Campbell River courthouse. Google maps

Listening to podcast off phone app while driving not distracted driving, B.C. judge rules

Campbell River man appeals ticket, saying he was not touching the phone while podcast played

A Campbell River man successfully appealed a distracted driving ticket after the judge ruled that hands-free listening to a podcast with your phone beside you does not constitute a prohibited use of a cellphone as defined by the Motor Vehicle Act.

“None of those prohibited forms of ‘use’ is engaged by passively listening to an audio broadcast that is initiated through a cellphone before a driver enters their vehicle,” Justice Peter G. Voith said in his reasons for Judgment dated Jan. 6 in Campbell River.

Ryan Michael Bleau disputed a ticket for driving while using a phone but lost his case on Feb. 25, 2020. He was issued a ticket for using an electronic device while driving contrary to s. 214.2 of the Motor Vehicle Act. Bleau was alone in his car and was driving to work and did not touch or otherwise interact with his phone at any point while driving. The phone was, however, playing a podcast through the speakers of the sound system of his truck, linked wirelessly by way of a Bluetooth connection.

“At all material times the phone was located in the cup holder of the centre console between the driver and passenger seats,” Justice Voith said. “The phone was placed loosely in the cup holder, held in place by only the rubber grommet or seal of the cup holder. It was not securely fixed to the vehicle by any magnetic or physical implement, and the appellant accepted that nothing adhered the phone to the cup holder.”

The Judicial Justice, in the original Feb. 25, 2020 conviction, concluded that the appellant had used an electronic device to play a podcast through his car stereo without the phone being firmly affixed to the vehicle and that that conduct constituted a “technical” violation of s. 214.2 of the Act.

But the appeal court judge Voith, decided that Bleau did not engage in a “use” of the phone that is prohibited under the Act or under the Use of Electronic Devices While Driving Regulation.

“The fact that his phone, through which a podcast was playing, was not secured in his vehicle or on his person is not a form of ‘use’ or a prohibited activity under the Act or Regulation,” Justice Voith said.

Bleau drove into the parking lot at his workplace when he was pulled over by a police officer who said he saw Bleau’s right hand holding his phone to his ear as he drove down the road. Bleau denied that was the case and filed evidence, in the form of a phone bill, that shows there is no chargeable entry pertaining to the time prior to when the officer issued the ticket.

The judge in the original case indicated that he had no reason to disbelieve either officer or the appellant and that he was unable to resolve the inconsistency.

The appellant testified, and this evidence was not contested, that when he first started his vehicle the radio came on automatically. Shortly thereafter, perhaps “30 seconds to a minute later,” his Bluetooth “automatically kicked in as it is set up to do” and he thereafter listened to a podcast until he arrived at his workplace.

RELATED: $578: that’s how much your first distracted driving ticket will cost with recent premium hikes

RELATED: B.C. judge tosses ‘N’ driver’s claim he was just using phone to decline his mom’s call


@AlstrT
editor@campbellrivermirror.com

Like us on Facebook and follow us on Twitter

BC Supreme CourtCampbell Riverdistracted driving

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A Transit Police officer and another driver were injured on Nov. 4 in a traffic crash while the officer was responding to another officers call for help catching a man who escaped custody. (Photo: Shane MacKichan)
Police watchdog investigating Surrey crash that injured transit cop, another driver

Crash happened 11 p.m. Nov. 4, at 128th Street and 93rd Avenue in Cedar Hills

The Delta Hospice Society operates the Harold & Veronica Savage Centre for Supportive Care (pictured) and the Irene Thomas Hospice in Ladner. (The Canadian Press photo)
Fraser Health to evict Delta Hospice Society, open new hospice beds next door

Health authority will serve DHS 30 days’ notice when service agreement expires Feb. 25

Jobs Minister Ravi Kahlon shared a handwritten note his son received on Jan. 13, 2021. (Ravi Kahlon/Twitter)
Proud dad moment: Kahlon’s son receives handwritten note for act of kindness

North Delta MLA took to Twitter to share a letter his son received from a new kid at school

Delta View Care Centre (Google Street View image)
16 new COVID-19 cases, one death, in Delta care facilities

Ministry releasing weekly report on long-term care, assisted and independent living facility cases

Music therapist Felicia Wall in the music room at Phoenix Society in Surrey. (submitted photo)
Eclectic album showcases songs recorded by Surrey residents in recovery

Project at Phoenix Society took about six months to complete, with help of music therapist

Health Minister Adrian Dix and provincial health officer Dr. Bonnie Henry head for the press theatre at the B.C. legislature for an update on COVID-19, Jan. 7, 2021. (B.C. government)
B.C.’s COVID-19 spread steady with 509 new cases Friday

Hospitalized and critical care cases decline, nine deaths

Chief public health officer Dr. Theresa Tam provides an update on the COVID-19 pandemic in Ottawa on Friday, Jan. 8, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Canada’s top doctor says to avoid non-essential travel as B.C. explores legal options

Premier John Horgan says he is seeking legal advice on whether it can limit interprovincial travel

Harvest Meats is recalling a brand of Polish sausages, shown in a handout photo, due to undercooking that may make them unsafe to eat. The Canadian Food Inspection Agency says the recall affects customers in Alberta, British Columbia, Manitoba, Northwest Territories, Ontario and Saskatchewan. THE CANADIAN PRESS/HO-Canadian Food Inspection Agency Mandatory Credit
Harvest Meats recalls sausages over undercooking

Customers are advised to throw away or return the product

Seasonal influenza vaccine is administered starting each fall in B.C. and around the world. (Langley Advance Times)
After 30,000 tests, influenza nowhere to be found in B.C.

COVID-19 precautions have eliminated seasonal infection

Martin Luther King Jr. addresses the crowd during the march on Washington, D.C., in August of 1963. Courtesy photo
Government announces creation of B.C.’s first anti-racism act on Black Shirt Day

B.C. Ministers say education “a powerful tool” in the fight for equity and equality

Black Press media file
Port McNeill driver tells police he thought the pandemic meant no breathalyzers

Suspect facing criminal charges after breathalyzer readings in excess of 3.5 times the legal limit

Forestry companies in B.C. agree to abide by the cedar protocols based on traditional laws of the First Nation members of the Nanwakolas Council. (Photo courtesy, Nanwakolas Council)
Landmark deal sees B.C. forest firms treat big cedars like a First Nation would

Western Forest Products, Interfor among companies to adapt declaration drafted by Nanwakolas Council

The Fraser Valley Regional Library board of directors recently finalized its budget. (Black Press Media files)
Fraser Valley Regional Library budget not enough to keep up with booming population

Almost $5 million of books, DVDs, and ebooks to be purchased in 2021

A northern resident killer whale shows injuries sustained by a collision with a vessel in B.C. waters. (Photo supplied by Ocean Wise Conservation Association)
Coast Guard ramps up protections for B.C. whales

First-ever Marine Mammal Desk will enhance cetacean reporting and enforcement

Most Read