By Arthur Weinreb - Sep 28, 2013 in Driving
Toronto - In a pair of decisions, the Ontario Court of Appeal ruled the prosecution need not prove a cellphone was actually being used by a driver before a conviction can be entered for distracted driving. Merely holding one is sufficient.
Judgments in the cases of R. v. Kazemi and R. v. Pizzurro were handed down yesterday. Both cases were argued on May 23, 2013.
In each case the defendant was convicted of distracted driving before a Justice of the Peace. Both appealed, and their convictions were overturned by judges of the Ontario Court of Justice. The Crown appealed the setting aside of the convictions to the Court of Appeal.
Kazemi was driving home from work on April 26, 2010. When she was stopped at a red light, a police officer observed she had a cellphone in her hand. The woman never denied she was holding the phone; she said the device was on the seat and it fell on the floor when she braked. She merely reached down and picked the phone up.
The Ontario Court of Justice judge set aside the conviction, finding that there must be more than a temporary holding of a prohibited device to constitute an offence.
Pizzurro was driving on Highway 11 on Feb. 14, 2011 when an officer observed him holding a cell phone. According to the police officer, he was either sending or reading a text message.
His conviction was set aside after Ontario Court of Justice Judge George Beatty found that an essential element of the offence was that the cell phone must be "capable of receiving or transmitting telephone communications, electronic data, mail or text messages." The court found the prosecution had not proved Pizzurro's device was so capable and quashed the conviction.
Both Kazemi and Pizzurro were charged under section 78.1(1) of the Highway Traffic Act which reads, "No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages."
In Kazemi's case, the issue was what constitutes "holding." The appellate court applied the ordinary meaning of the word and found there was no minimum period of time a person has to have something in their hand before it can be said they are holding it. The court also found if it were otherwise, they would have to define how long a person has to have something in their hand before it can be said they were holding it.
The Court of Appeal also looked at the intention of the legislature in enacting the section. The intent was to remove temptation from people to use cell phones or other electronic devices while they are operating a motor vehicle.
In Pizzurro's case, the court ruled that it would be pretty well impossible for the prosecution to prove a particular hand held device was capable of transmitting or receiving voice or other communications at the time the offence was alleged to have been committed. More importantly, the justices interpreted the phrase "capable of receiving or transmitting telephone communications, electronic data, mail or text messages" as applying only to "other prescribed device" and not to "hand-held wireless device." Therefore there was no need to prove Pizzurro's cell phone was capable of transmitting or receiving voice or text.
It is estimated between 30 and 80 per cent of all collisions in Ontario occur as a result of the use of cell phones and other hand-held devices.