As of October 26, 2009, Ontario's new "distracted driving" law will make it illegal for motorists to use hand-held wireless communication devices, or any hand-held electronic entertainment devices, while driving. The new law can be found in amendments to the Highway Traffic Act (Act) and a new Regulation under that Act. The prohibition includes hand-held cell phones, texting and e-mailing, although hands-free devices will still be permitted. This new law also prohibits viewing a display screen unrelated to the driving task, such as laptops or DVD players, while driving.
The change in law will be of interest to all persons who drive a motor vehicle in Ontario, including businesses that engage in commercial trucking in Ontario or that have employees who drive personal, company or rental vehicles on behalf of the business while in Ontario. Following a three-month period that began October 26, 2009 and focuses on educating drivers, police will start issuing tickets on February 1, 2010.
Exemption for Hands-Free Devices
The new law applies only to hand-held wireless communications and hand-held electronic entertainment devices. This means that drivers must only use wireless devices that can be used in a "hands-free" manner such as:
- a cell phone with an earpiece or headset using voice dialling, or plugged into the vehicle's sound system;
- a global positioning system (GPS) device that is properly secured to the dashboard or another accessible place in the vehicle; or
- a portable audio player that has been plugged into the vehicle's sound system.
Some wireless devices require that users push a button to activate and/or deactivate the device's "hands-free" function. This activity is permitted under the law. However, dialling a phone number while driving is not permitted.
For wireless communication devices, the general prohibition and exemption in the amended statute provide as follows:
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
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.
Therefore, it would appear that the statutory exemption in subsection 78.1(3) permits the use of cell phones where they can be used 100% "hands-free" i.e. plugged into the vehicle's sound system and relying on voice-dialling.
Where the cell phone is not integrated with the vehicle's sound system and therefore cannot be operated 100% hands-free, section 14 of the Regulation provides two limited exemptions for when "a button" may be pressed on the cell phone, namely:
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.
(2) A person may drive a motor vehicle on a highway while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to 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 or a hand microphone or portable radio.
In summary, the amended statute and regulation, taken together, appear to provide three alternate ways in which a driver can use a cell phone or other communication device in an acceptable, "hands-free" manner:
(1) Plugged into the vehicle's sound system Under subsection 78.1(3) of the Act, the driver can use a device that is 100% "hands-free" i.e. plugged into the vehicle's sound system (no earpiece required and uses voice-dialling).
(2) Mounted hand-held device, no earpiece Under subsection 14(1) of the Regulation, the driver can push "a button" on the device to make, answer or end a call provided the device is mounted in a fixed holder in the vehicle where it can be easily seen and reached. Based on the wording of this subsection, no earpiece or headset appears to be required.
(3) Not mounted, with an earpiece Under subsection 14(2) of the Regulation, the driver can push "a button" on his/her earpiece or headset to make, answer or end a call. There is no need for the device to be mounted or fixed to the vehicle. (The cell phone can be in the driver's pocket or resting elsewhere in the vehicle. However, the driver cannot touch the cell phone to make, answer or end a call.)
Clarification From Ministry of Transportation
Osler requested clarification from the Ministry of Transportation (MTO) on whether the exemption provided by subsection 14(1) permits a driver to push a button on the mounted device twice – once to activate "voice-dialling" and a second time to activate the "speakerphone" (or alternatively, once to make a "speed dial" call and a second time to activate the "speakerphone"). Many cell phones require two buttons to be pushed in this manner to use either voice-dialling or speed-dialling without an earpiece/headset.
According to advice received from the MTO Legal Services Branch on October 26, 2009, pushing buttons on a mounted device "twice" to make, answer or end a call is not permitted. Therefore, subject to a court ruling to the contrary, the exemption afforded by subsection 14(1) of the Regulation may have limited value e.g. applying to situations in which a call is in progress before entering the vehicle and a button is pushed once to place the device on speakerphone before it is placed in the fixed holder. A button may also be pushed once to end the call.
Given MTO's advice, the most prudent course of action is to always use a cell phone that is plugged into the vehicle's sound system (100% hands-free) or, where the vehicle does not provide this option, to use an earpiece or headset that permits voice-dialling with the touch of one button.
Exceptions for Emergency Personnel and Commercial Drivers
Certain exemptions are provided for emergency response personnel and commercial drivers. Section 78.1(4)(a) of the amended Act expressly permits the driver of an ambulance, fire department vehicle or police department vehicle to drive while holding or using a hand-held wireless communication device. The exemption for commercial drivers is less liberal than the exemption provided for emergency response personnel and will only be valid until January 1, 2013. The three-year phase-out period of the exemption for commercial drivers is intended to allow businesses that employ commercial drivers to stay competitive while technology is developed to adapt to the legislation.
Section 12 of the Regulation details the exemption that allows drivers of commercial vehicles to continue to use two-way radios (including mobile radios and CB radios) while operating a vehicle. The exemption applies to all drivers of commercial vehicles, as defined by section 16(1) of the Act, provided the driver is not using the vehicle for a personal purpose without compensation. The exemption also applies to the following drivers engaged in the performance of their duties:
- Drivers of motor vehicles clearly identified as courier delivery vehicles.
- Drivers of tow trucks or roadside assistance service vehicles.
- Drivers of taxicabs and limousines licensed by a municipality or airport authority to provide passenger service.
- Drivers of street cars.
- Drivers of road-building machines.
However, the general ban on driving while holding or operating a hand-held wireless communication device will be applicable to commercial drivers.
There are several other limited exceptions which permit the use of wireless hand-held communication and entertainment devices while driving:
- Calling 9-1-1 in an emergency situation; or
- When the driver has safely pulled off the roadway and is stationary or lawfully parked.
The ban also does not cover the following:
- Viewing a display screen used for collision avoidance systems; or
- Viewing a display screen of an instrument, gauge or system that provides information to the driver about the status of systems in the motor vehicle.
Jack Coop is a partner in the Litigation Department in the firm's Toronto office. The focus of his practice is environmental litigation.
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