Worried daughter's 911 call didn't justify driving ban, judge rules

One spring day last year, Marika Skye Winthrope was driving to work when she got an emergency message from home. Her developmentally disabled brother was trying to tell her that something was seriously wrong with their mother.

And so, according to court documents, Winthrope waited until she was stopped at a red light on Marine Drive in North Vancouver, and began dialling 911.

Unfortunately for Winthrope, an RCMP officer was watching as she picked up her phone, and immediately pulled her over for distracted driving.

Winthrope received a 90-day driving prohibition, later upheld on review by the Superintendent of Motor Vehicles.

But this week, a B.C. Supreme Court judge ordered the superintendent to end the ban, saying it was unreasonable.

"The adjudicator in this case .... had to consider not only Ms. Winthrope's driving record, but whether that record showed her to be a dangerous driver who might put the safety of the public at risk," Justice Nathan Smith wrote.

"Ms. Winthrope had two violations on her driving record. The circumstances of the most recent violation were relevant in that, on her unchallenged evidence, they indicated that the violation had occurred in an exceptional situation."

Mother had a mini-stroke

At the time of the 911 call, Winthrope was the primary caregiver for her 22-year-old brother, Jamie, who has a genetic condition called fragile X syndrome, according to the judge's decision. He can use a computer, but can't dial a telephone and needs 24-hour supervision.

Winthrope was also caring for her mother, Pamela, who has a number of medical conditions, including a history of strokes that has left her partially paralyzed.

On May 24, 2017, she got a call from an app called ManDown, which automatically alerts family members or friends in case of an emergency.

Winthrope would later discover that her mother had had a mini-stroke, a frightening experience that Pamela described in an affidavit filed with the superintendent.

"I felt my lower face and my mouth going completely numb, causing me to panic," she wrote. "My panic attack caused me to start shaking uncontrollably. Jamie noticed that I was in distress and he went directly to my phone to use the ManDown App."

Winthrope picked up the phone, but her brother wasn't able to articulate what the problem was, according to another affidavit.

She hung up the phone and waited for a red light to make a call for help. Because the police pulled her over, that call was not completed.

Bans 'almost never' overturned

Winthrope was officially banned from driving in October, "based on your unsatisfactory driving record," according to the superintendent. Winthrope has had a novice driver's licence since 2012, and told the court she hasn't applied for her full licence because of the cost. Her one previous violation was a speeding ticket in 2015.

The prohibition was temporarily stayed while Winthrope appealed.

The adjudicator who reviewed Winthrope's case wrote that her submission, "does not indicate that when you received the notification you were in a position that posed an immediate danger to your personal safety."

That was because Winthrope had waited until she was at a red light to make the call. "This indicates that you did not respond immediately," the adjudicator said.

But the judge wrote that the adjudicator had failed to consider whether Winthrope's actions suggested she posed a continuing risk to the public.

Distracted driving prohibitions are "almost never" overturned because of the connection between the offence and serious crashes on the roadway, according to Kyla Lee, a Vancouver lawyer who specializes in driving law.

She said Winthrope's case raises interesting questions about how the superintendent justifies prohibitions, as well as about the actions of police.

"It highlights some of the concerns about how broad the electronic device provisions of the Motor Vehicle Act are and how broadly they're being enforced at the roadside," Lee told CBC News.