Cell phones are ubiquitous. They’re everywhere in modern society. From the on-the-go business leader conducting business to the young high school student surfing social media. Virtually everyone has one and uses one. This is where some Ontarians are running afoul of the law and getting into trouble with the police. Cell phone use while driving a motor vehicle can cause distracted drivers to swerve out of their lane or even collide with a pedestrian, object, or another vehicle. Let’s take a look at this law and some upcoming changes!
Drive With Handheld Communication Device falls under Highway Traffic Act section 78.1(1) which states:
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.
Of note, this section of the act says that not only can you not use a hand-held wireless communication device (aka. a cell phone), but you also can not even hold the device. Simply touching the device can be sufficient for a police officer to charge you as though you had been actively talking on your cell phone while driving.
To keep safe and free of any legal problems, it is best to keep the phone out of reach and out of sight.
This section of the HTA does however include some exemptions where cell phones may be used:
(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.
(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.
(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.
So, although HTA s.78.1(1) is quite broad in prohibiting any contact with a cell phone, these exemptions do apply some reasonable exemptions for their limited use. It is important to carefully note, that the exemptions listed in HTA s.78.1(6) require all three conditions to be met, not just one or two.
The current court penalties for a conviction are as follows:
(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000. 2015, c. 14, s. 23.
Usually the total-payable fine will be $490.00 (the set fine plus the victim fine surcharge and the $5.00 court cost). The MTO would also place 3 demerit points against your licence. Novice drivers a subject to escalated sanctions penalties(suspension of revocation of driver’s licence) upon conviction. A conviction for cell phone use while driving can also have a significant impact on insurance costs.
As of January 1, 2019 the following amendments will be made to this section of the Highway Traffic Act:
(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.
(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.
(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.
The first immediate issue will be increased fines. It is important to note that the fines listed do not include the victim fine surcharge or the $5.00 court cost. The maximum court portion of the fine for a first, second, or additional subsequent conviction now increases to $1,000, $2,000, and $3,000 respectively. According to sub-section 6.3, offences are considered subsequent if they occur within 5 years of previous convictions. Each time that a driver continues to use a cell phone while driving, they risk aggressively increased fines at court if convicted.
Mandatory suspensions will also come into effect. The duration of licence suspension for a first, second, or additional subsequent conviction will be 3 days, 7 days, and 30 days respectively.
DEMERIT POINTS CHANGES
One of the interesting changes to the law surrounding cell phone use while driving are demerit points. Previously, a conviction under HTA s.78.1(1) simply resulted in a 3 demerit point penalty. As of January 1, 2019 a first-offence conviction will still result in a 3 demerit point penalty. However, a subsequent conviction will now result in an increased 6 demerit point penalty. Novice drivers (G1, G2, M1, M2) do not receive demerit points.
WHAT TO DO?
If you are charged by the police, the time to know what penalties you’re facing and what your legal options are is as soon as possible. Different court jurisdictions have different filing deadlines and different filing procedures. Our friendly staff at OTD Legal Services is happy to assist you with a no-cost, no-obligation initial consultation. We can provide you with the basic information that you will need to make and informed decision as well as a complete quote for legal work without any surprise charges. Our staff can be reached via our toll-free number 1-844-647-6869, firstname.lastname@example.org, or by text at 226-240-2780.