Cell Phone Rules Of The Road You Need To Know

You never know exactly what is going on in a judge's head, but you have to wonder in some cases, if a judge ever thinks, 'this law is wacked.'

We will never know if that thought passed through Justice Nakatsuru's mind earlier this year when he was faced with the appeal case of The Queen versus Kazemi.

In that case, on a late evening in April, Ms. Kazemi was returning home from her work at The Children's Aid Society in her grey SUV. Toronto Police Constable Miller observed her stopped at a red light. P.C. Miller testified she then glanced down and back up at the traffic light several times. It appeared to P.C. Miller that Ms. Kazemi was punching numbers on her cell phone although he did not actually see her do it.

When P.C. Miller walked over to the vehicle and peered in, he saw Ms. Kazemi holding an open Nokia flip cell phone in her right hand. He did not examine the cell phone to see if it was capable of sending or receiving messages. Ms. Kazemi was adamant at the time she was stopped by P.C. Miller that she was not on her cell phone.

At her trial, Ms. Kazemi testified that while she was driving on the Don Valley Parkway, her cell phone dropped to the floor. Once she was off the D.V.P. and safely stopped at a red light, she stooped down and retrieved her cell phone. She claimed she did not use it, nor had she intended to use it.

The Justice of the Peace, who heard the case in the first instance, said he believed her, but convicted her of the offence anyhow ... How cruel is that?

So, what is the offence?

Section 78.1(1) of the Highway Traffic Act states:

No person shall drive a motor vehicle on a highway while holding or using a handheld communication device that is capable of receiving or transmitting telephone communications, electronic data, mail, or text messages.

So there it is, in black and white ...No person shall drive a motor vehicle while holding a cell phone.

And what was the unlucky Ms. Kazemi doing when P.C. Miller peered into her vehicle late that April evening? Holding her Nokia cell phone, that's what.

The Appeal judge went through all the law he had before him, even dragging out some quaint old Latin maxims (noscitur a sociis ) to see if he could find some way around those hateful words "while holding..." a cell phone. He could not.

But wait. Surely the members of the Ontario legislature who created the law did not really mean what they said.

Surely "holding" did not include "holding"... of a certain kind.

The Appeal Judge found that "a certain kind of holding" included:

"Merely touching a cell phone, for example, just to hand it to a passenger or to move it within the car", and;

"Such a momentary handling of a cell phone does not fall within the meaning of "holding" as found in the provisions", Judge Nakatsuru said.

Not guilty.

And that was that.

Lessons to be learned?

1) Sometimes a creative Judge can be as helpful as a good lawyer.

2) When can you use your cell phone legally?

  • When your car is stopped, off the road or lawfully parked and not impeding traffic.
  • On duty police, ambulance and firefighters can use their cell phones while driving.

If you are involved with the police and need a criminal law lawyer, The Ross Firm has criminal law lawyers who have been very successful in defending clients charged with offences ranging from simple drug cases to murder.

Give us a call.

Talk to us.

We can help.

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