Let’s say you get the urge to scratch your ear while you are driving and you happen to use your cellphone to do it. Or the cellphone falls off your console and you retrieve it, but keep it in your hand, casually raising it near your face or mouth at times without much thought.
If seen by police, you can be stopped and charged under the Highway Traffic Act, even if the cellphone was not being used for a call at the time.
That’s the gist of a recent ruling out of provincial court in Corner Brook in which a man was convicted of driving a motor vehicle while holding a hand-held wireless communication device (cellular phone), contrary to the Highway Traffic Act.
The ruling was filed by Judge Wayne Gorman on Feb. 7.
The background of the case states that on Aug. 13 of last year, a police officer noticed Tyler Matthews driving a motor vehicle with a cellphone in his hand.
The officer described the cellphone being about 10 inches away from Matthews’ear and that Matthews’ lips were “moving.” When the vehicle was pulled over, the officer saw a cellphone plugged into the vehicle’s console.
Matthews told the officer that the cellphone had “zero battery-life.” He offered to turn the telephone on for the officer and to show the officer that the telephone’s charger was not working. The officer declined these offers and charged Matthews with driving a motor vehicle “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, email or text messages.”
Matthews pleaded not guilty and a trial was held on Feb. 4 and Feb. 7.
During the trial, the accused testified that the cellphone had “slipped” and that he grabbed it for safety reasons. He said the phone was not charged and was incapable of receiving or transmitting data, and that his lips were moving because he was frustrated and was talking to himself.
Matthews argued he should be acquitted because even though he was holding his cellphone, it was not working.
The Crown argued it had proven it had made out the charge because the facts stated that Matthews was holding the cellphone while driving the vehicle. The Crown stated it did not have to prove the device was working at the time.
Gorman agreed with the Crown, concluding that Section 176.1(1) of the Highway Traffic Act was breached by Matthews. The section states that a person shall not 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, email or text messages.
“In this case the Crown has proven (and Mr. Matthews concedes) that he was driving a motor vehicle upon a highway while holding a cellular telephone,” Gorman concluded. “Mr. Matthews has not attempted to establish that he acted pursuant to a mistake of fact or that he took all reasonable steps to avoid committing the actus reus (action or conduct that is a constituent element of a crime).”
A conviction on such an offence in Newfoundland and Labrador results in a fine and a loss of four demerit points.