“Hand-held Device”

I recently got a ticket for drive-hand-held communication device. I was stopped at a red light the entire time I was on the phone (about 10 seconds). is this a viable defence?

and p.s. does anyone know how many points this is?

There are no demerit points associated with the S.78.1 Handheld offence. You can check here http://www.e-laws.gov.on.ca/html/regs/e ... 0339_e.htm

http://www.e-laws.gov.on.ca/html/statut ... ]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.[/quote]Unfortunately, you can not hold your phone at any time while you're on the road, even when stopped at a red light: http://www.thestar.com/news/crime/2013/ ... rules.html

R. v. Kazemi, 2013 ONCA 585: http://www.ontariocourts.ca/decisions/2 ... m[quote][1] The facts of this case are simple. On April 26, 2010, the respondent was driving home from work alone. While she was stopped at a stop light, a police officer observed her to have a cell phone in her hand. She said that the cell phone had been on the seat but had dropped to the floor of the car when she braked. She picked it up when she got to the red light. That was when she was observed by the officer.

[14] Road safety is best ensured by a complete prohibition on having a cell phone in ones hand at all while driving. A complete prohibition also best focuses a drivers undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cell phone. It removes any temptation to use the cell phone while driving. And it prevents any possibility of the cell phone physically interfering with the drivers ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cell phone in his or her hand while driving.[/quote]Lets say your phone has run out of battery or doesn't have a SIM call/data, and you're caught holding it... you can be convicted.

R. v. Pizzurro, 2013 ONCA 584: http://www.ontariocourts.ca/decisions/2 ... m[quote][1] On February 14, 2011, the respondent was driving southbound on Highway 11. He was observed by a police officer to have a cell phone in one hand. It appeared to the officer that the respondent was either typing or reading the information on it.

[3] The trial court rejected the respondents argument that there was no evidence that what the officer observed him using was an operating cell phone, and that this was required in order to convict him. The respondent was found guilty and fined $125.00

[10] Moreover, to impose the requirement that a cell phone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution. The legislature could not have intended that result.

[11] The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally at cell phones. Observing a driver holding or using a cell phone while driving would not be enough if this requirement existed. For each case, the police would also have to find ways to immediately acquire and test the cell phone in order to determine that it was capable of receiving or transmitting. I do not think that the legislature would have intended such a burden to be imposed by a section that is otherwise designed to operate in a simple and straightforward way.

[12] It would also be unreasonable for prosecution. Where for example the charge is using a cell phone while driving, to require the Crown, once it has proven the use of a cell phone to communicate, to also prove that the cell phone that was being used to communicate is capable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden.

[13] Finally, the legislative purpose of s. 78.1(1) must be considered. In R. v. Kazemi, (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cell phones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving. To hold out the possibility that the driver may escape the prohibition because the cell phone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.[/quote]

rooferrick wrote:I recently got a ticket for drive-hand-held communication device. I was stopped at a red light the entire time I was on the phone (about 10 seconds). is this a viable defence?

It's not. You need to be legally parked. If you can't get out of your car and leave it there legally, you can't use your phone.

@rooferrick you can also get yourself a windscreen or car-vent mount, and check out your phone all-day long.