A B.C. Supreme Court judge has dismissed a Surrey motorist91裸聊视频檚 appeal of a provincial court judge91裸聊视频檚 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 Mirza91裸聊视频檚 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 driver91裸聊视频檚 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 91裸聊视频渓eaning91裸聊视频� against him. The provincial court judge nevertheless found him guilty of holding his cellphone in a position it could be used, declaring that 91裸聊视频渢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.91裸聊视频�

Justice Shelley Fitzpatrick in Vancouver noted in her that 91裸聊视频渢he issue at trial91裸聊视频攁nd reiterated on this appeal91裸聊视频攊s whether Mr. Mirza was 91裸聊视频榰sing91裸聊视频� his phone, in that he was 91裸聊视频榟olding the device in a position in which it may be used.91裸聊视频�91裸聊视频�

Mirza conceded his phone may have been touching his leg 91裸聊视频渁 bit.91裸聊视频�

91裸聊视频淚 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 91裸聊视频榣eaning on his body,91裸聊视频�91裸聊视频� Fitzpatrick noted. 91裸聊视频淢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.91裸聊视频�

But Fitzpatrick said she was bound by case law, as was the provincial court judge, by Court of Appeal decisions which 91裸聊视频渃an dictate only one result here.

91裸聊视频淚 am not at liberty, as Mr. Mirza had suggested I am, to disregard those decisions,91裸聊视频� she said, and 91裸聊视频渁ccordingly91裸聊视频� she could not conclude there is any basis under the Criminal Code to question the provincial court91裸聊视频檚 decision 91裸聊视频渋n respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza91裸聊视频檚 appeal is dismissed.91裸聊视频�

tom.zytaruk@surreynowleader.com
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