Don’t  even  hold  your cell  phone  in  your  hand  while driving

On April 26, 2010, Khojasteh Kazemi was driving home from work while alone in her car. After she was stopped at a stop light, a police officer observed her with her a cell phone in her hand.  She told the officer that the cell phone had been on the seat but had dropped to the floor of the car when she braked.  She picked it up when she stopped at the red light.  That was when she was observed by the officer. 

Kazemi was charged with driving while holding a hand-held wireless communication device pursuant to section 78.1(1) of the Highway Traffic Act of Ontario. The Act states:

“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.”

This raises an interesting question. Suppose you have the cell phone in your hand when it isn’t capable of receiving or transmitting a message. Would that be against the law?

Years ago when I was practicing law, I had a client who was charged under that particular law. His cell phone was on his car seat when it suddenly began to ring.  He picked it up to stop the ringing and then placed it back on the car seat. An officer saw him holding the cellphone momentarily while he was driving and charged him under the Act.

My client was able to prove in court that his cellphone wasn’t working and therefore was incapable of receiving of transmitting messages. My client said he merely picked it up to shut off the phone so that it wouldn’t keep ringing.

Section 64. (1) of the Legislation Act of Ontario states:    

                                           

“An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

I argued that a law must be interpreted in a manner in which an ordinary person would interpret it and the Act states that the device must be capable of receiving or transmitting messages and that in that particular case, at that precise moment, his cellphone didn’t have the capability to receive or transmit messages since it was broken.

The prosecutor argued that a message was in fact sent and received even though the voice couldn’t be heard if he placed it to his ear because the cell phone was broken. He said the fact that the cellphone was ringing was added proof that the cellphone was capable of receiving messages even when he wouldn’t be able to hear the voice message.                                                                                                                                                              

 

My client was convicted. Now back to Kazemi’s case.

The central issue at her trial was whether or not she was ‘holding’ the cell phone in her hand for the purposes of receiving or transmitting a message. Her lawyer argued that the law was ambiguous because that the ‘holding’ of the cell phone within the meaning of ss. 78.1(1) of the Highway Traffic Act should be interpreted in such a fashion that the holding of the cell phone must be for the purpose of sending or receiving wireless communication. Kazemi had testified that she merely wanted to put the phone back on her seat and not receive or transmit a message.

She was convicted nevertheless so she appealed that decision to the Ontario  Court of Justice. The appeal judge said in part;

“The prosecution need only prove that the device held or used by the driver was a ‘hand-held wireless communication device’.  There is no requirement that the prosecution is required to prove that the device was operable at the time. This interpretation is grammatically the correct one, and it is also consistent with the objective of the provision.”

However, the appeal judge allowed the appeal and dismissed the charge.  He determined that there must be some sustained physical holding of the device in order to meet the ‘holding’ requirement, and that the momentary handling in Kazemi’s case was insufficient to establish that requirement.   

That makes a lot of sense. For example, there is no law that says you can’t hold a cup of coffee in your hand while you are driving your vehicle so why can’t you hold your cell phone in your hand when you are merely picking it up to place it on the seat beside you?

The prosecution appealed and the matter ended up in the Ontario Court of Appeal.

The court said in part:

The ordinary meaning of ‘holding’ a cell phone is having it in one’s hand.  The New Shorter Oxford Dictionary, 1993 defines “to hold” as “to have a grip on” or “to support in or with the hands”.  There is no suggestion that only if one has the cell phone in one’s hand for a sustained period of time is one holding the cell phone.”

In other words, even if the driver has the phone in his hand for a mere second and has no intention of listening to a message or transmitting a message, he is in violation of that Act.

The court also said in part:

“Road safety is best ensured by a complete prohibition on having a cell phone in one’s hand at all while driving. A complete prohibition also best focuses a driver’s undivided attention on driving.  It eliminates any risk of the driver being distracted by [receiving or transmitting] the information on the cell phone.  It removes any temptation to use the cell phone while driving.  And it prevents any possibility of the cell phone physically interfering with the driver’s ability to drive.  In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cell phone in his or her hand while driving.”   

I have to agree with that observation of the court. Years ago, I represented a client who was driving home from work on a major highway running through Toronto. He had placed his pay cheque on the dash and when he opened his window to get some fresh air, the wind blew his cheque around the inside of his car and then it landed at his feet where it remained. He was afraid that another gust of wind would pick it up and suck it out the window so while still driving on the highway, he leaned down to pick up the cheque and as he rose to the proper sitting position; his car rear-ended the car ahead of his that had slowed down in the bumper to bumper traffic. I argued that momentary inattention in a careless driving charge was  sufficient grounds for an acquittal. The justice of the peace agreed.

In Kazemi’s case, she said that she picked up the cell phone and placed it on the seat beside her when she was stopped at the red light. That would mean that her car at that precise moment wasn’t moving and therefore it would be safe to pick up the phone at that precise moment.

Actually, it would not be safe to pick up her cell phone from the floor of her car while stopped at the red stop light. While she was stopped, her foot was pressing on the brake pedal and if she stooped over to pick up the cell phone from the floor, her foot could come off the brake pedal and if that occurred, her car would lurch forward and could strike a pedestrian crossing the street. That being as it is, she would still be in control of her car when the engine was running and therefore she would in fact still be driving her car even though it was temporarily stopped. I believe that the decision of the Court of Appeal was correct.

Ignoring the law that prohibits anyone holding a cell phone in his or her hand while the motor of the car is running is a danger to others on the road. Perhaps if she had shifted her gears into neutral or shut the motor off before she tried to retrieve her cell phone, she would not be driving her car since it would be incapable of moving forward. The smartest thing she could have done was to pull over to the side of the road, turn the motor off and then retrieve her cell phone. She chose not to do that. But believe me, if she was retrieving her cell-phone from the floor of her car while her foot was on the brake pedal and her foot slipped off the brake pedal and her car lurched forward and ran over a small child which resulted in the child ending up as a quadriplegic, she would have wished she had proceeded in a manner in which she could retrieve the cell phone in safety.

Quite frankly, I am not convinced that momentary inattention is really justifiable in a careless driving charge unless it was done in an emergency. For example, there was a woman driving with her young daughter in the front seat beside her. Her daughter was beginning to unseat her seat belt so the woman turned to her right to re-fasten the seat belt and when her eyes faced the front again, it was too late to stop her car from rear-ending the car in front of her that had suddenly slowed down. At her trial, the justice of the peace said that in an emergency, momentary inattention is a valid defence to the charge of careless driving.

It seems to me that any holding of a cell phone in a driver’s hand for a short period of time, despite the accompanying risks to road safety and driver attention, would be exempt from the prohibition.  But the Court of Appeal differed from that reasoning. The court said that such an interpretation would leave the uncertainty of how long the physical holding must be sustained to be caught by the provision. It would create the enforcement challenge of requiring continued observation of the driver for that period of time if the prohibition is to be effective.  Continued observation by a police officer who is looking to his right or left while driving his vehicle, would put him at risk of rear-ending a vehicle that is ahead of him.

Here is an interesting question for you to consider. If while driving in a middle lane on a highway and you see an accident just happening, can you legally grab your cell phone and contact the police?