A B.C. Supreme Court judge has dismissed a Surrey motorist乌鸦传媒檚 appeal of a provincial court judge乌鸦传媒檚 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乌鸦传媒檚 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乌鸦传媒檚 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 乌鸦传媒渓eaning乌鸦传媒� against him. The provincial court judge nevertheless found him guilty of holding his cellphone in a position it could be used, declaring that 乌鸦传媒渢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.乌鸦传媒�
Justice Shelley Fitzpatrick in Vancouver noted in her that 乌鸦传媒渢he issue at trial乌鸦传媒攁nd reiterated on this appeal乌鸦传媒攊s whether Mr. Mirza was 乌鸦传媒榰sing乌鸦传媒� his phone, in that he was 乌鸦传媒榟olding the device in a position in which it may be used.乌鸦传媒櫸谘淮綕
Mirza conceded his phone may have been touching his leg 乌鸦传媒渁 bit.乌鸦传媒�
乌鸦传媒淚 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 乌鸦传媒榣eaning on his body,乌鸦传媒櫸谘淮綕 Fitzpatrick noted. 乌鸦传媒淢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.乌鸦传媒�
But Fitzpatrick said she was bound by case law, as was the provincial court judge, by Court of Appeal decisions which 乌鸦传媒渃an dictate only one result here.
乌鸦传媒淚 am not at liberty, as Mr. Mirza had suggested I am, to disregard those decisions,乌鸦传媒� she said, and 乌鸦传媒渁ccordingly乌鸦传媒� she could not conclude there is any basis under the Criminal Code to question the provincial court乌鸦传媒檚 decision 乌鸦传媒渋n respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza乌鸦传媒檚 appeal is dismissed.乌鸦传媒�
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