We've all seen it. Maybe when looking around while stuck in stop-and-go traffic on a highway. Maybe when noticing that a car in front of us doesn't move when the traffic light turns green. It's the distracted driver - texting away on a handheld device instead of paying attention to the traffic and surrounding road conditions.

Distracted driving has become one of the most dangerous hazards on our roads today. In most provinces in Canada, fatalities caused by distracted driving have now exceeded the fatalities caused by both impaired driving and speeding. The Canadian Automobile Association ("CAA") has published statistics noting that a driver texting on a cell phone is 23 times more likely to be involved in an accident or near accident than a non-distracted driver.

In Canada, health and safety legislation requires employers to protect the health and safety of workers in their workplaces and a 'workplace' includes a vehicle used for work purposes. As a result, finding ways to reduce instances of distracted driving is a significant concern for many employers. However, the concern is a complicated one to address, given that the legislation governing the use of handheld devices while driving varies as between jurisdictions across Canada.

Recent Cases Involving Distracted Driving

Nova Scotia

Nova Scotia passed legislation in 2007 which made it an offence to "use a hand-held cellular telephone or engage in text-messaging on any communication device while operating a motor vehicle on a highway." In the recent decision of R. v. Ikede (PDF), a Nova Scotia appeals court was called upon to consider the application of this legislation to a decision of a lower court acquitting a driver of distracted driving.

In this case, a police officer observed a driver operating his vehicle with what appeared to be a cellular telephone in his right hand, which he had raised to 'voice level' and appeared to be speaking into. The police officer pulled the driver over and discovered that the driver wasn't talking to another human being on the telephone, but was instead asking "Siri" - the iPhone's voice-activated problem solver - for directions. After being charged with distracted driving, the driver argued at trial that the charge should be dismissed because he had not been using his cellular telephone at the time the police offer pulled him over. The judge agreed and concluded that when the driver, without looking at the screen of the device, engaged a voice-activated navigational system related directly to the safe operation of the vehicle, through a hand-held electronic communication device, he was not "using" a cellular telephone.

While the driver's conduct would have constituted distracted driving under the governing legislation of other provinces, it was not caught by Nova Scotia's legislation, which had been drafted quite narrowly some eight years earlier - well prior to the advent of "Siri".

Ontario

Ontario's legislation provides that "[n]o person shall 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, mail or text messages." In 2013, in R. v. Kazemi (PDF), the Ontario Court of Appeal was required to consider what it means to hold or use a handheld device.

In this case, a police officer observed a driver with her cell phone in her hand while stopped at a red light. When she was pulled over, the driver told the police officer that her cell phone had been on the seat of her car, but had dropped to the floor when she braked for the traffic light. She claimed that when the officer saw her with the cell phone in her hand, she had merely been picking it up from the floor while safely stopped at a red light. Nonetheless, the driver was charged with distracted driving and the issue for the court's consideration was whether the driver's actions constituted a holding or using of a hand-held wireless communication device. At trial, the judge found the driver guilty of distracted driving, but the conviction was overturned on appeal. A further appeal was launched which brought the case before the Ontario Court of Appeal. After reviewing the facts, the Court of Appeal reinstituted the driver's conviction for distracted driving, finding that the driver's actions did constitute the holdingof a cell phone. The Court of Appeal stated, "[r]oad safety is best ensured by a complete prohibition on having a cell phone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving."

Lessons for Employers

The laws with respect to distracted driving vary across Canada. It is important for employers to be aware of the scope of the laws in each of jurisdictions in which they operate and to inform their employees of those laws. As part of this process, employers should consider creating a program or procedure governing the permitted use of hand held devices and setting limitations or prohibitions on that use, particularly when driving, along with a statement that disciplinary action will be taken for violations of the policy. Finally, as with any policy, employers should ensure that their employees are trained on the policy and reminded of its terms on a regular basis.