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Achieving-Justice

Brainwashed over texting

Reader comments compelled me to write a follow-up to my column about the idiocy of our distracted driving laws.

There were a lot. And I wouldn’t want to leave my fan base hanging!

Actually, the comments were overwhelmingly negative, but sifting through those calling me and my ideas idiotic, skewed in judgment, half-backed, crazy, junk, garbage, pointless and vitriolic BS, I identified two themes that that I feel compelled to address.

One is about the level of government intervention in our lives.

One accused me of lobbying government “to stick their noses into MORE of our lives.” Another: “Laws are there to keep the sheep in line.”  Others: “Nanny state” and “You can’t change stupid!”

I agree that government shouldn’t be sticking their nose where it doesn’t belong.

But stick their nose in they did. And in the worst way.

At a time when cellphone use was exploding and the driving public was starting to realize that we should leave our phones alone, they misled drivers into believing that hands-free use was safe. Their idiotic law increased, instead of decreased, overall cellphone use while driving. And they doubled down on it, twice.

The only benefactor to the law, and they won big, was the hands-free technology industry.

The rest of us lost in increased health care expense, soaring insurance rates and very real personal losses.

Two wrongs don’t make a right. But there’s 10 years of damage that needs to be repaired. And I don’t see an alternative repair than very directly attacking the false perception that hands-free use is safe.

Another theme is the perception that “looking down and texting” is the real problem, and that the law banning hand-held cellphone use was enacted to stop that dangerous behaviour.

It is a prevalent and understandable perception. We can easily get our heads around the danger of taking our eyes off the road. It is less easy to grasp how there could be a danger when we are looking out of the windshield.

And our “distracted driving” laws have reinforced that perception.

There is no reference to that rationale in the discussion paper our government put together (and ignored) to inform their cellphone laws.

Worse, it turns out that “looking down and texting” is no worse than voice to text.

The two were compared in an April 2013 study: An evaluation of the effectiveness of voice-to-text programs at reducing incidences of distracted driving. The abstract notes: “Results indicate that driver reaction times were nearly two times slower than the baseline condition, no matter which texting method was used.” A quote from the executive summary: “These findings suggest that using voice-to-text applications to send and receive text messages while driving do not increase driver safety compared to manual texting.”

Here is a helpful video explaining the study.

And here is a link to infographics provided by the United States National Safety Council, one of which notes: “New studies show using voice-to-text is more distracting than typing texts by hand.” I have requested copies of the studies referred to. E-mail me if you would like me to share them.

The idiotic law has entrenched the dangerous and false message that hands free is safe, and that “looking down and texting” is the worst evil.

And drivers have been brainwashed to such an extent that a columnist exposing the clear science against those perceptions is subjected to name calling.

It is critically important that drivers learn that there is no benefit to using hands free technology. Please read the materials I have referenced and watch the video. And please share this important information with others.



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'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.



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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.



More Achieving Justice articles

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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.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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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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