If I get a ticket for distracted driving, don’t police need to access my phone records to prove that I was using my phone? What if I was holding it for a second but I wasn’t texting anyone? How can they tell? – Mike, Victoria
When it comes to charging you for distracted driving in Canada, it’s the officer’s call.
Police don’t need cellphone records; they only need to prove that they saw you holding or watching your phone, a criminal defence lawyer said.
“The officer’s visual observation of a person using their phone is considered to be sufficient evidence. They don’t need [phone] data,” said Kyla Lee, a Vancouver-based criminal defence lawyer. “The logic is that cellphones are so ubiquitous, that it’s unlikely an officer would be mistaken about what they saw.”
In most provinces, including British Columbia, distracted driving laws ban holding or touching a hand-held electronic device. In B.C., that can include having the device in your lap and looking down at it. Most have exceptions for hands-free calling.
“The bans are for hand-held phones, not hands-free phones – generally it’s holding or manipulating the phone in some way [that’s going to get you in trouble],” said Robyn Robertson, chief executive officer of the Ottawa-based Traffic Injury Research Foundation (TIRF), a national non-profit. “So there are cases where people argue that the phone was something else of the same shape and size – they’ll say ‘I was holding a chocolate bar up to my ear.’”
Those laws don’t require proof that you were texting, on the internet or on a call, so police don’t need cellphone data to prove what you were doing.
Because distracted driving on its own is not a criminal offence, police can’t usually get a search warrant or production order for your cellphone records, Lee said.
“They have to be doing a criminal investigation, [where] distracted driving was also part of criminal driving,” she said.
For instance, police could request phone records if they’re investigating crimes including dangerous driving, impaired driving or criminal negligence causing death, Lee said.
For example, police used cellphone records to show that a B.C. driver was texting before she hit and seriously injured an 11-year-old girl in a crosswalk in 2017, she said.
What information can police get from your cellphone provider? Typically, they can get records of text messages and calls, Lee said.
“In very unusual circumstances, they could get carrier data for 5G/LTE traffic but that might not prove much because apps can be doing things in the background without being manipulated,” Lee said.
Incomplete picture?
While distracted driving laws vary by province, most don’t cover distractions that don’t involve a phone, including eating, drinking coffee, fiddling with your car’s touchscreen or reaching for something in the back seat.
But for those sorts of distractions, you could face a ticket for careless driving, Lee said. If those distractions cause injury or death, you could face criminal charges.
Anything that takes your focus off the road is a dangerous distraction, Robertson said.
“There are a lot of distractions you can suspect, but you can’t actually observe,” Robertson said. “A phone is one that’s a little easier because you can see the phone and or see if they were manipulating the phone or holding the phone.”
About one in four fatal collisions in Canada involves some sort of driver distraction – in 2021, the most recent year with available numbers, there were 359 deaths where at least one of the drivers was distracted.
That information comes from police reports and it’s not clear how many of those distracted driving cases involved a phone, Robertson said.
That’s because police collision report forms often won’t specify the type of distraction. They may simply list a cause as “inattentive driving.”
“They’re coded as inattention, which means they don’t know if it was a phone or if it was something else,” Robertson said. “They just know that distraction was involved.”
In a 2021 survey by the Canadian Automobile Association, 79 per cent of drivers said they had driven while doing something distracting.
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Jason Tchir