• A. Hannaford (law student)

Does the proposed Manitoba distracted driving legislation go too far?


Distracted driving is one of the hottest topics in modern highway traffic safety circles. Distracted drivers have been reportedly involved in over 11,000 accidents in Manitoba last year, with over 60,00 tickets issued to drivers caught on a mobile device. The current Manitoba law, as per section 215.1(2) of the Highway Traffic Act, is that no one can use a cellular device by hand while driving unless they pull over and are stationary, or the device is configured to be used in a hands-free manner.

In 2009, Bill 5 amended the Highway Traffic Act to include section 215.1(1). The Act defines a “hand-operated electronic device” as a cell phone, other electronics that have send/receive functions, or any other electronic device that is normally held or is required to be held in the user’s hand during normal use. The statute also defines “use” as holding in a position which may be used, operating the device, communicating via the device or looking at the display. The statute does not currently define what a “hands-free manner” means. Current fines for distracted driving start at $200.00 and 5 demerits.

The proposed Provincial Bill 17, The Drivers and Vehicles Amendment and Highway Traffic Amendment Act, hopes to impose some seriously stiff penalties on drivers caught using a hand-operated electronic device while driving. Any person reasonably believed to be using a handheld electronic device while driving is subject to an automatic license suspension.

Section 265.2(1) of the proposed bill obligates peace officers to immediately seize the licenses of suspected wrongdoers and issue them a temporary license to get their vehicles home. For the first offence under the new bill, distracted drivers will receive a 3-day suspension. The penalty increases to a 7 days suspension for a second offence within a ten-year period.

Bill-17 places an alarming amount of discretion in the hands of peace officers. If peace officers only require a visual confirmation of “use” of a handheld device, according to the definitions of “use” in section 215.1(2) of the Highway Traffic Act, a person could be subject to a 3 or 7-day license suspension because a peace officer reasonably believes that they looked at the display screen of their electronic device.

In 2015, the Province introduced the Safer Roads Act, which allowed roadside suspensions for people charged but not convicted of dangerous driving, such as speeding 50 kilometers over the speed limit, racing and fleeing from police. This legislation was put in place to save lives put at risk by high risk drivers. High-risk driving offences are markedly less common than distracted driving in Manitoba, with only 185 notices issued between 2015-2016.

Identifying high risk driving offences is also less subjective than identifying distracted driving. Speed can be measured using fairly reliable technology, racing and flight from police offences are much more obvious than potentially looking at or holding an electronic device.

The unquestionable objective of the proposed Bill 17 is to address a serious problem in the province that does cause accidents and can lead to loss of life. However, the new law gives such a high degree of discretion to peace officers, that it has the potential to infringe Manitobans’ s. 11(d) Charter rights.

Automatic licence suspension is a fairly serious penalty that, so far, has been reserved for markedly dangerous driving offences, including driving while intoxicated. A suspension due to suspected distracted driving offers an accused no chance to defend themselves before they are punished. The charge is based solely of the subjective visual evidence of the peace officer, and the penalty is relatively severe. Comparatively, a charge of driving while intoxicated relies on roadside breathalyzer confirmation before suspension action is taken. Driving 50 kilometers over the speed limit also relies on radar confirmation that the accused was actually driving at that speed. Distracted driving has no such reliable roadside test to produce a persuasive evidential confirmation of the suspected circumstance.

Section 11(d) of the Charter ensures the presumption of innocence for anyone charged with an offence. If a person is charged under the proposed Bill 17, they would be subject to a punishment that is usually awarded after conviction of serious traffic offences, and, except for the few exceptions above, is usually decided at the discretion of a judge. While the ability to have a license is a privilege, absent persuasive evidence to the contrary, police should not be afforded the power to automatically suspend drivers without due process.

Bill 17 is not without its supporters; Manitoba CAA head Mike Magar says the proposed legislation doesn’t take the punishments far enough. Magar says that drivers caught driving while distracted should not be allowed a temporary licence to get their vehicles home before the suspension takes place. Immediate roadside suspensions would place an incredible burden on provincial resources; every person charged with a distracted driving charge would have their car immediately impounded.

Regardless of if the suspension is immediate or after a 24-hour grace period, the suspension would nonetheless be issued without a conviction. If the proposed legislation was subject to a minimal impairment analysis under section 1 of the Charter, a grace period or an immediate suspension ultimately has the same effect on the 11(d) right. In either situation, an accused is still subject to a fairly serious punishment, based on subjective evidence, before being found guilty in a fair trial. Despite the seriousness of the distracted driving problem, the offense is not serious enough to reverse the presumption of innocence.

If the province wants to impose suspensions for distracted drivers, it is more than entitled to do so. The offense is a serious, modern day issue, and the current fine penalty may not be an effective enough deterrent to properly address the problem. However, licence suspensions are a fairly serious penalty, and should only be lawfully prescribed where there is tangible evidence of likelihood of guilt, or where the offender has been actually convicted of the crime in a court of law.

References:

Bill-17, The Drivers and Vehicles Amendment and Highway Traffic Amendment Act, 3rd Sess, 41st Leg, Manitoba, 2017.

Bill-5, The Safer Roads Act, 4th Sess, 40th Leg, Manitoba, 2014.

The Highway Traffic Act, RSM 1985, c. 3.

http://www.cbc.ca/news/canada/manitoba/manitoba-distracted-drivers-to-face-stiffest-penalties-in-canada-1.3100877

http://www.cbc.ca/news/canada/manitoba/distracted-driving-bill-manitoba-defence-lawyers-1.4583266

https://www.winnipegfreepress.com/local/distracted-driving-bill-a-little-soft-caa-manitoba-477329393.html

http://www.cbc.ca/news/canada/manitoba/mpi-suspensions-convictions-bill34-serious-driving-rights-1.3719008

https://www.ctvnews.ca/canada/some-provincial-plans-to-crack-down-on-distracted-driving-go-too-far-lawyer-1.3849748

#Distracteddriving #handoperatedelectronicdevice #automaticlicensesuspension #11dCharterrights #presumptionofinnocence