular licence for the purpose of hands-free telephone function, not other functions. OK. Those are separate. For the hands-free telephone function, if you have you if you’re not an N or an L driver, you would be permitted to use the device if it is securely affixed to the vehicle or your body. There’s another interesting provision there. But the one-touch exception relates only to the initiating or accepting or ending a phone call in the telephone function. That regulatory exception, which is in Section 7 of the Motor Vehicle Act regulation, does not provide a one-touch exception for the purpose of changing songs. So, it would be, in my judgment, not a safe thing to do, both from a driving perspective, but also from a legal perspective to be touching your device for the purpose of changing songs. That is not what that regulatory exception deals with that regulatory exception deals with the telephone function, answering your hanging up. That exception does not extend to touching your device once to use it to change songs. It does not accept there’s not a distinction between scrolling for songs and touching for songs. There is, in the regulation, a separate exception that deals with what is described as a handheld audio player. And this likely comes from the you know, more than a decade ago, back in the days when you would have a device which would only perform that function like, I think what the was probably intended there was somebody had a you know, a pod…

Adam Stirling [00:04:59] or an old, C.D. player remember those?

Michael T. Mulligan [00:05:02] Yeah.

Adam Stirling [00:05:02] Have the tape adapter and you plug them in. That is exactly….

Michael T. Mulligan [00:05:04] That’s right. There it is right here.

Adam Stirling [00:05:06] Yeah.

Michael T. Mulligan [00:05:06] Or maybe like a handheld eight-track device, right. And there is a separate exception dealing with handheld audio players. And for handheld audio players, the exception requires that the device not be held in your hand. You can’t hold the eight-track or, you know, MP3 player or whatever it might be in your hand. It has to be securely fixed to the vehicle or worn securely. So that’s an interesting thing in a way that doesn’t obstruct the person’s view of the vehicle or otherwise interfere with the safe operation. And the sound has to be coming out of the speakers of the motor vehicle. So, when you look at that exception, it doesn’t specify one touch, two touches scrolling or anything else, but it only deals with handheld and handheld audio player.

Adam Stirling [00:05:55] So by my read, you could touch that handheld audio player all you wanted. Right.

Michael T. Mulligan [00:06:00] As long as it’s a handheld audio player, the confusion is going to come with a modern device that. Now, what do you do with, of course, your smartphone, which takes videos, makes phone calls, sends messages, plays music. And you know, lulls to sleep at night. What is that? Is that a handheld audio player or is that something else? Do you look at the mode, the things in? But the point is that the one-touch exception has absolutely nothing to do with selecting songs. Either your device is a handheld audio player, and in which case, as long as it’s securely affixed to the vehicle or worn securely in your body and not interfering and not held in your hand, there’s no limit to how many times you can touch it. But if it is not a handheld audio player, then that exception doesn’t apply. And the one-touch provision is only for the purpose of the hands-free telephone function of the device. So I’m concerned that the advice given out about where you can touch that thing once to skip to the next song is only good advice, if the device, whatever it might be in the modern world, is found to be a, quote, handheld audio player, close quote, and not something else. So, you can’t just take any device and touch it once and be in the clear. The one-touch exception, again, has to be for the purpose of the hands-free telephone function only for initiating accepting you’re ending a call, not for doing other things. And so, this is, I think, just why this legislation needs to be updated and clarified. It’s not good enough to just leave it to every officer and every driver who has tickets handed out and hope that somehow this will get sorted out in court, because, again, that’s not really a court’s function. The court will do its very best to interpret, you know, what the legislation was intended to cover, what’s its purpose, what’s the meaning of all this language. But what needs to happen here is we need to drag this legislation out of 2009 and into 2020 and get it focused back on safety and not leave it in a state where people are going to be completely unable to know what they’re permitted to do and not do. Other interesting things in here, by the way, there are exceptions that exempt anyone driving an ambulance, peace officer or personnel who are defined under the Fire Services Act, fire services personnel. The fire services personnel, interestingly, exception and those other ones, they don’t necessarily specify that the device that the person might be using in their hand must be for the purpose of acting as a firefighter, ambulance driver, a police officer, as long as the person is carrying out their duties or function. So when you read the legislation, you could have if you were an ambulance driver, the person might be driving down the road texting away could be very dangerous, but there be real issues there about whether this legislation captures them at all. So, we have these broad exceptions for police, ambulance and fire, which I think might need to be looked at. Other things have to be dragged into 2020 and provide some clarity for people because these things have consequences. It’s not just the fine. What happens is if somebody gets two of these things, they will be prohibited from driving. And for many people, that’s going to be a serious impediment on their ability to work. And so, this just has to get clarified.

Adam Stirling [00:09:25] I’m thinking here, I’m wondering if there have been any novel defences yet saying that at the material time the device being accessed was a handheld audio player, not a phone. While it is capable of serving both functions at the moment, it was a handheld audio player and therefore exempted under the legislation, I wonder if anyone’s tried that.

Michael T. Mulligan [00:09:40] Yeah, that would, I think, be not unreasonable. I mean, the concept, when there is statutory interpretation, is that the judge should be reading the thing and it sort of whole fulsome manner and trying to sort out what the meaning of this, what the intended meaning of this was. And so. You know, there I think you’re be a reasonable argument that a purposeful interpretation of what a handheld audio player would relate to, what is that thing doing at the relevant time?

Adam Stirling [00:10:07] Yeah.

Michael T. Mulligan [00:10:07] Lest, for example, your handheld audio player also has a small digital clock on it and then you would say, well, look, it could also be a clock. Therefore, if not a handheld audio player, that would seem a bizarre conclusion. So, it would seem to me that would be a reasonable, purposeful interpretation of it. But the point is, it’s very much ambiguous and telling everyone you can just touch it once, I think is perhaps unsafe advice.

Adam Stirling [00:10:29] Understood. Let’s take a quick break. Legally Speaking continues after this.

Commercial [00:10:34] Commercial Break.

Adam Stirling [00:10:34] Legally Speaking continues on CFAX1070. We will in just a few moments, address the matter of religious freedoms. A recent B.C. Supreme Court case for involving a demonstration of a smudging ceremony in the Port Alberni area. But first, in the context of the 737 flight from Tehran to Kiev, Michael Mulligan, you have some thoughts there?

Michael T. Mulligan [00:10:53] Yeah, that I must say, it’s a complete tragedy. The number of people involved in the number of Canadians involved in that. And it brought to mind for me as well from a legal perspective, I think something people should be aware of in terms of what happens if there is this sort of a tragedy on an airplane affecting loved ones and through how that is dealt with from a legal perspective. And there are a couple of international treaties, I think people should be generally aware of that address the issue of liability for airlines where somebody dies or is injured on a flight. And they are international treaties that deal with, interestingly, international flights, not domestic ones. So, there’s a different approach to those. Those conventions, there was originally a convention called the Warsaw Convention. And then more recently back in 1999, there was another convention referred to as the Montreal Convention. And the concept behind those conventions, which have been implemented in Canada pursuant to an act called the Carriage by Air Act, are to limit the liability of airlines to pay compensation to family members where somebody is tragically killed in a in an accident. And those provisions or those treaties, I think, were entered into with the idea of trying to standardize these things and provide some certainty for airlines in terms of what their liability would be and would have started back with that Warsaw convention one, I suppose, when air travel was still new and probably much higher risk of people dying or being injured in flights. And so, to promote international travel in the international airline industry, countries got together and limited the amount of compensation that family members might be entitled to. That was modified by that Montreal Convention, which Canada has implemented. And what that means is that if you have a family member who is killed in an international flight, if the limit on compensation is set out in that treaty and now act and is defined as a number of 125,000, actually now, special drawing rights. What’s that? Well, special drawing, right, is a defined as a value of a compilation of international currencies and it amounts to about o$170,000. And so, what that act does is it limits compensation to that amount. It does allow claims to be brought in the jurisdiction where the claimant would ordinarily be resident, which may be of some benefit here, because I’m sure good luck to you trying to bring a claim in Iran.

Adam Stirling [00:13:48] I was going to say ordinarily resident is itself a term of art. Yeah. It’s not. It doesn’t actually just mean ordinarily resident and there is specific meaning there.

Michael T. Mulligan [00:13:55] Yeah. So, I think the general idea would be that a family member who lives in Canada would be able to bring a claim here.

Adam Stirling [00:14:01] OK.

Michael T. Mulligan [00:14:02] Interestingly, and no doubt adding to all of this, however, is the fact that Iran is not a signatory to the Montreal Convention, they are still acting under that Warsaw convention; however, the Ukraine is. And so, there may be some interesting sort of conflict of law issues there. But the takeaway for people, I think, is that they should be aware when they’re on an international flight that there are limits placed on the amount of compensation that somebody might be entitled to. And that could be seriously meaningful, particularly if you had a family member who was killed who was responsible for the support of others. Like if you had a let’s say, a single parent or a both parents who were killed in an international flight, who had responsibility for supporting their child or children. You can easily imagine how over a very long period of time; those costs could easily exceed the $170,000 limit that’s placed on claims. So, you know, everyone is sort of mourning the tragic loss and these things will be sorted out and in good time. But we need to make sure that all of the people affected by that tragedy and the family members left behind are properly taken care of because these statutory limits may, in some cases, prevent that from happening.

Adam Stirling [00:15:28] Indeed, liability might become very complicated, very fast, depending on the veracity of various news reports that have suggested it may have been a Russian made Iranian fired missile that brought down that plane. We have not had official confirmation of that yet. Newsweek reported earlier this morning Prime Minister candidate Justin Trudeau expected to deliver remarks presently, actually within the next 10 minutes or so. So, we may get that, but thank you for that, that interpretation. I had a chance to speak with Dr. Judith Sayers, president of the Nuu-chah-nulth Tribal Council earlier this hour herself. Also, a lawyer, by training, about this case, Michael, in Port Alberni about a demonstration of a religion or excuse me, of a smudging ceremony. And I didn’t realize this until getting into the conversation. It seems to be material on whether or not this was an actual ceremony or demonstration of a ceremony and that played into it.

Michael T. Mulligan [00:16:17] Yeah. One of the other things which played into this decision involved what exactly happened. And in many of these sort of test cases, the underlying factual background isn’t the controversy. There’s a legal controversy. But what does that mean or is that permissible or not? here when you read the decision, there were some interesting and important factual findings that the judge made, and they included things like, for example, the children of the person who brought this complaint, and they were relatively young children, they were seven and nine. If I’ve got that right. Provided some evidence about what they claimed happened. And the children’s evidence included evidence about claiming that they were forced to remain, or one of them, forced to remain in the classroom, asked to leave and not permitted to leave. That evidence was rejected by the judge. One of the children also provided evidence that this ceremony is smudging ceremony was produced with smoke so thick that they had difficulty seeing in the classroom and that was rejected again by the judge is just not being what happened.

Adam Stirling [00:17:28] I find that to be impossible, given what I know of it.

Michael T. Mulligan [00:17:30] And then the other evidence from the child included. The judge said expressly, I reject the evidence of the petitioner’s daughter about the elder smudging her backpack or her desk. So, she made claims that these involved her, in particular, and not just something going on in the classroom generally. And that was, I think those factual findings played into the judge’s decision here. But one of the examples the judge used was, you know, the difference between, for example, taking somebody to see a mosque or taking the kids to see a church or whatever the school might do, and contrasting that with, for example, forcing the child to get down on a mat and pray, would be a different thing from saying, look, we’re going to have a demonstration here of different religious practices. That is a different thing from saying you must engage in the religious practice. And so those factual findings, I think, will be important. And well, you we’ve heard talk about the mother who brought this claim saying “well i’m going to appeal this”. One of the things to bear in mind where there is an appeal is that with some very narrow exceptions, the findings of fact that arrived at by a trial judge are not likely to be interfered with on the appeal. Right. They can appeal court might, have a different legal interpretation or assess whether the judge applied the right test, this sort of thing. But it accepted very narrow circumstances on an appeal. The Court of Appeal is not going to interfere with the judge’s fact finding. And so those particular sort of facts may have very significant influence on how this thing plays out at the end of the day, because as you can imagine, if this was no, I forced you to remain in the classroom and I forced you to actually participate in that.

Adam Stirling [00:19:19] I smudged your backpack and all this other stuff that could have produced a very different fighting.

Michael T. Mulligan [00:19:23] Correct.

Adam Stirling [00:19:23] If that fact that it’s been confirmed.

Michael T. Mulligan [00:19:25] So that’s, I think, really important to remember. Another piece of factual background. I think we should all bear in mind and I remember this from my school days. It used to be, and this was a requirement under the school act in British Columbia all the way up to a decision in 1989. The School Act in British Columbia required that public schools be opened by a reciting of a passage of scripture, followed by a recital of the Lord’s Prayer. So, when you showed up in 1970s or 1980s at school, it would be, you’re going to get a Bible passage and everyone’s going to say the Lord’s Prayer before we get going. That was eventually struck down by the in British Columbia in 1989 as a violation of the charter. But it wasn’t very long ago that that’s how we were conducting ourselves. So, I think we ought to have a little bit of historical perspective when we’re analyzing, you know, what is the impact of somebody showing up and doing a dance in the gymnasium or doing some demonstration or something. It wasn’t very long ago that we actually legislated and required sort of the dominant religious view to be used to indoctrinate our children in public schools. So, we’ve moved a long way in a short while. And I do think the facts of these things do very much matter.

Adam Stirling [00:20:48] It’s interesting second paragraph 77 of the decision here, we’ve got a couple of minutes left and Prime Minister Justin Trudeau is expected to be speaking momentarily. It says the petitioner submits the state sponsorship of one religious tradition that amounts to discrimination against all other such traditions. There can be no hierarchy of equality and freedom are to be maintained. Court then writes states duty of religious neutrality precludes state sponsorship of any religion, and it cannot justify its breach of neutrality by appealing to the fact that it is propagating a religious belief that was formerly suppressed. It looks like the affirmative action argument that used for religion would not be valid if my interpretation of that is correct.

Michael T. Mulligan [00:21:26] Yes, I think you’re correct. And what the judge was discussing there was this concept that Section 2a, infringement, can be shown if it’s demonstrated that the state has not engaged in what’s referred to as state neutrality. Which was a concept that, sort as an expression of secularism. You ought not to have the state sort of advocating for one religion or another. We ought not to have the school act mandating the Lord’s Prayer be said in the morning, for example. You could also have a breach if you could show that the activity hindered somebodies’ religious practices. But again, it’s very important what the facts were of the thing. This wasn’t a circumstance where they were requiring the children to say prayers or requiring them to engage in some practice or ceremony. This was simply a, as the judge found on the facts here, demonstrations so that they could see these things and that very much matters.

Adam Stirling [00:22:29] Michael Mulligan, again, thank you so much for your knowledge, your insight. It’s greatly appreciated it. Thank you. Until next week.

Automatically Transcribed on January 9, 2020 – MULLIGAN DEFENCE LAWYERS