Facing a Distracted Driving Ticket in Ontario? The Team at OTD Legal Can Help!

Have you been cited for texting or using your cell phone while driving or other forms of distracted driving? Our team of paralegals and lawyers is here to offer assistance. We provide dedicated defense services and advocate tirelessly for your rights.

Driving while using a cell phone can result in being charged for “Driving with Handheld Communication Device.” The penalties for distracted driving offences can include expensive fines, demerit points, and an increased insurance premiums. Distracted driving convictions may also result in license suspension.

Today, hand-held communication and electronic entertainment devices, such as cell phones, tablets, and smartwatches are ubiquitous, which makes our team’s expertise more relevant than ever. We understand the nuances of distracted driving tickets and are adept at navigating these complex cases.

If you find yourself facing a texting and driving ticket, contact us for a free consultation.

Canada’s Hands-Free Laws on Driving With a Cell Phone

These offences are defined under section 78.1 subsection 1 of the Ontario Highway Traffic Act (HTA):

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. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

It is important to note that while this law states that it is illegal to actively use such electronic devices while driving, it is also illegal to even hold the device behind the wheel. This could include briefly holding or touching the device to plug it in to charge or briefly picking it up if it has fallen from its resting place. Furthermore, whether the motor vehicle is in motion or stopped anywhere on the roadway, it is still a violation of the Highway Traffic Act to use or hold a hand-held wireless communication device.

Court Penalties If You Have Been Charged With Cell Phone Use While Driving Or A Distracted Driving Offence BEFORE January 1, 2019

The previous court penalties for a distracted driving conviction were as follows:

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000. 2015, c. 14, s. 23

It is important to note that these are the base fines that are issued by the court. An additional victim fine surcharge is added to the court fine as follows:

• The provincial government adds a victim fine surcharge (VFS) to every non-parking fine imposed under the Provincial Offences Act. It is deposited into a special fund to help victims of crime.
• The amount of the VFS is usually 20 per cent of the imposed fine. For example, a $100 fine would result in a $20 surcharge. Fines over $1,000 carry a surcharge of 25 per cent.

Court Penalties If You Have Been Charged With Cell Phone Use While Driving Or A Distracted Driving Offence ON OR AFTER January 1, 2019

Changes to Ontario’s distracted driving law took effect on January 1, 2019. The main change was an increase in fines depending on how many previous convictions have occurred, along with the addition of mandatory license suspensions. The new distracted driving penalties are as follows:

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable,

1. for a first offence, to a fine of not less than $500 and not more than $1,000
2. for a first subsequent offence, to a fine of not less than $500 and not more than $2,000
3. for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000. 2017, c. 26, Sched. 4, s. 16

(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s license,

1. for a first offence, for three days
2. for a first subsequent offence, for seven days
3. for a second subsequent or an additional subsequent offence, for 30 days. 2017, c. 26, Sched. 4, s. 16

(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). 2017, c. 26, Sched. 4, s. 16. This can most easily be summarized as follows:

Novice Drivers and Handheld Communication Devices

Novice drivers are drivers early stages of graduated licensing (i.e. G1, G2, M1, M). These licenses allow fewer demerit points to be accumulated and are subject to multiple conditions and restrictions. One such condition is that a novice driver who is convicted of Driving with a Handheld Communication Device will trigger the MTO’s ‘escalated sanctions penalty.’ These additional penalties are as follows:

• 30-day license suspension for the first occurrence
• 90-day license suspension for the second occurrence
• License cancellation and a requirement to re-apply for a G1/M1 after the third occurrence. Any fees paid, credit received for time spent in the program, or BDE credit would be forfeited when the license is cancelled. Please note that in the case of a hybrid driver, only the novice-class license is cancelled on the third occasion; their full-class license is maintained.

Novice drivers may already be on high-risk insurance or borderline high-risk insurance. Given their limited driving history and greater risk assessment, novice drivers will, therefore, experience greater insurance problems than a fully licensed and experienced driver if convicted of distracted driving.

Commercial Motor Vehicle (CMV) Drivers

Transport truck drivers and other commercial motor vehicle drivers have to be careful to avoid  any demerit points or driving convictions, especially when it comes to texting and driving tickets. Any recorded conviction can directly impact a CMV driver’s current employment as well as their future employability. Companies also have a vested interest in contesting offences issued against their drivers.

Any driver who is convicted of an offence under the company’s CVOR number will result in a record of conviction against the company as well. This CVOR record of conviction can then impact the employer’s insurance costs as well as create problems between the company and the Ministry of Transportation.

Can I Use A Cell Phone While Driving In Ontario?

No.  Under Highway Traffic Act section 78.1(1) it is illegal to do so:

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.  2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Drivers are prohibited from using or even “holding” a hand-held wireless communication device or device that is capable of transmitting:

• Telephone communications
• Electronic data
• Mail
• Text Messages

Can I Use A Hand-Held Entertainment Device While Driving In Ontario?

No.  Like cell phone use, Ontario drivers are prohibited from driving while using a hand-held electronic entertainment device under Highway Traffic Act section 78.1(2):

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.  2009, c. 4, s. 2.

It is illegal to use, or even hold, such devices while you are driving.  Doing so can result in your being stopped and charged by the police which could result in very serious consequences.

Can I Use A Hand-Held Communication Or Entertainment Device In Hands-Free Mode?

There is a provision under Highway Traffic Act section 78.1(3) allowing the use of hand-held communication or entertainment devices to be used in hands-free mode:

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.  2009, c. 4, s. 2.

Are There Any Legal Exemptions Allowing You To Drive With A Hand-Held Communication Device?

Yes, there are a few exemptions.  These exemptions are described under Highway Traffic Act section 78.1(4) as follows:

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.  2009, c. 4, s. 2.

Unless you are a person who meets one of these legal categories, you can be stopped and charged by the police for using or holding a cell phone while driving.

Can I Use A Cell Phone While Driving To Call The Police?

Yes.  There is just such an exemption under Highway Traffic Act section 78.1(5):

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.  2009, c. 4, s. 2.

Under this section of law you can use your cell phone while driving so long as it is to contact:

• An ambulance
• The police
• The fire department

Is There Any Way I Can Use My Cell Phone While In My Car?

Under limited conditions, yes.  These conditions are detailed under Highway Traffic Act section 78.1(6) as follows:

(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.  2009, c. 4, s. 2.

You are permitted under this exemption to use your hand-held communication or entertainment device so long as all three of the following conditions are met:

• You’re off the road or parked lawfully on the road
• Your vehicle is not moving
• Your vehicle is not blocking traffic

If any of these conditions are not met, the police can charge you under Highway Traffic Act section 78 (1) or (2).

For How Long Does The Court Count Prior Convictions In Determining A Subsequent Offence? 

Under Highway Traffic Act section 78.1(6.3), offences are looked at over a period of 5 years in determining if an offence is considered ‘subsequent’:

(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). 2017, c. 26, Sched. 4, s. 16.

Does The Highway Traffic Act Contain All The Information I Need To know About Cell Phone Use?

Unfortunately, not necessarily.  Highway Traffic Act section 78.1 (7) provides the government the authority to make further rules in separate regulations:

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).  2009, c. 4, s. 2.

With further laws potentially spread out in other regulations, it would be relatively difficult for the average person to track down and understand all the information that may be relevant to the defence of their specific case.  An experienced and licensed paralegal can take care of that information and research for you.

What Should I Do If I’m Charged By The Police?

Cell phones charges are very serious offences.  A conviction can result in a large court fine and the suspension of your license.  If you have been charged by the police, we can help you.  Our team of administrative and paralegal professionals work hard to protect the rights and interests of our clients.  The first step is to speak with one of our team members so that we can understand what has happened and how we can help you.  We can help answer your questions so that you can feel confident that you are making informed decisions. 

Distracted Driving FAQs