Citation: ☼ R. v.

Grzelak
2019 BCPC 65
Date: ☼20190408
File No: AJ10992213
Registry: Richmond

2019 BCPC 65 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Small Claims

BETWEEN:
REGINA
CLAIMANT

AND:
PATRICK HENRY GRZELAK
DEFENDANT

REASONS FOR JUDGMENT

OF THE
JUDICIAL JUSTICE ADAIR

Counsel for the Claimant: Cst. Parmer

Appearing on his own behalf: P. H. Grzelak
Place of Hearing: Richmond, B.C.
Date of Hearing: March 28, 2019
Date of Judgment: April 8, 2019
R. v. Grzelak Page 1

[1] The Defendant, Patrick Henry Grzelak, is charged that:

On October 12, 2018, in Surrey BC he did hold or use an electronic device while
driving contrary to Section 214.2 of the Motor Vehicle Act.

[2] Both witnesses were credible and in my view the relevant facts are not in dispute.

2019 BCPC 65 (CanLII)

I do note that the Defendant was not cross examined by the Crown.

[3] The Defendant was alone in his black Mercedes, coming from work after a long
day. He was driving North bound on 152 Street in Surrey BC.

[4] His Apple iPhone was in the centre cubby hole in the dashboard, at the front end
of the console. The wire for his ear buds were plugged into the phone. He had the two
ear buds in his ears, one on each side. The cell phone battery was dead. The screen
was not illuminated, no music, no conversation or anything else was coming through the
earbuds.

[5] The issue is whether the Defendant was “using” the cell phone as that term is
defined in Section 214.1 of the Motor Vehicle Act.

214.1 In this Part:

"electronic device" means
(a) a hand-held cellular telephone or another hand-held electronic
device that includes a telephone function,
(b) a hand-held electronic device that is capable of transmitting or
receiving electronic mail or other text-based messages, or
(c) a prescribed class or type of electronic device;
"Use", in relation to an electronic device, means one or more of the
following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device's functions;
(c) communicating orally by means of the device with another
person or another device;
(d) taking another action that is set out in the regulations by means
of, with or in relation to an electronic device.

[6] On the facts, (b), (c), and (d) of that definition do not apply.
R. v. Grzelak Page 2

[7] Was the defendant “holding the device in a position in which it may be used”? If
so a conviction must follow, even if the battery was dead, and even if the Defendant
was not operating one of the functions of the device (such as the telephone or GPS
function).

2019 BCPC 65 (CanLII)

[8] See, for example, R. v. Judd, 2015 BCSC 1926 at para. 8:

[8] it does not matter if Mr. Judd was not talking, because the section
allows for conviction if in fact he was simply using it by holding the device
in a position in which it may be used, as the section indicates.

[9] Obviously, here the cell phone itself was sitting in the centre cubby hole, and was
not in the defendants hands, or in his lap. But that is not the end of the matter. In my
view, by plugging the earbud wire into the iPhone, the defendant had enlarged the
device, such that it included not only the iPhone (proper) but also attached speaker or
earbuds. In the same way, I would conclude that if the defendant had attached an
exterior keyboard to the device for ease of inputting data, then the keyboard would then
be part of the electronic device.

[10] Since the earbuds were part of the electronic device and since the ear buds were
in the defendants ears, it necessarily follows that the defendant was holding the device
(or part of the device) in a position in which it could be used, i.e. his ears.

[11] With respect to the issue of the dead battery I rely with approval on the
unreported case of R. v. Corrigan (AH79560051, March 18, 2015, Vancouver Registry,
Provincial Court of British Columbia) in which Judicial Justice Burgess considered the
Defendant’s argument that since the battery on his cell phone was dead and his phone
therefore was not capable of any function that he could not be guilty of the charge. In
rejecting that proposition, the Court specifically highlighted the working of Section 214.1
(a) of the Motor Vehicle Act, namely that simply holding the device in a position in which
it may be used constitutes the offence, even if it is temporarily inoperative.

[12] I find the defendant guilty of the charge.

R. v. Grzelak Page 3

__________________________
Judicial Justice B. Adair
Provincial Court of British Columbia

2019 BCPC 65 (CanLII)