I got a ticket by a predatory downtown police for distracted driving - I wasnt using my phone - i was touching it - on the ticket itself it doesnt even say USING PHONE/TEXTING - it says HOLDING PHONE. Anyways - i got the ticket on my birthday and that was Aug 2020 and since then I've been checking my ticket online every week. I havent got a court date yet; however, I wanted to know if there any statute of limitation on this? So that I dont have to keep checking this every week after gods know how long?
There are limits on how long an officer has to charge you for an offence and how long the officer has to file.
You've already been charged and the ticket has been filed, so any argument for an unreasonable delay would have to be made in a courtroom under a charter application (11b). Under regular circumstances, a case for could be made at the 18 month mark. However, there's nothing regular about what's been going on the last year or so all of that goes out the window. Any delay under the pandemic is probably going to be a wash.
You'll just have to keep checking. I believe Toronto was last somewhere around up to a 8-10 month delay for receiving a court date. Maybe someone else can chime in.
DO NOT start ignoring it. Keep doing what you're doing. If you're given a trial date and you miss it, you will be convicted and issued a fine. If you don't pay your fine because you're no longer paying attention, your license will be suspended and you might not even realize it.
As for the argument on whether or not you were using or holding your phone, it would be considered irrelevant. The Highway Traffic Act makes no distinction between holding or using. They are both specifically prohibited.
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.
Wasnt even holding my phone - it just so happens that my hand was in contact with it lmao but okay - that sucks - ill have to keep checking. And my hand was in contact with it because im trying to keep it steady as i drive (for the gps). I literally had 2 fingers touching my phone to keep it in my cup holder. I'd argue i shouldnt be punished while trying to drive safe, because if the phone went out of the cup and im trying to know where im going - a sec of eyes off the road can be dangerous.
Not sure you'll be successful with the touching the phone argument. I would imagine the counterargument would be that you should have securely mounted the phone in a position much higher up than a cup holder and that looking down at the phone in the cup holder is in fact dangerous. Good luck
I'd agree with Markus.
The Highway Traffic Act also covers this in its exemptions for handheld devices.
There are exemptions for pressing buttons (make call, answer call, end call). You can do so if the device is secure or mounted so it doesn't move and you have to be able to see it quickly at a glance. Otherwise, you can't touch your phone.
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. O. Reg. 366/09, s. 14 (1).
Theres cases won against the court because having a cellphone holder or making sure it fits in your cupholder is not enforceable. In short, drivers shouldnt have to buy phones that will fit into their cupholders and shouldnt have to buy cellphone holders just to comply with the law.
Theres cases won against the court because having a cellphone holder or making sure it fits in your cupholder is not enforceable.
I've personally never heard of such a ruling. I'd like to read it, though.
The most high profile case probably involves Khojasteh Kazemi. Kazemi had abrupted stopped at a stop sign when her phone fell to the floor. She picked it up and an officer had charged her for holding her phone. She was convicted by Justice of the Peace Ruby Wong on July 26, 2011.
She had filed an appeal and on June 20, 2012, Justice Shaun S. Nakatsuru overruled the conviction. He had stated that "there must be some sustained physical holding of the device in order to meet the 'holding' requirement, and that the momentary handling here was insufficient to establish that requirement."
That ruling was appealed and on May 27, 2013, a panel of three judges ruled that Nakatsuru had "...erred in his interpretation of 'holding'" and the conviction was restored. The ruling is as followed:
"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."
"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 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 this 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."
"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."
In short, drivers shouldnt have to buy phones that will fit into their cupholders and shouldnt have to buy cellphone holders just to comply with the law.
Drivers are not required to drive with a phone and it's perfectly legal to have one in your vehicle. You were not charged for having a phone, but you were charged for holding one.
The panel of judges ruled that this was a matter of road safety. "Road safety is best ensured by a complete prohibition on having a cell phone in one’s hand at all while driving..."
Drivers are constantly forced to to purchase things in order to comply with the law, especially for safety reasons. Buying a phone mount wouldn't be considered any different than having to purchase new tires, replacing a burnt bulb, purchasing straps to insure cargo is secure, etc.
Driving is not considered a right in Ontario and the argument of having to purchase a mount to comply with the law wouldn't be considered a valid defense. That's just my opinion.
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