Man fined for 'holding' cellphone
Lawyer says dangerous precedent set, arguing man wasn't using device while driving
John McFadden
Northern News Services
Wednesday, May 27, 2015
SOMBA K'E/YELLOWKNIFE
A lawyer believes a dangerous precedent has been set after his client was convicted of distracted driving for merely holding his cellphone while at the wheel.
The man, who Yellowknifer has chosen not to name, was found guilty after pleading his innocence to justice of the peace Kevin Dennis a week ago of driving while using a restricted electronic device and received a $50 fine.
Defence lawyer Tu Pham said the decision leaves the public confused about exactly what the law means. The word "use" is what is unclear here, he said.
"I think the plain language on using a cellphone means texting, making a phone call, browsing the Internet, any kind of electronic use it was designed for," Pham said. "When you are holding it, that's no different than holding a chocolate bar."
According to Pham, a municipal enforcement officer pulled up beside the man on Old Airport Road near Range Lake Road back in February and saw him holding the cellphone.
"The court ruled that simply holding the cellphone constitutes using it," Pham said.
"I respect the court's decision but it is problematic and unreasonable."
There was no evidence at trial suggesting the device was on at the time, Pham said.
"He freely admitted he was holding his cellphone. The only issue was whether holding your cellphone constitutes using it," Pham said. "The officer testified that he did not observe the phone to be on. He didn't say that it was off. He simply could not state that it was on.
"The reason he had his phone in his hand was because it was uncomfortable in his pocket and he removed it and had it in his hand while he was trying to figure out what to do with it," he said.
That testimony was not contested by city lawyer Kerry Penney who was prosecuting the case, Pham said.
The man received the $50 fine and was ordered to pay an $8 surcharge. That was reduced from the $280 fine and $40 surcharge he initially faced. Dennis gave no reason for lowering the fine, according to Pham.
The NWT Department of Transportation more than doubled the fines for distracted driving offences from $115 just under a year ago.
City lawyer Kerry Penney said she was pleased with the court's decision adding she was glad that the justice of the peace did not interpret the legislation too narrowly.
