'Idiotic' cellphone law

Canada’s first impaired driving law, passed in 1921, was called “driving while intoxicated.”

There was no messing around with the cause of intoxication. 

What if our government had done that, though? What if they had prohibited only beer induced intoxication, and intoxication from other substances remained legal?

Ridiculous, I know. But please stick with me.

The driving public would have been confused.

We trust our government to pass road laws that will keep us safe.

How could beer intoxication be more dangerous than wine or whiskey intoxication?

But it must be. Why else would they have done that?  There must be some science behind it.

Would that have improved road safety?

The driving public would be lulled into thinking that intoxication isn’t really the problem. It’s that particular beer intoxication that’s unsafe.

There would be less beer drinking. But the overall level of intoxicated driving would go up.

What an idiotic law! What irresponsible road safety policy!

But that’s exactly what our government has done with distracted driving.

Gotta hand it to the government. They did their research. They did a comprehensive review of the science behind cellphone use and driving in 2009.

They reviewed and acknowledged the science comparing hand-held and hands-free cellphone use. Using the intoxication analogy, the science would have found beer intoxication to be no different from vodka intoxication.

Quoting from the Executive Summary of their discussion paper: “Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cellphone use.”

They looked at what other governments were doing. They noticed that others were banning only the hand-held behaviour.

They considered what impact that might have on road safety. And they specifically recognized the danger:

“Legislation that bans only hand-held cell conversations conflicts with the research that has consistently found no difference in the degree of distraction between hand-held and hands-free cell conversations. As a result, these laws may not provide the expected benefits and may even generate harmful indirect impacts such as a false sense of security for those who talk on hands-free devices while driving.”

But they ignored the science. And they ignored the danger. 

They ignored the results of their own research that other governments presumably had not done their due diligence to canvass.

They followed in the footsteps of other governments and banned only hand-held cell phone use while driving.

As predicted, the idiotic law did nothing to reduce cellphone use while driving.

Cellphone users simply purchased hands-free technology. Those who had previously thought it was dangerous were lulled into a false sense of having been led to believe that it was safe. Overall cellphone use while driving went up instead of down.

A downward trend of crash statistics in British Columbia stalled, and then reversed.

How did we respond?  We doubled down on that idiotic law. Penalties for hand-held cellphone use while driving went up, effective June 1, 2016. While the identically dangerous hands-free behaviour remained legal.

We did it again with another increase as of March 1, 2018. In the lead-up to that change, our attorney general at the time was quoted as saying: “Once implemented, this change will treat distracted driving as the serious high-risk behaviour that it is; one that is on par with impaired driving and excessive speeding.”

You’d think the government had shares in hands-free technology! Or it had some incentive to fill our hospitals; or to drive ICBC into the ground.

Because they still had the science in their hands. They had done their research. And nothing had changed. In fact, there have been more recent studies indicating that hands-free cellphone use (particularly voice to text) might be even more dangerous than texting manually.

I’ve written on this topic a number of times. I’ve lobbied my local MLA and the premier to change this idiotic law. I’ve met with the West Kelowna and Kelowna mayors asking that they show leadership by imposing policies prohibiting municipal employees and contractors from cellphone use while driving. I’ve lobbied CBC radio to show leadership by not taking calls from those talking on cellphones while driving. I’ve circulated a petition on change.org.

And I’ve gotten nowhere.

Anyone else’s blood boiling about this issue? Please share this column with others. And contact me directly if you have the passion and energy to help make a change.

Vigilante justice is not OK

Will you ever catch a thief red-handed, or prowling through your home? Unlikely.

But if you do get “lucky” enough to catch a thief in the act, do the Criminal Code provisions under headings of “Defence of Person” and “Defence of Property” allow you to open up a can of whoop-ass?

No. They don’t.

They allow only as much force as is reasonably necessary to protect yourself or your property.

And if a thief is going to hightail it immediately on being noticed, that would mean stepping out of their way.

I am going to give you two case examples as illustrations.

R. v. Bergman and Peterson, 2017, BCPC 334, involved an altercation between two couples: one in their mid-late 60s and the other in their late 20s.

The judge noted that the young man, a cement finisher, was “relatively large and very physically fit.” Predictably, things did not go well for the older couple.

They went to the hospital. The fellow had bruising to his left ear and exquisite tenderness in the left ribs. His wife had tenderness in an area of her back. Police were called at the suggestion of the examining doctor.

Believing the version of events given by the older couple, the young couple were charged. The fellow faced charges of assault causing bodily harm and uttering threats and his fiancé faced an assault charge.

The trial got to the true story.

It turned out that the older couple had been confrontational with the younger about their dogs. Things got physical when the highly irate older fellow approached the young couple in an aggressive manner with his hands full of fresh dog feces.

Please read the case for the play-by-play. It’s a fun read. In the end the judge concluded that the young couple were just defending themselves.

And they would have been acquitted of all charges except for one thing. After having acted reasonably in self-defence, the younger man emptied his beer onto the older fellow who was laying on the ground with bruised ribs. And that one action resulted in an assault conviction.

R. v. Meszaros, 2013 ONCA 683 tells the story of a property owner catching two young fellows poaching in a privately stocked trout pond on his 10-acre property.

Mr. Meszaros, a 60-year-old sportsman, yelled at them from his porch, his loaded 20-guage double-barrel shotgun in hand, telling them to stay put and not move. Not surprisingly, they began to run. And the property owner took pursuit with his shotgun.

Mr. Meszaros caught up with one of the two fellows who had fallen. There was nothing of a physical altercation. The encounter ended with the young fellow putting the two fish back in the pond and apologizing.

What followed makes my heart warm. Thinking he could beat the older man in a scrap, the better runner returned after the shotgun was set aside. He was bested by Mr. Meszaros.

Mr. Meszaros faced criminal charges related to the scrap as well as assault with a weapon. You might not know that accosting or impeding someone while openly carrying a weapon is an assault, even if there is nothing of physical contact.

He was acquitted as related to the consensual scrap. A jury convicted him of assault with a weapon.

The conviction was appealed.

The appeal court considered the various provisions of the Criminal Code that could excuse Mr. Meszaros’s behaviour, such as defence of property and citizen’s arrest.

The appeal was dismissed, because it was open to the jury to find that his purpose in chasing the young men with his gun was not in defence of his property or to effect a citizen’s arrest, but to frighten and teach them a lesson.

This concludes my three-column series on this subject. The law allows you to defend yourself and your property. And in appropriate circumstances to effect a citizen’s arrest. But you become the criminal if you go further than what’s reasonably necessary or your purpose is vigilante justice.

To make a citizen's arrest

The concerned father I wrote about last week was unable to use “citizen’s arrest” to excuse his minimal assault (grabbing the arm) of his daughter’s tormenter. I am going to explain why. And whether it can be used to excuse assaulting a would-be thief checking vehicle door handles in residential driveways.

Any application of force to another person, without their consent, is an assault pursuant to section 265 of the Criminal Code.

But our Criminal Code allows for the application of force to another person in certain circumstances, one being when you are making a citizen’s arrest, which falls under section 494.

Which brings us to the case I cited last week, of R. v. Wilson, 2019 ABPC 176. Mr. Wilson’s eight-year-old daughter had been bullied by a 17-year-old boy. After the girl’s bicycle was smashed a second time, Mr. Wilson came down to the neighbourhood park and had her daughter point out the boy.

Mr. Wilson and the boy told dramatically different stories about what happened next. The boy’s version was serious enough that Mr. Wilson was the one charged. At trial, the judge believed Mr. Wilson’s version, which was that the only time he touched the boy was when he had grabbed his arm saying: “This will end now. We can go to the police or your parents.”

However minimal it might be, grabbing the boy’s arm was an assault. Mr. Wilson tried to use section 494, the “citizen’s arrest” provision as a defence.

Section 494 is very specific. 

It allows you to arrest someone who is actually committing an indictable offence – section 494(1)(a). Leaving aside what “indictable” means, this did not help because the boy was not committing an offence at the time.

It also allows you to arrest someone who you believe has committed a criminal offence. But only if the offender is being freshly pursued by those with the lawful authority to make an arrest – section 494(1)(b). Not applicable either.

Mr. Wilson was convicted. Was that a travesty of justice? It sure feels so. But citizen’s arrest provisions are restricted for good reason. Physical confrontations, particularly between criminals and those without police training, are recipes for disaster.

So what about if you catch someone wandering down your street checking door handles? They’ve not actually stolen anything, but they’re obviously up to no good. Are they committing an offence that allows you to make a citizen’s arrest? 

Section 177 of the Criminal Code covers the situation, but only if it happens at night: “Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence…”.

But it is not an “indictable” offence, so section 494(1)(a) referred to above is not applicable.

Fortunately for the more vigilante minded among us, the citizen’s arrest provisions also allow the owner of property (or someone authorized by the owner) to make a citizen’s arrest if you catch someone in the act of committing any old criminal offence (indictable or not) related to the property – section 494(2).

So a neighbourhood watch patrol, armed with the authority of all property owners in a neighbourhood, could make a citizen’s arrest of someone they catch prowling around properties in the neighbourhood. 

But before you jump into action against a prowler, please consider the following:

  • Your purpose must be making an arrest. It cannot be the dishing up of vigilante “justice”;
  • Whatever tough guy you think you are, a frightened and threatened offender might cause you harm;
  • You are bound by the same restrictions as the police, set out in section 25 of the Criminal Code https://laws-lois.justice.gc.ca/eng/acts/C-46/page-5.html#h-115622, to use only as much force as is necessary; and,
  • Immediately after making the arrest, you must deliver the offender to the police – section 494(3).

And you face the risk realized by Mr. Wilson. The offender might tell a tall tale to the police that could result in you being the one facing criminal charges. And if you are found to have used excessive force that injures the offender, you could face a civil lawsuit and have to pay compensation.

Next week, I will conclude this series with a discussion about what you are permitted to do if you catch someone in the act of actually stealing your property, or having entered your home.


A crime to protect yourself?

Brazen thieves rifle through our vehicles, steal parcels off our porches and “shop” through our backyards.

Three weeks ago a thief had the audacity to wander through a Glenmore home in the wee hours of the morning, fleeing when he was discovered.

The police have nothing to go on unless you can identify the thief, which is next to impossible even with home surveillance footage.

It’s maddening. And it seems to be getting worse.

What does the law say about what we can do to protect our home, possessions and loved ones? (Thanks to Stuart, a reader who posed this question to me.)

Criminal law is not my area of legal expertise, but I was willing to do a bit of research and share the results.

I will start with a scenario where you see someone walking up the driveways on your street, pulling on vehicle door handles.

If you’re like me, you want to chase them down, grab them by the scruff of the neck and give them such a fright that they never come down your street again. But we would be committing a criminal offence — perhaps several!

Any application of force to another person, without their consent, is an assault pursuant to section 265 of the Criminal Code. And if you threaten to hurt them if they return, that’s “uttering threats” pursuant to section 264.1.

These lessons come from the Alberta case of R v. Wilson, 2019 ABPC 176.

It was undisputed that Mr. Wilson’s eight-year-old daughter was being bullied by a 17-year-old boy. The bullying included smashing the girl’s bicycle.

When the girl’s bicycle was smashed a second time, her dad took action. He came down to the neighbourhood park and his daughter pointed out the tormenter.

He grabbed the boy by the arm and said: “This will end now. We can go to the police or your parents.” The boy chose his mother’s.

When they got there, Mr. Wilson said that if Anthony touched his daughter, he would break his arm and legs.

When leaving the mother’s residence, Mr. Wilson called the police. Anthony told a completely different story to the police and tables were turned with Mr. Wilson facing a number of charges including forcible confinement, dangerous operation of a vehicle, assault and uttering threats.

The police didn’t have the benefit of a trial to sort out what really happened. They had no choice but to proceed with charges against Mr. Wilson in light of the serious allegations against him.

But the judge heard the evidence and accepted everything Mr. Wilson had to say about what had occurred.

The charges against Mr. Wilson were dismissed except for the very minor assault and the threat. And I’m guessing that if the law would have allowed it, the judge might have dismissed those charges as well.

Mr. Wilson tried to use the Criminal Code provision allowing a “citizen’s arrest,” to excuse the very minimal assault. But that provision did not apply and the judge concluded: “Without the right to arrest, the holding of the complainant’s arm is a technical assault and so he is guilty.”

As for the threat, Mr. Wilson argued he was entitled to threaten the boy to defend his daughter from future aggression. But the law does not support that entitlement. The judge noted: “I know of no basis for using the threat of extreme violence to defend his child from a future event.”

Might the defence of “citizen’s arrest” apply when chasing down a prowler who’s checking vehicle door handles? You’ll have to wait until next week for that answer, as well as discussion of other scenarios such as if you manage to catch someone actually making off with one of your belongings or discover a thief inside your home.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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