BenchPress - Vol 40-2 - LawNow Magazine

BenchPress – Vol 40-2

Bench PressTalking to Siri

The Nova Scotia Supreme Court has upheld a ruling by a provincial court judge about the definition of “using” a cellphone. Dr. Ajirogho Ikede is a medical officer in the Canadian Forces. A policeman observed him driving his car while holding his cellphone in his hand. He was charged under the Nova Scotia distracted driving law with using a cellphone while driving. Dr. Ikeda pled not guilty, explaining that he was asking Siri for directions on his cellphone using a voice-activated navigation system. He argued that he was not using his phone in the traditional sense of sending or receiving a phone call, sending or listening to a voice mail or communicating with anyone. He asked the phone for directions and then put it down and just listened. The Crown argued that use is use: applying the device for some purpose. The Court noted that there is no definition of “use” in the Motor Vehicle Act which is a bit unusual. Other provinces do offer a definition. Justice Campbell wrote: “Use” is not just “use”. It rarely, if ever, is.” He stated that “use does not encompass all interactions with hand-held devices that have cellular telephone functionality.” He concluded that when a driver, without looking at the screen of the device, engages 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. Dr. Ikede was acquitted.
R v Ikede, 2015 NSSC 264 (CanLII)

 

Till Death Do Us Part?

A Supreme Court of British Columbia judge recently had to sift through the details of a relationship to determine the factors that would define a spouse. Penny Neufeld said that she had been in a marriage-like relationship with Norman Dafoe for eleven years. However, he did not make any arrangements for her in his will, and so, after his death, she brought an action under the Wills Variation Act for a share of his estate. His children argued that she was just someone he had taken in when she was in tough circumstances and that their relationship was not intimate. Her children took a different view: testifying to a warm and loving bond. Ms Neufeld maintained that she and the deceased had an exclusive relationship that was at least occasionally sexual. The trial judge assessed the evidence in this case and referred to a 1980 Ontario case that set out indicators of co-habitation, such as:

  • shelter (living under one roof, sleeping arrangements);
  • sexual and personal behaviour ( sexual relations, fidelity);
  • services ( preparing meals, laundry, shopping);
  • social activities (participating in community activities, relating to family);
  • societal attitudes and conduct; (were they perceived as a couple?)
  • support (financial arrangements, buying property); and
  • children (attitude and conduct toward children).

Based on the evidence and all of these indicators, the trial judge had no difficulty concluding that Penny Neufeld was a spouse. He awarded her the sum of $60,000 out of an estate of approximately $160,000.

Neufeld v Dafoe, 2015 BCSC 1898

Authors:

Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the Acting Editor and Legal Writer for LawNow Magazine at the Centre for Public Legal Education Alberta. www.cplea.ca
 


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