R. v. Ikede (A.E.), (2015) 366 N.S.R.(2d) 230 (SC)

• Judge: Campbell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 15, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 366 N.S.R.(2d) 230 (SC);2015 NSSC 264

R. v. Ikede (A.E.) (2015), 366 N.S.R.(2d) 230 (SC);

    1154 A.P.R. 230

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Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.052

Her Majesty the Queen (appellant) v. Ajirogho Enakeno Ikede (respondent)

(Ken. No. 437863; 2015 NSSC 264)

Indexed As: R. v. Ikede (A.E.)

Nova Scotia Supreme Court

Campbell, J.

October 23, 2015.

Summary:

Section 100D(1) of the Motor Vehicle Act made it an offence "for a person to use a hand-held cellular telephone or engage in text-messaging on any communication device while operating a motor vehicle on a highway". The Act did not define what was included in "to use". The accused was charged with distracted driving under s. 100D(1) for using the "Siri" feature on his iPhone to ask for directions. That action did not require him to look at his iPhone screen. The trial judge acquitted the accused. The Crown appealed.

The Nova Scotia Supreme Court dismissed the appeal, stating that "'Use' does not encompass all interactions with hand-held devices that have cellular telephone functionality. When the driver, without looking at the screen of the device, engaged a voice-activated navigational system related directly to the safe operation of the vehicle, through a hand-held electronic communication device, he was not 'using' a cellular telephone".

Motor Vehicles - Topic 2030

Regulation of vehicles and traffic - Manner of driving - General - Use of cell phone or other electronic device while driving (i.e., distracted driving) - Section 100D(1) of the Motor Vehicle Act made it an offence "for a person to use a hand-held cellular telephone or engage in text-messaging on any communication device while operating a motor vehicle on a highway" - Unlike distracted driving legislation in other provinces, the Nova Scotia Act did not define what constituted "to use" - The accused was charged with distracted driving under s. 100D(1) for using the voice-activated "Siri" feature on his iPhone to ask for directions - Although the accused was holding his iPhone in one hand, he did not look at his iPhone screen - The Nova Scotia Supreme Court affirmed the accused's acquittal - The court stated that "'Use' does not encompass all interactions with hand-held devices that have cellular telephone functionality. When the driver, without looking at the screen of the device, engaged a voice-activated navigational system related directly to the safe operation of the vehicle, through a hand-held electronic communication device, he was not 'using' a cellular telephone" - The accused was not "using" the iPhone in the context that s. 100D(1) was enacted to address (distracted driving) - The court stated that "In the context of distracted driving legislation an interpretation that broadens 'use' to include all purposeful interactions with a device having cellular telephone capability goes too far. It enables distinctions that have nothing whatsoever to do with distracted driving and are simply arbitrary".

Cases Noticed:

R. v. Ferguson (P.B.) (2013), 331 N.S.R.(2d) 196; 1051 A.P.R. 196; 2013 NSSC 191, refd to. [para. 27, footnote 9].

R. v. MacDonald (C.E.) (2014), 354 N.S.R.(2d) 101; 1120 A.P.R. 101; 2014 NSSC 442, dist. [para. 44].

Statutes Noticed:

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 100D(1) [para. 11].

Counsel:

James Fyfe, for the appellant;

Ajirogho Ikede (personally), for the respondent.

This appeal was heard on September 15, 2015, at Halifax, N.S., before Campbell, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 23, 2015.