Mobile Devices and Driving in Ontario and Quebec
Recent amendments to Quebec’s Highway Safety Code and coming changes to Ontario’s Highway Traffic Act regulate more strictly the use of mobile devices while operating a motor vehicle in Quebec and Ontario. These rules, which apply both to drivers of personal vehicles and to drivers in the freight and passenger transportation industries, are part of an ongoing tendency to tighten legislation in this area. In this article, we look at the statutory regimes in Ontario and Quebec.
The Use of Handheld Devices in Quebec
The Quebec Highway Safety Code (“HSC”) prohibits the use while driving of a portable electronic device or of a display screen, although a driver may send or receive telephone calls or text messages while using a hands-free device, and may use a smartphone’s or other device’s GPS function if the device is attached or integrated to the vehicle. The driver is presumed to be using the device if it is held in any way, such that the actual use of a device need only be explicitly proven where the device is not held in any way. Upon conviction, offenders are subject to a fine between $300 and $600 for a first offence, and the minimum fine is doubled for repeat offenders. In all cases, five demerit points are added to an offender’s driver abstract upon conviction, out of a possible 15 for a typical adult driver.
Since June 30, 2018, a peace officer may suspend a driver’s license on behalf of the Société de l’assurance automobile du Québec (Quebec’s motor vehicle authority, “SAAQ”), where the officer believes that the driver has currently committed an offence related to the use of an electronic device, and where the driver has been convicted of the same offence within the last two years. The duration of the suspension is either three, seven or thirty days, depending on the number of previous convictions within such two-year period. The HSC provides for expedited review of this suspension by a judge of the Court of Québec, but only in the case of a 30-day suspension. Otherwise, decisions may be reviewed by the SAAQ itself, or by the Superior Court of Québec upon an application for judicial review, which options may not provide relief before the expiration of the suspension.
The Use of Handheld Devices in Ontario
In Ontario, the Highway Traffic Act (“HTA”) prohibits the usage or the holding of a hand-held wireless communication device or other prescribed device that is capable of transmitting telephone communications, electronic data, mail or text messages while driving. Simply holding a phone or other device while driving is against the law, and while a person may wear a smart watch, he or she may not use it, even where the watch is not connected to the internet or to a mobile phone. Using a hands‑free device is possible, but only to turn it on or off. A mounted device, for example a phone or a GPS, may constitute such hands-free device as long as the device is secured to the vehicle. A conviction in Ontario results in a fine between $300 and $1,000, and three demerit points are added to the driver’s record out of a possible 15 for a fully licenced driver.
Beginning January 1, 2019, the minimum fine will increase to $500 and demerit points will double from three to six for repeat offenders. In addition, the HTA will provide for driver’s licence suspensions upon conviction in the area of mobile devices: three days for a first offence, seven days for a second offence, and thirty days for any subsequent convictions. Unlike Quebec, these HTA amendments in Ontario will not provide for roadside licence suspensions. We also note that an agreement between Quebec and Ontario that reciprocates demerit points for some offences does not currently include convictions for using mobile devices, such that an Ontario driver convicted in Quebec will not receive demerit points on his or her Ontario licence, and vice versa.
Were the constitutionality of Quebec’s pre-trial suspensions to be contested, the courts would again be asked to decide on the extent to which the presumption of innocence in penal and criminal matters should impact administrative proceedings, and whether a driver’s licence may be suspended for up to thirty days based solely on the opinion of a peace officer. Recent case law in the area of impaired driving suggests that these provisions may endure such a challenge. As Ontario’s coming suspensions upon conviction and Quebec’s roadside suspensions apply equally to drivers of personal and commercial vehicles, such licence suspensions could be disruptive to the operations of freight and passenger transportation companies. Motor carriers should thus monitor closely their drivers’ previous convictions with respect to mobile devices, and should develop, implement and enforce strict policies around the use of mobile devices while driving.