R. v. Kazemi, 2013 ONCA 585


From the Court of Appeal for Ontario:

On appeal from the judgment of Justice Shaun S. Nakatsuru of the Ontario Court of Justice dated June 20, 2012, with reasons reported at 2012 ONCJ 383 (CanLII), 2012 ONCJ 383, allowing the appeal from the conviction entered by Justice of the Peace Ruby Wong on July 26, 2011.

Goudge J.A.:

[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 one’s hand at all while driving. A complete prohibition also best focuses a driver’s 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 driver’s 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.

[15] The interpretation of “holding” offered by the appeal judge requires that there be some sustained physical holding. Any holding for a shorter period of time, with the accompanying risks to road safety and driver attention, would be exempt from the prohibition. With respect, I do not think this accords with the ordinary meaning of the word. Nor does it properly reflect the object of the HTA or best achieve the legislature’s purpose in enacting the section. Moreover such an interpretation would leave the uncertainty of how long the physical holding must be sustained to be caught by the provision. It would create the enforcement challenge of requiring continued observation of the driver for that period of time if the prohibition is to be effective.

[16] I would therefore conclude that the appeal judge erred in his interpretation of “holding” in s. 78.1(1) of the HTA. The correct interpretation requires that the appeal be allowed and the conviction restored.

R. v. Kazemi, 2013 ONCA 585