When Is It Legal to Use a Cell Phone While Driving?
A Cell Phone May Be Touched While Driving If the Device Is Properly Mounted and If the Device Is Being Used Solely For the Purpose of Making or Taking a Phone Call.
Understanding the Cell Phone Touch While Driving Exception Including Use Limitations and Mounting Requirements
When a driver of an automobile holds or touches a cell phone, or other electronic device, the driver may be charged, and likely found guilty, for the offence commonly referred to as distracted driving; however, if the driver proves that the cell phone was touched only to make a call or take a call, then the charge should be dismissed.
The Highway Traffic Act, R.S.O. 1990, c. H.8, prescribes the unlawfulness involving a driver who holds or touches a cellphone, among other things, while driving; however, the Display Screens and Hand Held Devices, O. Reg. 366/09, regulation to the Highway Traffic Act provides an exception allowing for the touching of a properly mounted cellphone if exclusively for making or taking of a call. Specifically, the Highway Traffic Act and the Display Screens and Hand Held Devices regulation state:
Hand-held devices prohibited
Wireless communication devices
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.
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.
Hands-free mode allowed
(a) the driver of an ambulance, fire department vehicle or police department vehicle;
(b) any other prescribed person or class of persons;
(c) a person holding or using a device prescribed for the purpose of this subsection; or
(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.
1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.
(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable,
(a) for a first offence, to a fine of not less than $500 and not more than $1,000;
(b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and
(c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000.
(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence,
(a) for a first offence, for three days;
(b) for a first subsequent offence, for seven days; and
(c) for a second subsequent or an additional subsequent offence, for 30 days.
(6.3) An offence under this section committed more than five years after a previous conviction for an offence under this section is not a subsequent offence for the purposes of subsection (6.1) or (6.2).
(7) The Minister may make regulations,
(b) prescribing persons, classes of persons, devices, activities, conditions and circumstances for the purpose of subsection (4).
(8) In this section,
“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.
Exemption for pressing buttons
14. (1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position.
As per the case of R. v. Singh, 2016 ONCJ 618, while the prosecution has the burden of proof to show that the accused person committed an offence beyond a reasonable doubt, the accused person seeking to prove an applicable exception has the lower burden of proof known as balance of probabilities. Specifically, the Singh case states:
The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
18. In R. v. Goleski, the Supreme Court of Canada recently interpreted a Criminal Code section that is virtually identical to section 47(3) of the POA. The Court held that the accused bears a persuasive burden to prove such an exception – that is, on a balance of probabilities.
The touching of an electronic communication device, such as a cellphone, while operating an automobile is prohibited by the Highway Traffic Act; however, an exception applies when merely touching a properly mounted cellphone for the sole purpose of placing a call or receiving a call.