The Toronto Police Service [“TPS”] is about to wrap up its latest campaign against distracted driving. Entitled “That Text or Call Could End It All”, the TPS started its week-long blitz of media and enhanced enforcement (using a hearse as a visual aid) to drive home the point that driving and handling communication devices are a potentially deadly combination.

Public safety concerns animate law enforcement’s special attention to drivers who cannot break their attachment to their smart phones of choice even once the rubber meets the road. Reflective of the safety concerns, according to reports, police assert that since 2011 they have laid over 82,000 “distracted driving-related” charges.

With many charges arising from enforcement efforts around relatively new amendments to the Highway Traffic Act, unsurprisingly people receiving tickets are winding up in traffic court (the Ontario Court of Justice level at locations that handle “provincial offences” or charges related to regulating daily life on the roads, at work, etc.) and considering how to respond.

The road safety emphasis on which law enforcement efforts are grounded also impacts how Ontario’s most authoritative court, the Court of Appeal for Ontario, has interpreted the legislative ban on holding or using hand-held communications devices under s. 78.1(1) of the Highway Traffic Act.

Largely because the Ontario legislature’s objectives in enacting s. 78.1(1) include protecting those who use the roads of Ontario and promoting driver attentiveness, the Court of Appeal’s approach to interpreting key components of the ban has clearly limited a defendant driver’s ability to argue that she is not guilty because

(a) she was not “holding” her smart phone while she drove or that

(b) her smart phone was “not capable of receiving or transmitting telephone communications, electronic data, mail or text messages” while she drove.

Subsection 78.1(1) 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.

The legislation did not include its own built-in definition for “holding”. In R. v. Kazemi, 2013 ONCA 585, using the approved approach to legislative interpretation, the unanimous Court approached considered “holding” in its

-entire context,

-ordinary and grammatical sense,

– in harmony with the intentions of the legislature and

– in harmony with the scheme and object of the legislation in question.

On this approach, the Court of Appeal determined that ordinary meaning of “holding” – simply having something in your hand for any length of time –  is the one most harmonious with Ontario’s purposes of protecting people on the roads by having drivers always focus, without any interference, on their primary endeavour: driving.

Accordingly, a defence to a subsection 78.1(1) prosecution arguing that the defendant only had her iPhone or Blackberry in her hand for “a second” or that “sustained” holding is required is not available.

In R. v. Pizzurro, 2013 ONCA 585, a companion case heard on the same date as Kazemi, the Court of Appeal unanimously held that prosecutors need not prove that an item which ordinarily falls within the definition of the term “wireless communication device”, namely a cell phone/smart phone, is capable of receiving or transmitting telephone communications, electronic date, mail or text.

Again, using a standard approach to interpreting legislation, the Court determined that the elected officials who debated and passed the ban on phone holding while driving would have intended reasonable expectations on law enforcement and prosecutors.

At paragraphs 11-12 of the Pizzurro decision, the Court states:

[11] The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally at cell phones. Observing a driver holding or using a cell phone while driving would not be enough if this requirement existed. For each case, the police would also have to find ways to immediately acquire and test the cell phone in order to determine that it was capable of receiving or transmitting. I do not think that the legislature would have intended such a burden to be imposed by a section that is otherwise designed to operate in a simple and straightforward way. [writer’s emphasis]

[12] It would also be unreasonable for prosecution. Where for example the charge is using a cell phone while driving, to require the Crown, once it has proven the use of a cell phone to communicate, to also prove that the cell phone that was being used to communicate is capable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden. [writer’s emphasis]

As in the Kazemi case, road safety objectives were fundamental in the Court’s analysis.  At paragraph 13, the Court notes:

[13] Finally, the legislative purpose of s. 78.1(1) must be considered. In R. v. Kazemi, (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cell phones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving. To hold out the possibility that the driver may escape the prohibition because the cell phone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives. [writer’s emphasis]

Undoubtedly, cases may arise in which traditional defences are asserted such as claiming that holding the device while driving was “necessary” (i.e. done in an unanticipated emergency situation without other reasonable alternatives in an effort to avoid a danger or risk greater than the one caused by holding the device while driving) or that all reasonable efforts were made to avoid committing the prohibited conduct (i.e. “due diligence”).

In addition, while the individual circumstances surrounding the fact that a person drove while holding a phone may not insulate the driver from guilt, those circumstances must be considered at the sentencing stage because they are relevant to how much the punishment the offender deserves (i.e., the amount of the fine increases up when the facts show the offender’s conduct is more deserving of blame). This is why a driver who texts constantly for 10 minutes while driving at 110km per hour on the Toronto section of a 400-series highway during heavy snowfall might be getting a heftier fine than the person who simply picked up his phone off the floor near the area of the gas pedal after it slid there unexpectedly during a 20km per hour drive on a deserted country road.

Still, at a time in which the government, public interest groups and insurers are part of a swelling tide of concern around distracted driving, drivers must expect that road safety goals premised on focused driving will set the tone and framework for decisions about guilt and punishment.