Cellphone Touch Exception: The Making or Taking a Call Using a Mounted Device

Hand-held devices prohibited

Wireless communication devices

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.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions

(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.

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same

(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.

Penalty

(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.

Same

(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.

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).

Regulations

(7) The Minister may make regulations,

(a)  prescribing devices for the purpose of subsections (1) and (2);

(b)  prescribing persons, classes of persons, devices, activities, conditions and circumstances for the purpose of subsection (4).

Definition

(8) In this section,

“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

17.  Section 47(3) of the POA places the burden of proof on a defendant who claims the benefit of an exception.  It reads:

The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

18.  In R. v. Goleski,^[3] the Supreme Court of Canada recently interpreted a Criminal Code section that is virtually identical to section 47(3) of the POA.  The Court held that the accused bears a persuasive burden to prove such an exception – that is, on a balance of probabilities.