A recent Ontario Court of Justice decision has declared that briefly handling your cellphone while behind the wheel should not get you a ticket under Ontario’s Highway Traffic Act distracted driving provisions.
A bit of background…
On October 26, 2009, amendments to the Highway Traffic Act (HTA) came into force prohibiting drivers from holding or using hand-held wireless communication devices, such as cellphones, while driving a motor vehicle in the province of Ontario. The law permits drivers to continue to use such devices in “hands-free” mode. In addition, drivers are entitled to use hand-held devices to contact police, fire or other emergency services or where the vehicle is off the road, not in motion and not impeding traffic.
So what happened…
On April 26, 2010, Khojasteh Kazemi was given a ticket under ss. 78.1(1) of the HTA for holding an opened flip cellphone in her hand while stopped in her car at a red light.
She alleges that the cellphone which was on the car seat, dropped to the floor. When the car was stopped at the red light she was just retrieving it, not using it to make a call.
The police officer did not believe her, did not check if the phone was in use, and issued the ticket. Kazemi contested the ticket.
At trial, Kazemi’s lawyer argued that the prosecution had to prove that Kazemi was in fact using the device while it was in her hand when the police officer came upon her.
The Crown argued any touching of a cellphone is prohibited, even if unrelated to its function.
The justice of the peace stated that it was enough that Kazemi was holding the cellphone, and further stated, “This sufficed for the purpose of the subsection. Whether it was in use or not was irrelevant given the wording of the section.”
The justice of the peace also rejected the defense attorney’s argument that ss. 78.1(1) requires proof that the device was in operation. The justice of the peace found that:
…so long as the phone was capable of operating, the offence was made out. The reason the legislature introduced the subsection was to combat the mishaps and accidents caused by people using such a device. The officer testified that the device was a brand name cellphone and that it was flipped open. The justice of the peace accepted this evidence and held that this element of the offence was made out.
Kazemi was convicted and fined $200, and appealed.
On appeal, the Court of Justice had to deal with the interpretation of “holding” a hand-held wireless communication device under section 78.1 of the Act:
78.1(1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
After analysis, the Court found:
…the “holding” of such devices is prohibited by the subsection since the holding in addition to the use of such devices creates a potential danger on the road. Using such a device may require the device to be operable. However, it is not necessary for the device to be operable for a person to be liable for holding the device. The distraction and interference with driving occurs whether the device is operable at the time or not. For example, a cellphone whose battery is so low as to be unable to transmit or receive calls, will still pose a distraction to a driver who, unaware of this, decides to hold or attempt to use it.
However, “holding” must mean more than simply having or carrying a device.
Consequently, the judge reasoned:
…to be “holding” a hand-held wireless communication device requires more than merely touching or a brief handling of such a device. This interpretation is consistent with the common meaning of the term “holding” and the objective of the legislation. Given the objective is to promote road safety by banning resort to and the use of such devices while operating a motor vehicle, it is not necessary to prohibit a driver from merely touching a cellphone, for example, just to hand it to a passenger or to move it within the car. The short mental distraction and physical interference with the ability to drive caused by such acts are not intended to be caught by the provision. There must be some sustained physical holding of the device in order to meet the definition found within ss. 78.1(1).
The judge found the conviction unreasonable and acquitted Kazemi of the charge.
Surely many Ontario drivers will feel relief from this ruling, which not only clarifies the prohibition on cellphone use while driving in the HTA, but also provides a potential defence in the event one is caught with cellphone in hand.
Not that I recommend drivers lie to police officers or that they drive while using a cellphone or similar device. It is clear that using such devices while driving is distracting and I would say inherently dangerous. Driving while distracted won’t always lead directly to dangerous behaviour, but it vastly increases the risks. I imagine most drivers (and passengers) have noticed another driver acting dangerously while talking on a phone.
It is not a question of whether other legal activities are not also distracting. A good driver will always remain focused on driving, not on eating or reading or putting on makeup. And whether explicitly prohibited or not, all of these activities are potentially dangerous and should be treated as such by police. (That is, they should result in penalties.)
The prohibition on cellphone use while driving will always be hard to enforce, but this ruling will make the law fairer. I’d say the purpose of the law is not actually to prevent drivers from talking on their hand-held phones while driving, but rather to provide a framework to penalize them when they are caught or when cellphone use is involved in a collision.
The only way to change the behaviour is to make drivers understand the potential for danger that they cause when they drive while distracted. Public education campaigns will help, as will public censure. That is, when it becomes “uncool” to drive while talking on a hand-held phone, fewer people will do it. Another way is to make it mandatory for driving instructors to discuss the dangers of distracted driving with their students.
Since it is impossible for police to have their eyes on drivers at all times, it is crucial that drivers, passengers and others “self-police” by discouraging all forms of distracted driving.
Unfortunately, in the mean time, it is likely that many guilty drivers who are caught red-handed will attempt to use the “I just dropped my phone defence,” and some will succeed. But the ruling will also allow innocent drivers to defend themselves legitimately, rather than forcing them to pay a fine for an offence they did not commit.