The provincial Motor Vehicle Act was amended in 2007 to prohibit driving while using a cell phone. The relevant section 100D(1) reads as follows: “It is an offence for a person to use a hand-held cellular telephone or engage in text messaging on any communications device while operating a vehicle on a highway.” Nova Scotia was the second province to enact such a ban after Newfoundland and Labrador.
Those charged with the offence rarely seem to fight the ticket in court. A review of a data base containing transcripts of court decisions revealed that not a single such case in Nova Scotia has been reported. This makes it difficult for a lawyer to advise a client charged with the offence. The key issue seems to be the proper interpretation of the word “use” in section 100D(1). Is it necessary for a driver to be speaking on a phone in order to breach the section? What about other uses of a modern cell phone, such as checking e-mail or taking a photo? What if a driver has a phone in his or her hand but it has not been turned on?
Fortunately, guidance can be taken from reported decisions of the Newfoundland courts with respect to their similar legislation. Section 176.1 of their Highway Traffic Act states, in part, that “[a] person shall not use a hand-held cellular phone while driving a motor vehicle on a highway.” The proper interpretation of “use” in that province was settled by their Court of Appeal in 2006. In that case, a police officer observed a gentleman named Craig Aisthorpe driving a motor vehicle while holding a cell phone on his left shoulder, with his head leaning against the phone to hold it in place. Mr. Aisthorpe testified that he had not been engaged in a phone call but was simply waiting for a call from his boss. He said that if the phone had rung, he would have pulled over to answer it. The officer testified that he could not be certain that Mr. Aisthorpe was talking on the phone. Mr. Aisthorpe was convicted at trial, but the conviction was overturned and an acquittal entered by a senior court on the basis that he was not “using” the phone. The judge felt that “use” necessarily implied sending and receiving a communication. The Crown appealed to Newfoundland’s highest court, the Court of Appeal.
The Court felt that limiting “use” of a cell phone to sending and receiving a communication was too narrow a definition. The Court noted that such an interpretation would “[give] rise to some strange and surprising results, in that ‘use’ would not include: looking up a number in the telephone’s memory; dialing a number; or reviewing numbers of persons who had called.” The Court noted that such operations all required “the driver to look away from the road and use at least one hand to carry out the operation. In short, all give rise to the driver being distracted from driving because he or she is operating the phone”.
In sum, the Court held that an illegal “use” of a cell phone was an operation that could result in the driver being distracted. The court restored Mr. Aisthorpe’s conviction. It seems likely that a Nova Scotian court would interpret our legislation similarly.
Finally, a common response of drivers to the law (at least those without hands-free phones) has been to pull over to the shoulder of the road when making or receiving a phone call. Unfortunately, this would appear to breach the legislation as the section prohibits the “operation” of a vehicle while using a cellphone. An “operator” as defined in the Motor Vehicle Act includes not just drivers but those who have “the care or control of the motor vehicle on a highway whether in motion or not”.
