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News and Views — Police Powers Newsletter

By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

Complete Prohibition on Cell Phones in the Hands of Drivers

Facts: A police officer observed a driver who was stopped at a traffic light with a cell phone in her hand. The driver claimed that she had not, nor did she intend to, use the cell phone while driving. She had simply picked the phone up off the floor while stopped at the light. The driver was nevertheless charged and convicted pursuant to s. 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 as amended by S.O. 2009, c.4, s.2 ["HTA"], which prohibits driving a motor vehicle "while holding or using a hand-held wireless communication device". The Justice of the Peace found the driver's admission that she was physically holding the device was sufficient to ground the conviction; the purpose for which the device was held or whether it was being "used" need not be proven.

The driver succeeded in appealing the conviction, the judge at the Ontario Court of Justice accepting that some sustained physical holding of the device was required in order to constitute "holding" within the meaning of s. 78.1(1) of the HTA. According to the Judge, a complete ban on touching hand-held devices, for example to pass a phone to a passenger or move it within the car, did not accord with the intent of the legislation.

Held: Appeal allowed and conviction restored. Holding the device, even momentarily, was a violation of s. 78.1(1) of the HTA and it was open to the officer who observed this behaviour to lay the charge.

Justice Goudge effectively upheld a complete prohibition on drivers having cell phones in their hands while driving. Given the ordinary meaning of "holding" and the purpose of protecting those who use the road, momentary handling of a device is sufficient to establish the "holding" requirement. There is no need for sustained physical contact with the device in order to meet that requirement.

Commentary: This case provides guidance as to what constitutes "holding" for the purposes of s. 78.1(1) of the HTA, which is a relatively new provision. This finding - that momentarily having a phone in one's hand constitutes "holding" - means that officers need not witness or even suspect actual use of a device while driving in order to substantiate a charge under this provision. In fact, the Court of Appeal noted the challenge to enforcement that would result from an interpretation of the provision requiring "sustained physical holding". Such an interpretation would have led to uncertainty as to the amount of time required to meet the threshold of "holding", and also create the added challenge of requiring officers to engage in continued observation to enforce the rule. Thus, the provision was interpreted to mean that merely having a cell phone in one's hand while driving is a violation of s. 78.1(1) of the HTA, making enforcement more practical.

 R. v. Kazemi, 2013 CarswellOnt 13276 (Ont. C.A.) 

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