Hi everyone. I'm asking for a friend who has a question of interpretation.
He was ticketed for using a hand-held device. He contends that he was acting within the exemption provided under Subsection 14 (1) of O. Reg. 366/09, which reads as follows (emphasis added):
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).
My friend says his phone was placed securely in the centre console cupholder in the car such that it was at a slight angle so he could see the screen at a glance if necessary. He wasn't driving his own car, so the phone was not paired with the built-in Bluetooth; instead, he was using an on-ear device. I've seen him drive with his phone like that and have never seen it move. As he puts it, the phone rang, he glanced to check the caller ID and pressed the Answer button. It was as he was pressing the button that the officer saw him.
I agree that his reading of the exemption would cover him. I'm just wondering if anyone is aware of any case law that defines or limits what constitutes "placed securely" and that may nullify his argument.
The Onrario Court of Appeal has upheld that sitting in console or cupholder is not securely mounted.
Your friend has not complied with his obligations under law.
Thanks, FyreStorm. Do you have a case name? I've been going crazy trying to find one.
R. v. Fernandes-Salema, 2019 ONCJ 67
It seems to mean that you actually need a mounting device, so centre console would not count.
In the Fernandes-Salema case, the defendant actually held the phone, that is, had it in his hand. In my friend's case, he simply pushed a button to answer a call without actually holding it. To both him and me, the question remains how courts define "placed securely."
That's an interesting angle. It does mention that the handheld device "does not move while the vehicle is in motion"... and arguably it can move around in the centre console (e.g. fast turns/stops).
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