Ontario is one jurisdiction with legislation prohibiting people
from driving while using a cell phone. While the legislation
appears clear, some ambiguity may have developed concerning the
precise limits of the prohibition. That ambiguity has now been
resolved by the recent Ontario Court of Appeal case of Her
Majesty the Queen v. Kazemi.
In that case, the accused was driving home from work alone.
While stopped at a stop light, a policeman saw her with her cell
phone in her hand. The evidence before the Court was that the cell
phone had been on the seat but that it had dropped to the floor of
the car while she was driving. When she got to the red light, she
picked it up and that is when the policeman saw her.
The legislation prohibits people from driving “while
holding or using a hand-held wireless communication
device…”. The issue was whether or not the accused was
“holding” the cell phone for the purposes of this
At trial, the judge determined that her admission that she had
the cell phone in her hand was sufficient to merit a
She appealed to the Ontario Court of Justice. The appeal judge
dismissed the charge. He found that there would have to be some
sort of sustained physical holding of the phone in order to meet
this requirement and that the momentary handling that took place in
this case was not sufficient.
The Crown appealed to the Court of Appeal. The Court of Appeal
restored the conviction after considering the current law on
statutory interpretation and the Oxford dictionary definition of
“to hold”. The Court determined that the interpretation
of “holding” best ensuring the attainment of the
legislation’s objective, which is to protect people using
Ontario’s roads, simply involves having a grip on a phone
without any reference to the amount of time involved.
The Court also quoted the Minister of Transportation describing
the purpose of the legislation this way in a speech in
Our 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.
So there you have it. If you are driving and you are seen by a
policeman with a cell phone in your hand, regardless of the
circumstances or the length of time that you hold it, you are
guilty of an offence. This is because Parliament has determined
that drivers must focus on one thing and one thing only, namely
driving. Speaking for myself I will certainly keep this in mind the
next time I pass a drive-thru window at a quick service restaurant
and drive away, as the law allows me to do, with a sandwich in one
hand and a cup of coffee in the other.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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