Who hasn't done... something a little out of bounds while driving? But who decides what out of bounds means? And how do those "bounds" get moved? Hugo Choquette (Law 201/701, Introduction to Canadian Law) takes us from the law of "sufficient care and attention" to how a judge defines those things in practice -- and how those definitions might have implications beyond the courtroom they're first heard in.

Eating while driving. Art: vdesrochers.com

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Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.  

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd, and I have once or twice texted while driving. I was just reading texts, not writing them, but it was distracted driving and I feel bad. Talking to the instructor in Law 201701, Hugo Choquette, I feel a little less bad. Not that I should look at my phone while driving but we're talking about a case that blows that out of the water when it comes to distracted driving. And then Hugo takes that case and really uses it to unpack how judicial decisions evolve over time and the effect of precedent on our legal system.

00:40 MS: It's an interesting conversation that really clarifies how judges think and how our judicial system works to shape law over time. This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian Law is brought to you by The Queen's certificate in law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: I am... I think I'm a strictly median driver. I'm not a great driver. I'm not a poor driver, but I'd be the first to confess that I am not... My hands are not always at the 10 and two position, or the nine and three, or whatever it's supposed to be these days. I have been known to glance at other things while driving. I adjust the radio while driving. But we're gonna talk today about something that kind of takes this to another level.

01:39 Hugo Choquette: Yeah.

01:40 MS: In terms of driving while doing other stuff.

01:41 HC: Absolutely, and I have to say, one of the reasons that the story caught my eye was because I've been known to have a coffee in one hand and my other hand on the wheel pulling on to the 401, and my wife always, who's a nervous driver, always tells me I shouldn't be doing that. So I was sort of caught by the story and what it implied, but you're right, it does take it to the next level. So this woman in British Columbia, Karin Jackson is her name; she was caught eating with chopsticks in her right hand and a bowl of some sort in her left hand, and shovelling the food in her mouth while she was driving on the highway. So, probably not something that would be highly recommended.

02:21 MS: Wait wait wait, so bowl in the left hand, chop sticks in the right hand. Arguably at this point, you could say she's not driving.

02:30 HC: That's right.

02:31 MS: But this was a no-hands-on-the-wheel scenario.

02:34 HC: Well, so her evidence was that she had three fingers on the wheel, but that evidence was rejected by the judge. The judge actually believed the police officer who stated that when he saw her, she had no hands on the wheel. She was essentially... Had both hands occupied with other objects, and so that was the evidence that the judge actually accepted.

02:53 MS: Okay, so she's driving, bowl and chopsticks, and what happens as a police officer basically pulls up beside her?

02:58 HC: Yeah, so basically the officer reports her to the patrol car and they stop her and she gets a ticket. She was speeding as well, but her speed was not huge I think she was 10 kilometers over the limit, but the issue is she was driving without due care and attention. So that's the charge. So then, of course, she contests this and it goes to court. So what I find interesting about the case is what happens next in terms of how the judge determines this.

03:26 MS: Right.

03:27 HC: So, the first thing the judge will do, of course, is look to the law that applies, and in this case we have the BC Motor Vehicle Act, and the section basically says, "No one will drive without due care and attention." So, there's our rule, there's our legal rule that we have to apply. But of course, you can see the problem with this. What does that mean? It's very vague; one person's due care and attention might be another's distraction.

03:52 MS: Right.

03:53 HC: So the judge really has to sort of parse that out and explain what it is.

03:58 MS: I mean, right there is clear. There's sort of some notionally clear parameters there. I can't be asleep.

04:04 HC: Right, of course.

04:05 MS: I've got to have my face more or less forward. But yeah, what is due care and attention?

04:09 HC: That's right. So there's a few things that we know already, so we know that it's an objective standard. That means it's not about whether the person thought they had sufficient care and attention, it's whether objectively the reasonable person would think that they were driving with due care and attention. So we know that and we know that, again, there are those basic parameters as you were saying, that you can't be drunk or you can't... There's those things. But beyond that, we need to look at what else might this imply. And the normal process, of course, would be to look at other cases. So, under normal circumstances you would say, "Well, what have cases that have come before said about this issue." But the particular problem in this case is that while there have been many cases of cell phone use, for example, and other things... At least as far as British Columbia was concerned and that's what the judge mentioned in the case, there hadn't been a case of eating food while driving; that just wasn't a scenario that had come up before. The closest equivalent was a situation where a man was driving with his dog in the car, and the dog actually went on their lap and caused them to be distracted and caused an accident. So that was sort of the closest equivalent they could find to this sort of scenario.

05:18 MS: And the equivalents are important because this is... We are in a precedent-based system.

05:23 HC: That's right, yeah. So the common law system, which is what we have in the common law provinces in Canada basically means that decisions get made on the base of precedent, so basis of decisions that have come before that judges are either in some cases, bound by if they come from a higher court or at least have to follow in some way. And so, the usual process would be you would look at similar cases and say, "Well where does this fall on the spectrum of those cases? So, the challenge here being there are no cases that really have this, are directly related to this situation. So it's a bit of a novel situation.

05:56 MS: Right.

05:56 HC: So what does the judge do in those situations? And I think what the judge did actually really exemplifies how the common law evolves, how our law evolves in the day-to-day application. So what the judge did really was two things that I think are significant. He sort of extended the law logically, but incrementally as well. So he created a logical extension to what we already knew from the case law, but he was sure to limit it, so that it wasn't a huge change in the rule. It's a slight change that sort of modifies what we know already. So the judge decided that the rule would be that you have to have one hand on the wheel at all times, and that if you don't then that will constitute driving without due care and attention.

06:41 HC: But what's interesting about it is if you sort of unpack... And the judge doesn't really go through this whole reasoning process, but if you kind of unpack where that might come from you can kind of see how it's an incremental extension of the law because we know for example, that cell phones, particularly hand-held devices are not... Are considered to be enough of a distraction to meet that standard. So if you're using a cell phone that's not a hands-free device you're normally found to have been driving without due care and attention.

07:10 HC: And if you think about that part of the reason for that is because, of course, the cellphones is distraction, so it's a mental distraction, but it's also because it's a manual distraction, so your hand has to be on the device or handling the device, and so it's unavailable to sort of help steer the steering wheel, so to help guide the car. Now, I think most people would agree, and again this is where it sort of the logical extension part comes in. I think most people would agree it would be a bit extreme to require people to have both hands on the wheel at all times.

07:41 MS: Right.

07:41 HC: And so again, I'm not inside the judge's head, but you might think that the judge would think, "Well, that can't be the rule because that would seem a little too extreme."

07:51 MS: So is there kind of... Like you said, "We're not in the judge's head," but is there sort of a historical component to that? People have been changing... They've been retuning their radio for decades, so there's a very long history of people driving with one hand on the wheel. Watch movies and TV people kind of famously drive with... It's cool to drive with one hand on the wheel.

08:12 HC: Yeah, absolutely, and that plays into it as well. So societal norms and expectations also come into play here, and while we have changed our views around such things as drinking and driving for example, and also to a large extent, I think we're more conscious of the idea of inattention behind the wheel and what that can 'cause, also, because there's more traffic. At the same time you're absolutely right, that I think part of this is you can't have a rule that is so completely out of sync with societal norms. If you were to say, "Well, a driver has to have both hands on the wheel at all times in order to be driving with due care in attention," I think that would be too extreme, and it would be out of sync with precisely what you were saying, that that social norm that this is in some cases is not an issue.

08:56 MS: And it would become, practically speaking, unenforceable.

09:00 HC: Well, absolutely, and...

09:02 MS: You'd need armies of police.

09:03 HC: Exactly. So, that's another concern of course. And you're absolutely right, the enforcement of the rule has to be something that is possible; otherwise the rule isn't really serving useful purpose.

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09:16 MS: Hey, it's Matt. A quick note that this is airing in late September, 2019. So you have about five weeks to enrol in our certificate in law program for a January, 2020 start. We're offering Introduction to Canadian Law, Workplace Law, Public and Constitutional law, and Intellectual Property that semester. If you're interested in this interview so far, Introduction to Canadian Law provides an overview and Public and Constitutional Law is the real deep dive on these subjects. If you start in January and take just one online course a semester you could earn your certificate in law from Queen's law, one of the best recognized law schools in Canada, by the summer of 2021. It's not too shabby. You can find out more about the program that takelaw.ca or drop us a line at lawcertificate@Queensu.ca. Back to Hugo.

10:09 HC: So based on that, then the judge decided that the rule should be that you have to have one hand on the wheel at all times and that hand cannot also be holding another object. So he also dealt with the issue that Ms. Jackson was saying, "Well basically I had three fingers on the wheel, but even though I was still holding the bowl," That wouldn't qualify either because that hand that is on the wheel has to not be also preoccupied with another object. But what was interesting about it, the judge was also very clear to limit the impact of this to saying that he was not saying that anyone who drives while eating will be found to have been driving without due care and attention.

10:48 MS: Right. I got a granola bar. I can still manage myself according exactly.

10:53 HC: Right. Exactly. So again, the test still remains in all the circumstances, "Did you drive with due care and attention?" But now we have a case that actually establishes some sort of standard for that in the case of eating at behind the wheel. So it actually allows you to guide your behavior. If you know that if you are holding an object with you one hand that's on the wheel and have an object in your other hand and you only have a finger on the wheel, that is going to probably cross the line into driving without due care and attention. Now, nothing's ever 100% certain in law because it always depends on those circumstances, but what's interesting about that is that we now have a rule that has become the new precedent. And so if this issue comes up to courts again, they will look to that case to say, "Well, this is what the judge decided in British Colombia and this makes... " They will either decide to adopt that as the rule that this makes sense or the lawyers in the case will have to find some way of distinguishing it from the new situation, but it's a really interesting way of showing how those rules get evolved in the case law.

12:00 HC: Even in situations where you don't have relevant precedent. And again, I think what's important to stress is that it has to be a logical extension, so it's not something that is completely different from what came before, in terms of the logical connection to the actual rule that is driving with due care and attention, but it's also incremental, in that it's limited and it's deliberately limited by the judge to a small subset of new situations; not suggesting that all eating behind the wheel for example, will be caught by this rule.

12:37 MS: And you mentioned something just about a minute ago, that I think is important as you sort of mentioned that this is a case that may set a precedent outside of BC. This is not locked inside British Columbia's borders. This is a precedent that can serve in common law jurisdictions period.

12:53 HC: Absolutely, and so because of the fact that this issue is unlikely to have been brought up many times before, it's sort of not something that you see very often brought to court. It absolutely, certainly in Canada, a decision from another province will be very persuasive, but also in other jurisdictions like the United States this maybe looked at as a precedent for decisions, largely because the common law system is largely the same in those jurisdictions, but also for this particular situation, motor vehicle statutes are also likely to be very similar. And so, the Ontario Highway Traffic Act for example, would have a similar provision. And so the interpretation of that provision would fall along the same lines. And so, yeah, it really is, it's a case that could start a whole other line of precedents and provide guidance for other courts, but also for how people in their day-to-day lives actually make decisions.

13:48 MS: So I wanna go off on a bit of a tangent and then back to the one hand on the wheel thing, but on a bit of a tangent is what makes this unusual what the person behind the wheel was doing, or was what makes this unusual the fact that she actually contested it? 'Cause I feel like as someone who has spent a fair bit of time in the highway people doing goofy stuff in cars is not... It's rare enough that we're not all dead, but it's not that rare.

14:14 HC: No, and I have to say I've seen my share of things people putting their makeup on and other kinds of things like that. So you would think that this kind of thing would not necessarily raise too much scrutiny, but I think what's happened is... And what's interesting about the case too is that only a few, I think it was a few weeks or months before, the RCMP had actually tweeted out a picture of someone driving with no hands on the wheel and suggested that that might result in a ticket.

14:43 MS: Right.

14:43 HC: They had anticipated this sort of thing, but I think it's probably due to the higher scrutiny being paid to other forms of distraction, like electronic devices that we're all of a sudden discovering there are other things going on behind the wheel that might be causing the same level of risk. I think it's unusual or at least it's novel in that sense that it was brought up. I also think you're absolutely right, though, that... And one of the last comments from the judge in the case was that he wasn't prepared to reduce the fine here because of the egregious circumstances. This seems to be, I think, to most people who drive, this seems to be an extreme example, particularly on a highway of taking this a little too far. And so I'm surprised in a way that this was contested, and that's important to understand as well for the legal process because the only time a decision really gets made on a case for example or in a situation like this is when it's contested. The police might have issued a number of tickets for that reason before, but if the person who received the ticket simply paid it and didn't contest it, then there would be no cases to decide what the rule actually is. We only have what the police decide is their policy. So in a way, it's sort of interesting that this was actually contested and that, now we have a legal rule based on case law in this situation.

16:07 MS: So the sort of thing that might even radiate to police in the performance of their duties, that they might be on the road and be like, "Oh, not one hand on the wheel. I've got to do something." 'Cause now they know that there is sort of a standard that's been set at the judicial level.

16:22 HC: Absolutely. So, it seems to have been the unofficial policy anyway because one of the officers in the case actually admitted in cross examination that if she had had one hand on the wheel, he would have let her go. In other words, he wouldn't have signalled her to the patrol and had her pulled over. So that seems to have been their unofficial policy, but now it's reinforced by the fact that they know this is a legally enforceable rule. So of course it's gonna give them more confidence in terms of being able to pull people over and say, "Yes, we can give you a ticket for this because it's recognized that this is a... This is against the law now."

16:56 MS: So we start with a statute that's pretty vague. You have to drive with due care and attention, and that's a lot of space to play in there. And this case comes up and the judge is like, "Okay what defines this as not due care and attention." Well, it can't be eating, 'cause anyone who has a cup of coffee in the car can't suddenly be driving dangerously, that's not societally acceptable. So let's make a rule, let's say it's one hand on the wheel, that seems like a pretty solid base to stand on. But can this have unintended consequences? Like in some... I play board games, there's a type of person that plays board games, we call the rules lawyer, which doesn't necessarily reflect well on lawyers. But will they be rule lawyers out there that now say, "Oh, if I have one hand on the wheel, anything goes."

17:40 HC: It's certainly a risk. I think the important thing to remember is that the rule defines one type of behavior that might be caught, but it doesn't assume that anything else won't be. So because we still have that standard, ultimately, the ultimate standard is would a reasonable person view this as driving with reasonable... Or with due care and attention. And so that's always gonna be there in the background. So, what's clear is that if you don't have at least one hand on the wheel, you're likely it's gonna be a tough argument to make that you were driving with due care and attention. But what's less clear is that even if you have a hand on the wheel that you couldn't still, for other reasons, not be driving with due care and attention. To give the most obvious example, if you have your cell phone in your other hand we know that if you're texting with your one hand while you still have one hand on the wheel that's not going to make it okay, just because you have one hand on the wheel. So there's still that room for other kinds of behavior and activities to be caught, but at least we have some sort of standard that we know you can't fall below; you have to have one hand on the wheel at all times.

18:47 MS: On sort of a side note, reading about the case, one of the things I thought was kind of fun was at one point the defendant said that she wasn't really speeding 'cause she was only going about 10 kilometers an hour over the speed limit. And the judge is like, "No, that's speeding. You were literally speeding." So there's no fuzzy, grey... And again, this is something... As someone who drives, you're kind of like, "yeah, there's a grey zone," but I think people over time may lose the ability to distinguish what offenses a police officer made deem it worth their time to pull you over for and what's actually against the law.

19:23 HC: That's the thing, and it's actually an interesting reflection of what we consider to be the rule of law because those unofficial policies of when things get enforced actually can crystallize and almost become the law because in effect, we all know that if you drive 110 kilometers on the 401, your chances of being pulled over are minimal because other people are going much faster and it's sort of an accepted thing that the 10-kilometer above rule applies. But again, it's important to note and to remember that technically one kilometer over the speed limit is breaking the law; the law says the limit is 100 kilometers per hour. And what's interesting about that is this plays in a lot to people's perceptions of raising speed limits because you always have the two competing arguments with one side saying, "Well if we raise the speed limit, people are gonna drive even faster." Where other people will say, "Well no, if you raise the speed limits we're just going to get actually cover the actual speed that people drive." And so you always have those two competing view points and it's based on this idea that what is the threshold at which we actually feel the real limit is. But you're absolutely right that that's an enforcement issue and not a question of what the law says.

20:35 HC: And it's important because it sort of reminds us of how important those kinds of policies and rules about when you enforce a law actually matter in the application of a law. So you can have a law that says something, but if it's being only enforced in certain circumstances, then that becomes the norm, essentially, that the law carries.

20:54 MS: I guess what's really resonating for me through this conversation is the interconnectedness that law is a societal phenomenon. This judge is making decisions based on what society does and what society will bear, and society is kind of making decisions about what's kind of acceptable even though it's technically outside the law.

21:14 HC: Yeah, and then there might well be legislation being passed on this kind of topi, and I think again, what distinguishes judicial reasoning from other ways of dealing with this issue is that it's never starting from nothing in a way. Judges and how they make law, they make law incrementally, only in small steps, extensions of what's there already. Whereas a legislature could decide to rewrite, completely all the rules on driving, make-up completely different rules, and that's the prerogative of the elected legislature. But you're absolutely right that the judge isn't divorced from societal ideas of what's acceptable and what's not, and that's also where the law has to track those fairly closely in order to be of value really.

22:13 MS: And now we get to watch. We get to watch and see. Do people start citing this case?

22:19 HC: Exactly.

22:19 MS: Does it reverberate? Does it reverberate outside BC? Does it reverberate even outside Canada?

22:23 HC: Yeah, it's an interesting process because it is the start of a new legal rule that's now been put out there that may get extended, it may get cut back, it may be changed, it may be rejected completely by higher courts or other courts. There's really no saying where it's gonna go, but it's interesting in that it really is the common law in action; we're seeing it happen before our eyes with this case, how it evolves and how it changes over time.

22:50 MS: Right. Well, thank you very much, Hugo.

22:52 HC: Oh, thank you, Matt.

22:53 MS: Drive safe.

22:54 HC: You too.

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22:58 MS: Thanks to Hugo Choquette. If you're curious about judicial power and the evolution of the law, Hugo delivers the basics as part of Law 201701, Introduction to Canadian Law. You can also take the deep dive with Law 205705, Public and Constitutional law, which gives you a full course on division of powers, citizens rights, and how our judiciary functions taught by Jonathan Shanks. You can learn more about these courses at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory...

23:35 MS: Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valérie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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