Judge details loophole that makes it hard to get convictions for distracted driving in N.S.

A pair of court decisions released last week by a Nova Scotia Supreme Court justice say that poorly worded legislation is making it tough for the courts to hand down convictions in cases where individuals are accused of distracted driving with a cellphone.

She's not the first judge to point this out.

The two decisions were appeals of lower court rulings that acquitted drivers accused of distracted driving offences, both of which were upheld by Justice Christa M. Brothers.

In the section of the province's Motor Vehicle Act covering distracted driving and cellphones, the legislation notes, in part, that, "It is an offence for a person to use a hand-held cellular telephone or engage in text messaging on any communications device while operating a vehicle."

The issue is how to define use.

That's because the act prohibits using a cellphone while driving, but doesn't ban holding a cellphone.

A judge's plea

"Nova Scotia needs legislative clarity concerning when driver engagement with such devices is prohibited. Activities that one might expect, as a matter of common sense, to be captured by a provision on distracted driving are not necessarily prohibited by the current legislation," wrote Brothers in R. vs. Rankin.

At the original trial of the Rankin case, a police officer testified they spotted a driver travelling south on the Bedford Highway who had their phone held up at chest level and with their right thumb on the phone. On cross-examination, the officer said they didn't know what the driver was doing with the phone.

Previous court decisions

The accused was acquitted, with the justice of the peace citing a 2020 court decision, R. vs. Anand, in a case where a driver looked up directions on their phone while driving.

That 2020 decision pointed out the legislation does not ban using a GPS device.

"It is decidedly not the role of the courts to fill in the blanks and convict members of the public based on our views of whether the impugned conduct is just as bad as what the legislature in fact had banned," wrote Justice Duncan R. Beveridge.

In R. vs. Rankin, Brothers wrote there's a simple fix for the shortcomings of the wording in the Motor Vehicle Act: proclaim the Traffic Safety Act. The latter legislation was passed in 2018, but not proclaimed, and has wording that's much more precise about what is and isn't allowed while driving.

In the second decision released by Brothers — R. vs. Sogy — the case involved a Skip the Dishes driver who, as the original judge ruled, "was clearly, at best, looking at [their] phone" while driving. But the judge felt bound by the Anand case.

"So Mr. Sogy, I don't agree with the use of cellphones in cars but I find that under the legislation and the case law and the way it stands, you're not guilty," the judge said.

Brothers upheld this decision as well.

Court decisions show judges are frustrated, says law prof

Wayne MacKay, professor emeritus at Dalhousie University's Schulich School of Law, reviewed Brothers's decisions, which include many citations from judges who ruled on previous distracted driving cases.

"I think you can almost sense in some of the judgments themselves, frustration that they [the judges] are applying the proper rules of interpretation they feel they have to reach this particular legal conclusion, but they recognize that the effect of that conclusion really does not achieve the purpose of preventing distracted driving," he said.

MacKay said it's pretty clear the judges are trying to get the legislature to sort this out.

He also said the legislation makes it tough for police to collect enough evidence for prosecutions.

"Because it's not enough to simply see a person with a cellphone in their hand or with the light on even," he said. "And even if they have their thumb in the right place, they have to go further than that.

"And it would be extremely difficult for the police to have all that detailed information given the distance and the short time in which they would observe it."

Why the Traffic Safety Act hasn't been proclaimed

In 2021, Nova Scotia's public works minister said it would take three or four years for the Traffic Safety Act to be proclaimed. Kim Masland said the delays were because of massive amounts of data related to more than 100 years of previous road safety records that had to be entered into the system.

MacKay said a simple workaround would be to update the wording in the Motor Vehicle Act surrounding distracted driving.

CBC News asked the province for a timeline for proclaiming the Traffic Safety Act, but a spokesperson did not answer the question.

As for Brothers's decisions, Public Works spokesperson Gary Andrea said they cannot comment on court decisions.

"Distracted driving is one of the most common contributing factors in motor vehicle collisions, and a serious road safety issue," he wrote.