OK to briefly touch or grasp your cellphone, but Not OK to “hold” it, judge rules…

thespec.com | Jul 6, 2012

by Peter Small

Briefly handling your cellphone while behind the wheel should not get you a ticket under Ontario’s recent distracted driving law, a judge has ruled.

“To be ‘holding’ a hand-held wireless communication device requires more than merely touching or a brief handling of such a device,” says provincial court Justice Shaun Nakatsuru.

Nakatsuru overturned a ruling by Justice of the Peace Ruby Wong, who had found a Toronto woman guilty of “holding” her cellphone while stopped at a red light when she retrieved it from her car floor, where it had dropped.

The ruling is binding on Ontario justices of the peace, who hear many such Highway Traffic Act cases.

Risk of crashing while talking on cellphone overestimated: study

“It was the just thing to do,” the driver, Khojasteh Kazemi, said in an interview. “I didn’t do anything. I just picked up the phone when I was behind the red light.”

Although originally fined $200, the mother of one has spent considerably more fighting the case as a matter of principle.

“It was so unjust,” she said.

Andrew Dekany, the lawyer who conducted Kazemi’s appeal without charge, called it a sensible decision. “When a law is too, too rigid, almost absurd, people don’t follow it.”

Stephanie Hems, a paralegal with X-Copper Legal Services, said she expects more drivers will be taking advantage the ruling as a new line of defence.

The ruling reiterates how open to interpretation the law is, she said.

The Canadian Automobile Association’s Elliott Silverstein said other distracted driving charges may be challenged as a result and police may change how they approach the issue.

Most importantly, the Ministry of Transportation may need to tighten the legislation, he said.

Kazemi was returning home from work as an Oshawa social worker on April 26, 2010.

While driving her SUV on the Don Valley Expressway, her cellphone dropped from the seat to the floor.

“She could not pick it up as she was driving,” Nakatsuru said in his June 20 ruling.

When she stopped at a red light at Gerrard St. E. and River St., after exiting the expressway, she retrieved it from the floor.

“She did not use it nor did she intend to use it,” the judge said.

A police officer, standing at the corner saw her glancing down and up at the red light several times. It appeared to the officer she was punching numbers on her phone, although he did not actually see this, the judge said.

He walked over to the passenger side front door and saw Kazemi holding an opened black Nokia flip cellphone in her right hand.

Section 78.1 (1) of the Highway Traffic Act, which came into effect on Oct. 26, 2009, says you cannot drive “while holding or using a hand-held wireless communication device.”

The Crown argued any touching of a cellphone is prohibited, even if unrelated to its function. The judge disagreed. “Cell phones are not inherently dangerous or noxious products,” Nakatsuru wrote.

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