Ontario Criminal


“Holding” device had to be interpreted in manner that had regard to design and function

Appeal by accused from her conviction for holding or using hand-held wireless communication device contrary to s. 78.1(1) of Highway Traffic Act (Ont.). Police officer charged accused after he saw her holding her cell phone while she stopped at red light. Accused testified that she drove home from work when her phone dropped to floor. She could not pick it up because she was driving. When she arrived at red light she had opportunity to safely retrieve her phone and she did so. It was then that officer approached her and ticketed her. She did not use phone and did not intend to use it. JP convicted her because she held phone. That was sufficient to convict her for offence was made out if accused either held phone or used it. Appeal allowed. Accused acquitted. At issue was statutory interpretation of phrase “while holding or using a hand-held wireless communication device or other prescribed device” contained in s. 78.1(1). Accused submitted that “holding” was to be interpreted in context that legislature prohibited “using” of such device. “Using” referred to use of device to receive or to transmit telecommunications. “Holding” had to be similarly interpreted in that “holding” was for purpose of receiving or transmitting telecommunications. This interpretation was not accepted. Section 78.1 was enacted to promote road safety by banning use of use of cell phones and other hand-held electronic devices. Primary focus of provision was use of such devices. Legislature also prohibited “holding” such devices for purpose of road safety. Manual manipulation of device even when not being used posed its own safety concerns. In addition, holding phone in hand, even if phone was not being used, could interfere with driver’s physical dexterity while driving. Court, however, agreed with accused that “holding” had to be interpreted contextually, not only with respect to other words used in provision but also with due regard to objective of legislature. Crown went too far when it extended prohibition to mere touching of phone or to using device even if unrelated to its design or function. “Holding” or “using” of device had to be interpreted in manner that had regard to device’s design and function. To be “holding” device more was required than merely touching or briefly handling phone. It was not necessary to prohibit driver from merely touching phone just to hand it to passenger or to move it within car. Accused did not commit offence because she only moved her phone from floor to seat when it was safe to do so. Justice accepted accused’s testimony in this regard and erred by convicting her since her momentary holding of phone was not “holding”.

R. v. Kazemi (June 20, 2012, Ont. C.J., Nakatsuru J.) 103 W.C.B. (2d) 131 (8 pp.).

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