Ontario Man convicted of distracted driving just for holding his cellphone

Just holding a cellphone while driving will result in a distracted driving charge.
Just holding a cellphone while driving will result in a distracted driving charge. iStock.

Have you ever had a hand-held device in your hands while driving, even if you were not using it?

Hang on to your hat, because if you are now caught holding it while driving, even if you are doing nothing else, you will be charged with distracted driving.

R. v. Fabian, which was an Ontario court case from last year in which Sean Fabian had been charged with committing the offence of driving while holding a hand-held communication device, which violates the Ontario Highway Traffic Act.

What is seen as a hand-held device for the purposes of the distracted driving law? Cellphones, other communication devices, entertainment devices, and more.

Fabian was stopped by police constable Conrad Bertasson, who had been assigned on patrol duties that day. He stopped Fabian, because he allegedly saw him driving while holding a dark coloured object in his hand, which the officer identified as a cellphone.

As it had to be proven that Fabian indeed held the cell phone while driving in order for him to be found guilty, Fabian claimed that Bertasson could not have positively identified the dark object as a cellphone from a distance of 12 feet, and therefore couldn’t prove that what he had held was a cell phone.

The court dismissed this argument, finding that Bertasson had gained a lot of experience doing patrols in which cellphones were involved.

The important thing to note in this case is that Bertasson didn’t say that he saw Fabian speaking on the phone or doing anything else with it. All the officer saw Fabian do was hold the cellphone in his right hand. He noted no other unsafe behaviour.

The point here is that you don’t have to actively use a hand-held device in order to be charged with distracted driving. It is illegal in Ontario to do anything such as: text, talk, email, dial and even just hold a hand-held device.

See: Distracted Driving – FAQ

In the end, Fabian was found to not have taken all reasonable care while driving just for holding a cellphone, and was found guilty. Lucky for him, his guilty verdict came before the new distracted driver penalties came into effect that now carry much stiffer penalties for distracted drivers.

See: New distracted driving penalties take effect in Ontario on Sept. 1

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