The Ontario Court of Appeal Upholds an Absolute Prohibition on Holding Cell Phones While Driving in R. v. Kazemi and R. v. Pizzurro

On 27 September 2013, the Ontario Court of Appeal released two judgments that together uphold an absolute prohibition on holding a cell phone while driving. The provision at issue in both cases was section 78.1(1) of the Highway Traffic Act (HTA). This provision prohibits driving while “holding or using a hand-held wireless communication device.”

 In R. v. Kazemi (2013 ONCA 585) [Kazemi], the court held that holding a cell phone for any length of time is prohibited. The court additionally held in R. v. Pizzurro (2013 ONCA 584) [Pizzurro] that the Crown does not need to demonstrate that the cell phone is capable of receiving or transmitting communications or data. The court grounds its reasoning for upholding an absolute prohibition in the legislative purpose of section 78.1(1)—“Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving.” (Pizzurro at para 13)

The Law

Kazemi and Pizzurro both deal with section 78.1(1) of the HTA:

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.

However, each case deals with a different element of this provision. Kazemi addresses the meaning of the “holding” requirement, while Pizzurro addresses the meaning of the “capability” requirement.

The Court Holds the Line

In Kazemi, the accused testified that she had picked up her phone at a red light after it had dropped on the floor of the car. This is when the police officer observed her holding the phone.

The trial court found that the accused’s admission that the phone was in her hand was sufficient to show that she was “holding” it for the purposes of section 78.1(1). The Ontario Court of Justice overturned this on appeal. The appeal judge held that the “holding” requirement of section 78.1(1) requires a sustained physical holding of the phone. Since the accused had held the phone only momentarily, the appeal judge ruled that the “holding” requirement was not made out. The court rejected the appeal judge’s interpretation of a sustained holding requirement and opted instead for the ordinary meaning of “to hold” as defined in The New Shorter Oxford Dictionary: “to have a grip on” or “to support in or with the hands.” (Kazemi at para 11)

Undergirding the court’s choice of an ordinary meaning for “holding” is its desire to best attain the statutory purpose of section 78.1(1). This provision was added to the HTA with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act. The Minister of Transportation at the time said that the purpose of the legislation was to increase road safety in Ontario: “For safety’s sake, driver[s] should focus on one thing and one thing only: driving.” (Ibid at para 13.)

The court decided to reject the appeal judge’s “sustained holding” requirement because holding a phone for a short period of time would still distract drivers, which would run counter to the statutory purpose of section 78.1(1). Also, the court noted that a “sustained holding” requirement would create the “enforcement challenge” of continued observation of the driver for the period of time required to trigger the prohibition. (Ibid at para 15.)

Therefore, the court’s ordinary meaning interpretation of section 78.1(1) results in an absolute prohibition—if you hold your phone for any period of time while driving, the provision applies.

Doesn’t Work? Doesn’t Matter

Pizzurro was released at the same time as Kazemi because it centered on section 78.1(1), but this case specifically dealt with the “capability” portion of the provision. The accused was observed using his cellphone while driving and was charged under section 78.1(1). At trial, the accused argued that a requirement of this charge was demonstrating that the cell phone was in fact operational. He argued that he should be acquitted because there was no evidence that his cell phone was operational. The accused was found guilty.

The accused appealed to the Ontario Court of Justice. The court agreed with the accused’s argument that an essential element of section 78.1(1) is showing that the cell phone is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. Since the prosecutor did not discharge his burden of proving the essential elements of the offence, the judge acquitted the accused.

The court begins its analysis by noting that section 78.1(1) applies to two kinds of devices: cell phones and other devices prescribed by regulation. The capability requirement is grammatically attached to the “other devices” component of section 78.1(1): “hand-held wireless communication device or other prescribed device that is capable.” [Emphasis added] The court reads this as an indication that the “capability” requirement applies to prescribed devices but not to cell phones:

This constitutes the legislature’s direction to the Minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. On the other hand, cell phones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them. (Pizzurro at para 9.)

The court justifies this conclusion by arguing that imposing a “capability” requirement as an essential element of section 78.1(1) would create a “significant challenge for law enforcement.” (Ibid at para 11.) The police would have to find ways to immediately acquire and test the cell phone, for example. Having rejected the accused’s argument that demonstrating capability is essential to the offence, the court restored the conviction.

Look, But Don’t Touch

The court’s holdings in these cases are very clear, delivered as they are in two short, punchy decisions: No holding of any kind, and no capability required. However, it will be interesting to see whether challenges arise to the “using” requirement of section 78.1(1).

The court has made it clear that you cannot hold a cellphone in your hand, but many touchscreen phones require only nimble swipes to use if they are mounted in a holder. Spotting this would be a significant enforcement challenge for police because it would be difficult to distinguish between someone using their phone and the radio, for example.

The evidentiary hurdles would also be a heavy lift for prosecutors, as they would have to show that they were in fact using the phone specifically. It would appear, then, that even after these decisions, the law still allows for much cell phone use in cars if it is confined to simply looking at your screen.