A B.C. Supreme Court judge has dismissed a Surrey motorist鈥檚 appeal of a provincial court judge鈥檚 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鈥檚 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鈥檚 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 鈥渓eaning鈥� against him. The provincial court judge nevertheless found him guilty of holding his cellphone in a position it could be used, declaring that 鈥渢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.鈥�

Justice Shelley Fitzpatrick in Vancouver noted in her that 鈥渢he issue at trial鈥攁nd reiterated on this appeal鈥攊s whether Mr. Mirza was 鈥榰sing鈥� his phone, in that he was 鈥榟olding the device in a position in which it may be used.鈥欌��

Mirza conceded his phone may have been touching his leg 鈥渁 bit.鈥�

鈥淚 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 鈥榣eaning on his body,鈥欌�� Fitzpatrick noted. 鈥淢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.鈥�

But Fitzpatrick said she was bound by case law, as was the provincial court judge, by Court of Appeal decisions which 鈥渃an dictate only one result here.

鈥淚 am not at liberty, as Mr. Mirza had suggested I am, to disregard those decisions,鈥� she said, and 鈥渁ccordingly鈥� she could not conclude there is any basis under the Criminal Code to question the provincial court鈥檚 decision 鈥渋n respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza鈥檚 appeal is dismissed.鈥�

tom.zytaruk@surreynowleader.com
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