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
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
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
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"
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