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Using a Hand-Held Device or Cell Phone while Driving in Ontario

Handheld communication devices are everywhere in Ontario. It is rare to find someone that doesn’t own a cell phone, tablet, or smart watch. However, driving while using such a device can result in being charged by the police for “Drive with Handheld Communication Device.” These charges carry a significant court fine, 3 demerit points, and can have a significant impact to insurance costs. These offences can also carry a suspension of driver’s licence.
RON HARPER, LICENSED PARALEGAL

These charges are defined under section 78.1 subsection 1 of the Highway Traffic Act:

“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.”

It is important to note that while this law states that it is illegal to actively use such a device while driving, it is also illegal to even hold the device. This could include briefly holding or touching the device to plug it in to charge or briefly picking it up if it has fallen from its resting place.

Currently the penalties for a conviction are being changed. The court penalties, if convicted, will depend on whether the offence is before January 1, 2019 or afterwards.

COURT PENALTIES FOR OFFENCES BEFORE JANUARY 1, 2019

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.”

It is important to note that these are the base fines that are issued by the court. An additional victim fine surcharge is added to the court fine:

  • The provincial government adds a victim fine surcharge (VFS) to every non-parking fine imposed under the Provincial Offences Act. It is deposited into a special fund to help victims of crime.
  • The amount of the VFS is usually 20 per cent of the imposed fine. For example, a $100 fine would result in a $20 surcharge. Fines over $1,000 carry a surcharge of 25 per cent.
COURT PENALTIES FOR OFFENCES ON OR AFTER JANUARY 1, 2019

Pending changes to this area of the Highway Traffic Act are set to take effect on January 1, 2019. The new penalties will be as follows:

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

  1. for a first offence, to a fine of not less than $500 and not more than $1,000;
  2. for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and
  3. 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.

Same

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

  1. for a first offence, for three days;
  2. for a first subsequent offence, for seven days; and
  3. for a second subsequent or an additional subsequent offence, for 30 days. 2017, c. 26, Sched. 4, s. 16.

Same

(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.”

This can most easily be summarized as follows:

Occurence Fine* Licence Suspension
1st $500 to $1000 3 Days
2nd $500 to $2000 7 Days
3rd or later $500 to $3000 30 Days

* This is the base fine issued by the court and is subject to the additional victim fine surcharge.

The main change is an increase to fines depending on how many previous convictions have occurred along with the addition of mandatory licence suspensions. Novice drivers are also subject to additional penalties.

NOVICE DRIVERS AND DRIVE WITH HANDHELD COMMUNICATION DEVICE

Novice drivers are drivers in the early stages of graduated licencing (i.e.. G1, G2, M1, M2) in Ontario. These licences permit fewer demerit points to be accumulated and are subject to multiple conditions and restrictions. One such condition is that a conviction for Drive with Handheld Communication Device will trigger the MTO’s ‘escalated sanctions penalty.’ These additional penalties are as follows:

  • 30-day licence suspension for the first occurrence
  • 90-day licence suspension for the second occurrence
  • Licence cancellation and a requirement to re-apply for a G1/M1 after the third occurrence. Any fees paid, credit received for time spent in the program or BDE credit would be forfeited when the licence is cancelled. Please note that in the case of a hybrid driver, only the novice-class licence is cancelled on the third occasion; their full-class licence is maintained.

Novice drivers may already be on high-risk insurance or borderline to being on high-risk insurance. Given their limited driving history and greater risk assessment, novice drivers may experience greater insurance problems than a fully licenced and experienced driver.

COMMERCIAL MOTOR VEHICLE (CMV) DRIVERS

Transport truck drivers and other commercial motor vehicle drivers must be exceptionally careful in avoiding or mitigating any demerit points or records of conviction. Any recorded conviction can directly impact a CMV driver’s current employment as well as their future employability with new employers.

Companies also have a vested interest in contesting charges issued against their drivers. Any driver who is convicted of an offence under the company’s CVOR number will result in a record of conviction against the company’s record as well. This CVOR record of conviction can then impact the employer’s insurance costs as well as create problems between the company and the Ministry of Transportation.

WHAT TO DO IF CHARGED WITH DRIVE WITH HANDHELD COMMUNICATION DEVICE?

If you have been charged by the police, you will have a limited period of time to make a number of important decisions that will have a large potential impact on your life for years to come. The first thing you will need is the basic information necessary to make informed decisions. Our friendly staff are here to help you and offer a no-cost, no-obligation initial consultation to assist you. You can either request your free consultation online or contact our staff directly to assist you.