FILE PHOTO - A woman uses an iPad while behind the wheel of a vehicle stopped in traffic at a red light in downtown Vancouver on Monday, October 20, 2014. British Columbia is moving to designate distracted driving as a high risk behaviour, which will result in penalty increases for drivers.

Image Credit: THE CANADIAN PRESS/Darryl Dyck

Is it distracted driving if you are holding a cell phone while behind the wheel but not using it? What if the phone is dead? What if you have an app that immobilizes while in motion?

Since B.C. announced its crackdown on distracted driving while holding an electronic device, the laws have never been clear. To answer the previous three questions: So far in B.C. courts have said yes to the first and second but not the third. 

But it's the case of Patrick Tannhauser — whose distracted driving charge was dismissed because his cell phone was immobilized by an app — that may finally bring some clarity to the law. In a decision this week, the B.C. Court of Appeal agreed to hear a Crown appeal of the case seeking conviction. Justice David Tysoe said the law requires interpretation. 

"I am satisfied that the issues are of importance," he said. "Many drivers in British Columbia carry their smartphones in their vehicles and are entitled to guidance as to what circumstances can give rise to an offence."

Kyla Lee, a leading criminal defense lawyer on the subject, says the case will be crucial to bringing clarity.

“This case has huge implications for drivers everywhere in B.C.,” she says. “As a disputant in traffic court, when you go you have no certainty about what's going to happen when there’s these conflicting decisions. So it’s so important for the court to reconcile those conflicting judgements.”

The outcome of this case may determine if phone disabling apps will hold any merit when fighting a distracted driving ticket.

This case may not only affect the drivers of the province, but also have an impact on a project being planned by ICBC.

Currently, ICBC is considering offering programs to drivers in which they install an app to disable the phone while driving, and may receive an insurance discount. Lee says that if the Crown wins the case, it will render these apps unnecessary, the Vancouver lawyer says.

“If people aren’t supposed to be having their phone at all,  even with the immobilizer app in place, it undermines what ICBC is trying to do to save people money, and it arguably interferes with the goals of the operations of ICBC,” she says.

She is concerned that Tannhauser may not win his case due to the fact he is representing himself. She says this case has significant legal impact, and many lawyers would be eager to take on the case.

“Lots of lawyers, including myself, would be interested in working on a case like that just because of it’s importance to the legal system.”

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