Can a Cell Phone Be Used While Driving If Only Used As a Phone?

A Cell Phone May Be Touched While Driving If the Device Is Properly Mounted and If the Device Is Being Used Solely For the Purpose of Making or Taking a Phone Call.

Understanding the Cell Phone Touch While Driving Exception Including Use Limitations and Mounting Requirements

Man Driving While Holding Cellphone A driver of an automobile who is holding or touching a cellphone, or other electronic communication device, while driving is deemed as driving while distracted; however, if the driver can show that the cellphone was properly mounted and was touched solely for the purpose of making or taking a call, such is a permitted exception.

The Law

The Highway Traffic Act, R.S.O. 1990, c. H.8, prescribes a prohibition from touching various electronic devices, including a cellphone, while operating an automobile; however, there are various exceptions, including, per Display Screens and Hand Held Devices, O. Reg. 366/09, as a regulation to the Highway Traffic Act, the exception allowing the making or taking of a phone call if the cellphone device is properly mounted.  Specifically, the Highway Traffic Act and the applicable regulation state:

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.

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.

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.


(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.


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


(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.


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

(a)  for a first offence, to a fine of not less than $500 and not more than $1,000;

(b)  for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and

(c)  for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000.


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

(a)  for a first offence, for three days;

(b)  for a first subsequent offence, for seven days; and

(c)  for a second subsequent or an additional subsequent offence, for 30 days.


(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).


(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).


(8) In this section,

motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

Exemption for pressing buttons

14. (1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position.

As was stated within the case of R. v. Singh, 2016 ONCJ 618, unlike the prosecution who holds the beyond a reasonable doubt burden to prove that a person charged within an offence actually did commit the offence, a person charged holds only the lower balance of probabilities burden to prove that an applicable exception applies to the circumstances of the case.  The Singh case specifically states:

17.  Section 47(3) of the POA places the burden of proof on a defendant who claims the benefit of an exception.  It reads:

The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

18.  In R. v. Goleski,[3] the Supreme Court of Canada recently interpreted a Criminal Code section that is virtually identical to section 47(3) of the POA.  The Court held that the accused bears a persuasive burden to prove such an exception – that is, on a balance of probabilities.

Summary Comment

The touching of a cellphone, or other electronic communication devices, while driving is strictly prohibited per the Highway Traffic Act; however, there are exceptions that apply including the touching of a cellphone that is properly mounted and is used only for making or taking a call.


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