Canada: The Second Opinion: Ontario Court Of Appeal Decisions On Distracted Driving Could Hurt Development Of Connected Cars

Last week was an exciting week for those who monitor developments in technology and the law. First, a Canadian telecom company announced it had struck a deal to introduce wireless internet service for Canadian cars. Then, the next day, the Ontario Court of Appeal released two companion decisions that added some oomph to Ontario's distracted driving laws – merely holding a mobile phone, said the court, is sufficient to put you offside the law. The phone doesn't have to be on and it doesn't even have to be near your ear: it just has to be a cell phone.

Distracted driving advocates and telecom executives no doubt cheered. Just as the court declared that drivers ought to keep their hands on the wheel, a telecom declared it had a business plan that could facilitate that very thing. Win-win.

Except that few people read the details of the court's decisions. Yes, both decisions censured hand-held cell phones by drivers. However, in parsing the legislation, and commenting generally on the distraction created by "other prescribed devices", the Ontario Court of Appeal may also have inadvertently censured the next generation of connected vehicles.

The Law

There were two decisions, both of which considered the distracted driving provision of the Highway Traffic Act, RSO 1990, c H.8 (emphasis added):

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.

The first decision, R. v. Kazemi, 2013 ONCA 585 was the one that got the most attention. In this case the driver, Ms. Kazemi, claimed that her mobile phone, which had been sitting on the passenger seat, had slid to the floor when she braked for a red light. While stopped at the red light, she bent over to pick it up, which is when she was observed by a police officer and charged.

The central issue in the case was the meaning of "holding". Did this include any type of handling of the phone, or was there a grace period – similar to the 5-second food-on-the-floor rule – where the law ought not to apply? The trial court took the former approach and convicted; on appeal to the Ontario Court of Justice, that court took the latter approach and reversed. On further appeal, the Court of Appeal restored the conviction, saying that the ordinary meaning of "holding" (i.e. any handling whatsoever) was the one that best ensured the protection of those who use the roads.

It was this decision that made headlines – mostly along the lines of "even holding a cell phone is illegal in Ontario".

More interesting is the companion case of R. v. Pizzurro, 2013 ONCA 584. Mr. Pizzurro was driving  his car and was observed by a police officer holding a cell phone and either typing or reading information on it. Mr. Pizzuro acknowledged the phone was in his hands, but said that was insufficient to convict, as he claimed the statute also required the Crown to show that the device was "capable of receiving or transmitting telephone communications, electronic data, mail or text messages". The trial court rejected this approach and convicted; on appeal, the Ontario Court of Justice reversed.

The Court of Appeal restored the conviction, saying that language of section 78.1(1) is disjunctive and actually applies to two kinds of devices: hand-held wireless communication devices (that is, cell phones) and other devices prescribed by regulation. Because of this, the Court of Appeal found that the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to "prescribed devices" but not to cell phones. Cell phones, said the court, are presumed to be doing that already.

This was good news for the police, who don't need to prove the phone was on, or in use, or receiving or transmitting.

This is potentially bad news for telecoms, automotive manufacturers and any other players in the connected car arena.

Implications for Business

The Court of Appeal was of the view that the creation of this other category of devices constituted the legislature's direction to the Minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. While no regulation currently lists any such devices, it is not hard to see that a connected car could easily fall in to this category. While we may currently think of a car as an "automobile", it is undergoing a transformation and could now, in and of itself, be considered a "device" under the legislation. In short, is it a car with smart phone features? Or is it a smart phone with automotive features?

Also interesting is the rationale used by the legislators and the Court of Appeal. Citing the reasons in the companion case, the Court of Appeal described the legislative purpose of section 78.1(1) "ensuring road safety and driver attentiveness to driving". In R. v. Kazemi, the Court of Appeal quotes the Minister of Transportation describing the purpose of the legislation this way (emphasis added):

[O]ur eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cellphones while driving.  The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads.  For safety's sake, drivers should focus on one thing and one thing only: driving.

While the cases primarily dealt with the physical interference of cell phones with driving, both implicitly acknowledged the companion evil of the distraction caused by the information on both cellphones and other connected devices. Further to this, the legislation not only prohibits the "holding" of devices, but the "using" of such devices. A driver using the services offered by a connected car capable of sending and transmitting messages is now potentially liable to be fined, if it is prescribed.

All is not lost: section 78.1(3) of that same statute says that a person may drive while using a device in "hands-free mode".  This might encompass a connected car...or it might not. It is hard to reconcile the legislature's intent that "drivers should focus on one thing and one thing only: driving" with an exemption that permits a driver to simultaneously stream videos, talk on the phone, adjust the thermostat in her home and order groceries long as her hands remain on the wheel. (However, section 130, which deals with careless driving, may well apply).

In addition, section 78(1) prohibits the operation of a motor vehicle on a highway if "the display screen of a television, computer or other device in the motor vehicle is visible to the driver". There are exceptions here, too – a television or computer screen visible to the driver is permitted, provided it is a display related to a GPS (being used only for navigation), vehicle status, collision avoidance or logistical tracking. But what about a digital display of the impact of a driver's habits on his or her insurance rates? Or a GPS unit that displays the most direct route home...but also offers alternative routes, perhaps one past the giant inventory clearance sale at an electronics store (complete with discount coupon sent to the drivers' vehicle or phone)?

Also exempt from this particular prohibition is "a hand-held wireless communication device or a device that is prescribed for the purpose of subsection 78.1(1)". This latter point would appear to let passengers use their cellphones within sight of the driver without attracting sanction. However, the Court of Appeal decisions state that a "hand-held wireless communication device" is a cell phone, full stop. What if the passenger is using, say, a tablet or a laptop computer to access the vehicle's new onboard WiFi?

Car manufacturers and communications providers should watch the development of the law in this area carefully as it has the potential to evolve in a way that could impact the development of the connected car. Should the legislature decide that connected cars fall into the category of other devices subject to regulation, specific platforms and services may well be prohibited or further restricted.

In addition, an increasingly sophisticated class action bar is sure to be watching these developments. Car manufacturer and communications providers will want to keep abreast of developments to ensure their business models and technology platforms are readily defensible.

Finally, those businesses intending to target their online ads to this new captive audience should be mindful of a recent US case (discussed in my previous post, here) which held that those who send texts to people behind the wheel may themselves be liable for damages caused by the driver they distracted.

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