Texting and emailing while driving are dangerous habit and can lead to tragic consequences. Section 78.1(1) of the Highway Traffic Act prohibits drivers from using any hand-held devices while driving. This is a difficult law to enforce; a police officer has to catch the offender in the act of holding their device in order to lay a charge. Conviction under this section will only result in a fine, and will not cause a driver to lose any points on his licence. In two recent cases, the Ontario Court of Appeal took a hard line against drivers in violation of this section.
The Court of Appeal reversed the decision of the lower court and found a driver in violation of section 78.1(1) despite the fact that she was only holding her cell phone. The driver claimed that her phone had fallen on the floor of her car and she picked it up when stopped at a red light. She was originally convicted in 2011, but won her appeal a year later on the basis that her cell phone records showed that she hadn’t used her phone. The Court of Appeal was unanimous in its decision and Justice Stephen Goudge wrote “Road safety is best ensured by a complete prohibition on having a cell phone in one’s hand at all while driving.”
In another matter, the Court again reversed the decision of the lower court and found a driver in violation of section 78.1(1) for driving with a cell phone in his hand. The Court of Appeal did not agree with the lower court’s finding that a device had to be in working order and capable of making and receiving calls and sending messages for the driver to be charged.
At this time, these decisions have not been appealed and are not slated to go in front of the Supreme Court of Canada. These two cases will make it very difficult to defend against charges under this section.
Liability may not stop at the driver of the car. Recently, a New Jersey state appeals court recently held that someone knowingly sending a text to a driver could also be held liable if they send a text to a driver, knowing that they will read it. Although this has not Ontario law, it is an important matter to keep in mind when texting.
In August, a woman in Toronto was killed when the TTC bus she was boarding was hit by a van. Witnesses claim that the driver of the van was texting seconds before colliding with the bus. Drivers need to recognize that a split second is all it takes for a tragedy to occur.
The number of fatal collisions involving distracted drivers has risen at least 17% in Canada over the past 5 years. In Ontario, distracted driving is responsible for at least 30% of highway collisions; more than drunk driving. Although distracted driving can include anything from changing the radio station, to looking for something in your bag, to opening up a bottle of water, it is believed that cell phone is the largest area of distracted driving.