Hand-held communication devices are everywhere in Ontario. It is rare to find someone who doesn’t own a cell phone, tablet, or smartwatch. However, driving while using such a device can result in being charged by the police for “Driving with Handheld Communication Device.”Charged with cell phone and distracted driving offence OTD Legal

These offences carry a significant court fine, three demerit points, and can have a significant impact on insurance costs. These offences can also carry a driver’s licence suspension.

Canada’s Hands-Free Laws on Driving With a Cell Phone

These offences 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 occurred before January 1, 2019, or afterwards.

Court Penalties If You Have Been Charged With Cell Phone Use While Driving Or A Distracted Driving Offence Before January 1, 2019

The previous court penalties for a conviction were 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 as follows:

  • 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 If You Have Been Charged With Cell Phone Use While Driving Or A Distracted Driving Offence After January 1, 2019

Changes to this area of the Highway Traffic Act took effect on January 1, 2019. The main change was an increase in fines depending on how many previous convictions have occurred, along with the addition of mandatory licence suspensions.

The new penalties are 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
  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

(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
  3. 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.

This can most easily be summarized as follows:

Novice Drivers and Handheld Communication Devices

Novice drivers are drivers in the early stages of graduated licensing (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 Driving 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 licensed 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.

Companies also have a vested interest in contesting offences 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 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 Should I Do If I’ve Been Charged With Cell Phone Use While Driving?

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.

Have You Been Charged With Cell Phone Use Or Distracted Driving In Ontario?

If you've been charged with distracted driving in Ontario you should contact us as soon as possible. We have skill and experience in helping drivers just like you respond to accusations of cell phone use while driving or distracted driving and provide free, confidential consultations to empower you to fight your charges. We help drivers throughout Ontario including Cambridge, Georgetown, London, Windsor and from our home office in Kitchener. Contact us online or call us directly at 1.844.647.6869 or text us a copy of your ticket to 226.240.2480.

Ron Harper
A licensed paralegal with over 30 years of experience in traffic offences. Founder of OTD Ticket Defenders.