Section 78.1(1) of the Ontario Highway Traffic Act creates the offence for “distracted driving”. This traffic ticket is properly known as Drive Hand-Held Communication Device.
What is distracted driving?
Distracted driving is one of the most prevalent charges issued when a police officer observes a driver talking, texting, or holding a cell phone while behind the wheel and is therefore “distracted” from driving with due care or attention. However, there is a clear distinction between being distracted while using a Hand-Held Communication Device (a cell phone), or being distracted while driving by eating, drinking, changing radio stations, or even applying make-up which would actually result in a Careless Driving ticket.
What is a drive hand-held communication device ticket?
This is the actual offence created by the Ontario Highway Traffic Act that the police use to charge an Ontario driver caught driving while using a cell/smart phone. When it comes to this traffic ticket, it is always important to note the following:
- you don’t have to using the phone, such as talking or texting, to be charged. Simply holding the ticket in your hand is more than enough for the police to issue you a traffic ticket; and
- your vehicle doesn’t actually have to be in motion for you to receive a ticket. Being stopped at a red stop light does not allow you to use, hold, or check your phone.
What is the penalty for a distracted driving ticket?
A conviction for distracted driving, or what really should be referred to correctly as a conviction for drive hand-held communication device, is no laughing matter. As a result of more and more accidents and deaths in Ontario being a direct result of people using their cell phones while driving, the penalty for distracted driving has increased significantly.
As of January 1st, 2019, the penalty for a Drive Hand-Held Communication Device, or distracted driving, ticket for a first time offender is as follows:
- a court-imposed monetary fine between $500, and $1,000, plus surcharge and court cost;
- three (3) demerit points imposed by the Ontario Ministry of Transportation (MTO) following a conviction; and
- a three (3) day Ontario Driver’s Licence suspension imposed by the MTO following a conviction.
What is the penalty for second conviction?
If you are convicted of distracted driving (drive hand-held communication device) for a second time within a five (5) year period from your previous conviction, the penalty escalates and the following penalties are applicable:
- a court-imposed monetary fine between $500,and $2,000, plus surcharge and court cost;
- an additional three (3) demerit points imposed by the MTO following a conviction; and
- a seven (7) day Ontario Driver’s Licence suspension imposed by the MTO following a conviction.
What is the penalty for a subsequent distracted driving ticket in Ontario?
While I honestly hope that you do not face any more than two (2) distracted driving/drive hand-held communication device tickets in a five (5) year period (or any at all, for that matter), the penalty for subsequent convictions increases significantly.
Any subsequently convicted offender faces:
- a court-imposed monetary fine between $500, and $3,000, plus surcharge and court cost;
- three (3) demerit points imposed by the MTO; and
- a thirty (30) day Ontario Driver’s Licence suspension imposed by the MTO following a conviction.
What impact does a conviction for drive hand-held communication/distracted driving ticket have on my insurance?
Before I can even begin to answer this question, I have to point out that I am a licensed Paralegal working in the Ontario court system and do not represent or work for an insurance company. My advice to my clients is to always review your insurance policy to check for clauses concerning increases to rates and duty to report offences/convictions.
In my professional experience assisting an immense number of Ontario drivers through their distracted driving tickets, it has been brought to my attention that many insurance companies have recently begun to drop coverage for those convicted of using their cell phone while driving. There are just as many companies who won’t drop coverage but will instead increase the premium significantly that it almost becomes burdensome to afford.
The risk to your insurance premiums alone is more than enough to obtain the evidence and challenge a drive hand-held communication ticket in court.
How do penalties for a distracted driving ticket differ for novice drivers?
The penalties for novice drivers, such as someone with a G2 classification of licence, do differ slightly from those imposed against fully licenced drivers. While the monetary fines imposed by the courts are the same, the MTO-imposed penalties do differ. Unlike fully licenced drivers who will also have three (3) demerit points applied to the licence following a conviction, novice drivers face much longer Ontario driver’s licence suspensions.
A person with a novice licence will face:
- a thirty (30) day suspension as a first-time offender;
- a ninety (90) day suspension as a second-time offender (within a five (5) year period);
- an Ontario Driver’s Licence cancellation for a subsequent offence within a five (5) period from the date of your first offence.
Should I fight my distracted driving ticket?
Due to the increased penalties associated with convictions for distracted driving in Ontario, it is my legal opinion that anyone facing an allegation of Drive Hand-Held Communication Device contrary to s. 78.1(1) of the Ontario Highway Traffic Act should, at the very least, file the ticket in order to obtain the charging officer’s evidence as to what they may have seen on the date of the offence.
In Canada, those charged with a traffic ticket have the right to be heard and have the right to a trial. The onus is on the Crown prosecutor to prove that the offence has been made out beyond a reasonable doubt. Unreasonable evidence can sometimes lead unreasonable verdicts and therefore it is imperative that you become fully informed in regards to the case and allegation against you before making a decision whether to plead guilty or exercise your right to have a trial.