The Ontario Court of Appeal has made it clear in a recent decision that it is illegal to hold a cellular phone while driving regardless of how long the driver is holding the phone. The facts of the case are fairly straight forward and involved a driver who was observed by a police officer holding a cellular phone while driving. The driver testified at trial that she was moving her cellular phone from the floor of her vehicle where it had fallen, to the passenger seat while at a stop light when she thought it was safe to move the phone.
Section 78.1(1) of the Highway Traffic Act explicitly prohibits “holding” a cellular phone while driving a motor vehicle on a public highway. The driver in this case argued that the prohibition on “holding” a cellular phone while driving did not apply in the circumstances of briefly moving the phone from the floor while stopped at a traffic light.
The driver’s argument was rejected at trial, but an appeal to the Ontario Court of Justice was allowed on the basis that the legislation required that there must be some sustained physical holding of the phone in order to meet the “holding” requirement, and that the momentary handling which occurred in this case was insufficient to establish that requirement.
The Court of Appeal overturned the Ontario Court of Justice and pointed out that the dictionary definition of “to hold” was “to have a grip on” or “to support in or with the hands”. There is nothing in the dictionary definition that would support an interpretation of “holding” which would require an individual to be holding the phone for any particular period of time. The Court also found that a narrow interpretation of “holding” would frustrate the legislature’s intention of protecting the public from the dangers associated with distracted driving.
The Court’s decision in this case is not surprising. There is nothing in the legislation which suggests that there is any type of exemption from the prohibition on holding or using a cellular phone while driving. Further, as the Court pointed out, the enforcement efforts by police would have been greatly frustrated if drivers were able to escape punishment by arguing that they were only holding the phone for a brief period. It is likely that the ban on holding a cellular phone while driving was put into the legislation to prevent the very type of argument the driver was asserting in this case.
We recommend that employers enact clear policies which ban employees from holding or operating cellular phones while driving. These policies should make it clear that there is an absolute prohibition on holding a cellular phone while driving and from using one unless legal requirements for hands free devices are met. It would be a very good idea to revisit the issues with all employees who drive in light of the clear direction from the Court of Appeal. This case makes it very clear that it will be impossible to defend any ticket where it can be proven that the driver was holding or using a cellular phone.
