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Ontario Driver’s Guide To Cell Phone Tickets and Distracted Driving

Cell phones are one of the most commonly owned pieces of personal technology in Ontario.  Cell phones are everywhere.   It’s common to see people walking down the street or eating at a restaurant with a cell phone in their hand.  Even at home and work, cell phones are used for productivity and leisure. 

But, what happens when cell phone use becomes mixed up with driving a vehicle?  In Ontario, the Highway Traffic Act is one of the main bodies of law regulating vehicles and how they can be driven.  So, what does this law say about cell phone use while driving?  Are there any exemptions?  What are the penalties if you’re convicted?  Could you lose your licence?

These are all incredibly important questions that we’re going to answer in this week’s article. With over 1.3 million Highway Traffic Act offences heard by the Ontario courts each year, there’s a good chance that you or someone you know has or will be charged by the police.  Ontario’s regional police and OPP have recently been putting on law enforcement blitzes to catch drivers who are using their cell phones while behind the wheel.  This week’s article is a good one to share with your friends and family.  It could help save them from getting into the trouble with the police and save their licence from suspension!

When you’re facing a serious offence like a cell phone charge, it can be a wise decision to retain a paralegal.  Paralegals are regulated and licenced under the Law Society just as lawyers are.  Hiring a paralegal to fight your offence at court is generally more cost effective than pleading guilty to the offence or attempting to fight it on your own.  Paralegals know the law and the court process and are there to represent you and advocate for you at court.  This helps avoid the many legal mistakes and missteps that can occur when defendants attempt to represent themselves at court.

If you have a question that you’d like to ask, we’d love to hear from you.  You can submit a blog question and we’ll make sure to either include a response to it in a future article or to send you back a direct response.  It never hurts to ask questions, especially if the answers can help protect you from breaking the law.  If you’ve unfortunately already been charged by the police, you’re going to need information and answers to your questions much more quickly.  If this is your current situation, you can submit an online consultation request and one of our staff will contact you to assist you.  Hopefully this week’s discussion of Ontario’s Highway Traffic Act laws regarding cell phone use will keep you, as well as your friends and family, safe from running afoul of the law.

Let’s take a look!

Can I Use A Cell Phone While Driving In Ontario?

No.  Under Highway Traffic Act section 78.1(1) it is illegal to do so:

Hand-held devices prohibited

Wireless communication devices

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.  2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Definitions

Highway Traffic Act Section 1(1):

highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; (“voie publique”)

motor vehicle” includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”)

Drivers are prohibited from using or even “holding” a hand-held wireless communication device or device that is capable of transmitting:

  • Telephone communications
  • Electronic data
  • Mail
  • Text Messages

Can I Use A Hand-Held Entertainment Device While Driving In Ontario?

No.  Like cell phone use, Ontario drivers are prohibited from driving while using a hand-held electronic entertainment device under Highway Traffic Act section 78.1(2):

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.  2009, c. 4, s. 2.

It is illegal to use, or even hold, such devices while you are driving.  Doing so can result in your being stopped and charged by the police which could result in very serious consequences.

Can I Use A Hand-Held Communication Or Entertainment Device In Hands-Free Mode?

There is a provision under Highway Traffic Act section 78.1(3) allowing the use of hand-held communication or entertainment devices to be used in hands-free mode:

Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.  2009, c. 4, s. 2.

Are There Any Legal Exemptions Allowing You To Drive With A Hand-Held Communication Device?

Yes, there are a few exemptions.  These exemptions are described under Highway Traffic Act section 78.1(4) as follows:

Exceptions

(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.  2009, c. 4, s. 2.

Unless you are a person who meets one of these legal categories, you can be stopped and charged by the police for using or holding a cell phone while driving.

Can I Use A Cell Phone While Driving To Call The Police?

Yes.  There is just such an exemption under Highway Traffic Act section 78.1(5):

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.  2009, c. 4, s. 2.

Under this section of law you can use your cell phone while driving so long as it is to contact:

  • An ambulance
  • The police
  • The fire department

Is There Any Way I Can Use My Cell Phone While In My Car?

Under limited conditions, yes.  These conditions are detailed under Highway Traffic Act section 78.1(6) as follows:

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

  1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
  2. The motor vehicle is not in motion.
  3. The motor vehicle is not impeding traffic.  2009, c. 4, s. 2.

You are permitted under this exemption to use your hand-held communication or entertainment device so long as all three of the following conditions are met:

  • You’re off the road or parked lawfully on the road
  • Your vehicle is not moving
  • Your vehicle is not blocking traffic

If any of these conditions are not met, the police can charge you under Highway Traffic Act section 78 (1) or (2).

What Is The Fine For Driving With A Cell Phone In Ontario?

The court penalties for a conviction of driving while using a cell phone are very serious.  The fines for a conviction are described under Highway Traffic Act section 78.1(6.1) as follows:

Penalty

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $500 and not more than $1,000;

(b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and

(c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000. 2017, c. 26, Sched. 4, s. 16.

The penalties for a conviction escalate each time that they occur:

Offence Minimum Fine Maximum Fine
First $500.00 $1,000.00
Second $500.00 $2,000.00
Third or later $500.00 $3,000.00


It is important to be aware that these fines are just the base fine issued by the court.  These fines are also subject to an additional victim fine surcharge.  Once this additional surcharge has been added to your fine, the worst-case total-payable fine for a third (or later) offence would be $3,750.00.  A fine of that size would be overwhelming for many Ontarians and is certainly a strong motivation to keep your cell phone tucked away while behind the steering wheel.

Can My Licence Be Suspended For Driving With A Cell Phone? 

Yes.  If you are convicted for driving with a hand-held communication or entertainment device, you will have your licence suspended under Highway Traffic Act section 78.1(6.2) as follows:

Same

(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence,

(a) for a first offence, for three days;

(b) for a first subsequent offence, for seven days; and

(c) for a second subsequent or an additional subsequent offence, for 30 days.  2017, c. 26, Sched. 4, s. 16.

Just as your fine increases depending on prior convictions, so too does the length of your licence suspension:

Offence Length of Suspension
First 3 days
Second 7 days
Third or later 30 days


Novice drivers are subject to escalated sanctions penalties as follows:

  • For a first offence:your driver’s licence is suspended for 30 days.
  • For a second offence:your driver’s licence is suspended for 90 days.
  • For a third offence: you will lose your novice licence.  You will need to re-apply for your licence and start all over, taking all tests and paying all fees. You will also lose any time discount you earned, any time you were credited, and any fees you have paid.

For How Long Does The Court Count Prior Convictions In Determining A Subsequent Offence? 

Under Highway Traffic Act section 78.1(6.3), offences are looked at over a period of 5 years in determining if an offence is considered ‘subsequent’:

(6.3) An offence under this section committed more than five years after a previous conviction for an offence under this section is not a subsequent offence for the purposes of subsection (6.1) or (6.2). 2017, c. 26, Sched. 4, s. 16.

Does The Highway Traffic Act Contain All The Information I Need To know About Cell Phone Use?

Unfortunately, not necessarily.  Highway Traffic Act section 78.1 (7) provides the government the authority to make further rules in separate regulations:

Regulations

(7) The Minister may make regulations,

(a) prescribing devices for the purpose of subsections (1) and (2);

(b) prescribing persons, classes of persons, devices, activities, conditions and circumstances for the purpose of subsection (4).  2009, c. 4, s. 2.

With further laws potentially spread out in other regulations, it would be relatively difficult for the average person to track down and understand all the information that may be relevant to the defence of their specific case.  An experienced and licenced paralegal can take care of that information and research for you.

What Should I Do If I’m Charged By The Police?

Cell phones charges are very serious offences.  A conviction can result in a large court fine and the suspension of your licence.  If you have been charged by the police, we can help you.  Our team of administrative and paralegal professionals work hard to protect the rights and interests of our clients.  The first step is to speak with one of our team members so that we can understand what has happened and how we can help you.  We can help answer your questions so that you can feel confident that you are making informed decisions. 

OTD Ticket Defenders Legal Services offers a no-cost, no-obligation initial consultation to talk with you to understand your case history and details.  Most cases can be reviewed over the phone in as little as 5 to 10 minutes.  We can be reached via our toll-free number 1-844-647-6869, by email at info@otdlegal.ca, or by text at 226-240-2480.  You can also submit an online consultation request any time of day or night, and one of our staff will contact you during regular business hours to assist you.

Posted under Distracted Driving, Traffic Ticket Defence

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