An Ontario appeal court has decided that any “holding” of a cell phone is illegal under Ontario’s relatively new cell phone driving law – even when the driver is not using the phone, and even when the phone is not operable.
A police officer observed a driver glancing down and back up while stopped in her vehicle at a traffic light. It appeared to the officer that the driver was punching numbers on her cell phone but he did not actually observe that. He knocked on the window and pulled her over. The driver testified in court that her cell phone had fallen from the seat to the floor, and she had picked it up when stopped at the light. She said that she did not use the cell phone or intend to use it; she claimed that she did not even know how to send text messages from the phone.
Section 78 of the Ontario Highway Traffic Act, Ontario’s relatively-new cell phone driving law, states:
“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.”
The appeal judge, Justice Nakatsuru of the Ontario Court of Justice, decided that any “holding” of the cell phone was illegal while driving, even if the person was not using the phone. However, the mere “touching” of the phone – for instance, to pass it to a passenger – was not “holding” . “There must be some sustained physical holding of the device in order to meet the definition found within” the section. A momentary handling is not enough.
In this case, because the trial justice had accepted the driver’s testimony that she had simply picked up the cell phone when it fell to the floor, the driver was found not guilty of the charge.
Lastly, the appeal judge decided that in order for a driver to be found guilty, the cell phone need not be operable. Even if the device was inoperable or turned off, any “holding” of the device is illegal. To decide otherwise would make it very difficult for the police to ever charge a driver under the section.
Employers should review their mobile devices policies in light of this decision. Given the decision, employers may consider taking a strict “no holding a cell phone while driving” approach.
R. v. Kazemi, 2012 ONCJ 383 (CanLII)
