Legal Brief for December, 2011

Is Santa a Distracted Driver?

Earlier this year the Province of Alberta brought in a new law restricting the ability of drivers of vehicles to use cell phones and other electronic devices while driving - otherwise known as the "distracted driving" law.  This new law prohibits the use of hand held cell phones while a person is driving their vehicle.  As we are approaching the time of year when Santa will be passing through Alberta as he makes his rounds on Christmas Eve, it may be helpful for us to consider whether the jolly fellow in red needs to be cognizant of this new law.  After all, we wouldn't want to see a member of Alberta's finest have to pull Santa over and detain him in custody.

The new law, formally known as The Traffic Safety (Distracted Driving) Amendment Act, provides that "no individual shall drive or operate a vehicle on a highway while at the same time holding, viewing or manipulating a cellular telephone".  This provision raises three legal issues:

1. is Santa "driving" or "operating" when he is using his sleigh?
2. does his sleigh constitute a "vehicle"?
3. is Santa on a "highway" when he is flying around from house to house?

Since every statute has its own internal dictionary of defined meanings for words and phrases used in that law, we will need to look at the definitions of these terms in the Traffic Safety Act in order to properly assess Santa's position.

The Act defines a "driver" as "a person who is driving or is in actual physical control of a vehicle".  Santa certainly qualifies as "a person".  He is normally alone in the sleigh, and it is not being remotely controlled by some hidden force, so it is also clear that he must therefore be in the act of driving or having physical control of the sleigh.

This leads us to the 2nd issue - does the sleigh constitute a "vehicle"? The Act defines a "vehicle" as "a device in, on or by which a person or thing may be transported or drawn on a highway".  The sleigh certainly transports both a person (Santa) and things (gifts), so it clearly qualifies as "a device".  That leaves however the question of whether it is a device that is "on a highway".

The Act defines "highway" as "any thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trestleway or other place or any part of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles".  Santa is generally known just to fly with his sleigh through the air, and then lands only on the roofs of private residences.  As the roof of a house is not a surface that the public is "ordinarily entitled or permitted to use", it would appear that Santa's landing places do not constitute a "highway".  What about the airspace that he occupies while flying from house to house?  All of the examples listed in the definition are examples of physical surfaces.  Since airspace does not have a "physical surface", it would appear that the law is not intended to apply to someone using airspace as the medium along which they are travelling.

It is therefore this writer's opinion that Santa is exempt from the application of the distracted driving law.  Santa - you can still call and text away to your heart's content while you pass through Alberta!