Illegal To Have Cell Phone In Hand, Even For Only A Moment, While Driving: Ontario Appeal Court


Drivers who have a cell phone in hand are committing an offence, even if not using the phone at the time, Ontario’s top court has decided, overturning an appeal judge.

While the driver, Kazemi, was stopped at a stop light, a police officer saw her with a cell phone in her hand. The driver said that the cell phone had fallen from the seat to the floor when she stopped, and that she had picked it up when she got to the red light.

The trial justice convicted her of the offence of “holding or using a hand-held wireless communication device” while driving, pursuant to section 78.1 of Ontario’s Highway Traffic Act.  The appeal judge, however, found her not-guilty.  In his opinion, there must be some sustained physical holding of the device in order to meet the “holding” requirement, so that momentary handling was not enough.  We previously wrote about the appeal decision on this blog.

The Ontario Court of Appeal disagreed, and stated that ”having it in one’s hand” is enough to be guilty of the offence of “holding” a cell phone.  According to the Court of Appeal, that interpretation best meets the objective of road safety and avoids the “enforcement challenge” of requiring a police officer to have “continued observation of the driver” for a period of time in order to write a ticket.

The Ontario Court of Appeal’s decision makes it much more difficult for drivers to beat charges under Ontario’s distracted driving law.  We had previously blogged about some of the creative arguments and alibis tried by drivers, including “it was a garage door opener”; one expects that those arguments and alibis will be unsuccessful in most cases, especially in light of the Court of Appeal’s decision.

As a result of this decision, employers may wish to ensure that their mobile device / distracted driving policy prohibits employees from having a cell phone in hand while driving.

R. v. Kazemi, 2013 ONCA 585

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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