Q&A - Received a Ticket for Using a Cell Phone
I have a question regarding driving violation 214.1(1) prohibiting cell phone usage while driving. I recently was pulled over by an RCMP officer and when I asked what was wrong he said that I had been using my cell phone while driving. I tried to respectively deny this as I had not been using my phone.
I explained that I had removed my cell phone from my purse which was on the passengers seat and placed it on my console so that I wouldn’t forget to call my friend once I got to my destination. I also tried to show him that my phone was in sleep mode and would require both hands off the wheel to take it out of this mode just so it could be used in the first place.
I tried to show him that I had no incoming/outgoing calls at the time he pulled me over.
I told him that I wear trifocals and would need the phone right in front of me and much closer to my eyes just so that I could make out the numbers and buttons (I have an old type phone).
He didn’t seem interested in any of this but repeated a couple of times that I had “looked” at the phone. I told him that I hadn’t but for arguments sake possibly glanced in that direction - although I didn’t even recall that.
I should mention that he was on a bicycle and he told me that he had been right beside me – I think this is why he was able to see me grab the phone and place it on the console because otherwise if he had been in a car he would have never noticed it as I never lifted the phone much above waist level.
He wrote up the ticket and came back and told me that I couldn’t even “hold” my phone. I replied that I wasn’t aware of that – I thought you had to be using or appear to be using your cell phone for it to be a violation.
When I got home I looked up the wording of 214.1(1) and found that it didn’t seem to refer to just holding the cell phone but stated that if it is held in a position in which it may be used. I didn’t have the phone in a position that I would be able to use it (as outlined above) although I do admit it was in my hand for a few seconds.
I was/am a strong supporter of the ban on cell phone usage (didn’t even use one before the ban) so this was a huge surprise and a blow to me to be issued this ticket. I have been in many vehicles where the driver’s phone has rung and instead of answering it he/she passed the phone to the passenger to answer believing that they were supporting the cell phone law by not using the phone themselves – I know that this was my understanding as well.
I don’t believe the majority of people driving realize that even touching your cell phone for even a moment may be a violation worthy of a ticket/fine.
My question is it actually against the law to hold my phone, even for a few seconds when I was not using or attempting to use or even have it in a position to use? Regardless, I don’t intend to ever take another chance as I realize how easily it could be misunderstood, but I would like to know if what I had done in this situation was actually legally wrong.
Cell Phone Rules
Here is what the Motor Vehicle Act has to say:
Prohibition against use of electronic device while driving
214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.
(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.
"use", in relation to an electronic device, means one or more of the following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device's functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
The Use of Electronic Devices While Driving Regulation is what is meant by the use of the word "regulations" above. It adds:
"Use" further defined
2 A person who watches the screen of an electronic device uses the device for the purposes of paragraph (d) of the definition of "use" in section 214.1 of the Act.
Prescribed electronic devices
3 (1) The following electronic devices are prescribed for the purposes of paragraph (c) of the definition of "electronic device" in section 214.1 of the Act:
(a) electronic devices that include a hands-free telephone function;
(b) global positioning systems;
(c) hand-held electronic devices, one of the purposes of which is to process or compute data;
(d) hand-held audio players;
(e) hand microphones;
(2) In subsection (1), "hand microphone" means a communication device consisting of a hand-held unit that
(a) is both receiver and microphone,
(b) is operated by a push and hold-to-talk function, and
(c) allows for oral communication, but not for the transmission and receipt of oral communication at the same time.
Unfortunately for you, "holding it in a position in which it can be used" has a very broad latitude. You'll note that being on or off doesn't enter into the equation either, just the potential of using it is important for deciding if there is a violation or not. Depending on the court, having it in hand may be enough to decide that it is in a position in which it may be used. The only way that you will be sure is to dispute and see what happens. I have no case law to cite to help you out with this situation.