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Digest of the Week — Is it a Hand Held Device if Not Held in the Hand?

R. v. Whalen |  (WestlawNext Canada)
2014 CarswellOnt 5880 | 
Ontario Court of Justice  

Motor vehicles | Offences and penalties | Offences | Driving offences | Use of handheld communication device while driving

Police officer observed accused operating her motor vehicle — Accused's head was tilted significantly to her right and there was cell phone between her right ear and shoulder — Accused was convicted of driving with hand-held communication device — Accused appealed — Appeal dismissed — Definition of "holding" was sufficiently broad as to conclude that accused was "holding" cell phone between her ear and shoulder — Accused was not using "hands-free" device, nor device in "hands-free mode" as contemplated by legislation — Accused's attention to driving was necessarily distracted in manner not authorized by statute — This was exactly type of distraction sought to be eliminated by legislation.
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