A police officer caught Khojasteh Kazemi holding her mobile phone while stopped at a red light in Toronto. Kazemi was charged under the Highway Traffic Act, which prohibits ‘holding or using a hand-held wireless communication device ... that is capable of receiving or transmitting...’ Kazemi fought the charge, saying that she had merely picked up the phone from the floor of the car where it had fallen and was not actually using it. The officer had not, furthermore, even bothered to verify whether the phone was turned on.
While many of Kazemi’s arguments were rejected, she still got off: R v Kazemi, 2012 ONCJ 383. The statutory provisions do make a distinction between ‘holding’ and ‘using’, so strictly speaking it is not necessary for a person charged with the offence actually to have been making use of the device, nor is it necessary for the police officer to check whether the device is operating – it just has to be capable of operating. On the other hand, the judge concluded that ‘holding’ couldn’t mean simply touching the phone, which would criminalise having it in a pocket next to the body or handing it to a passenger. ‘Momentary’ handling of a mobile phone does not fall within the meaning of ‘holding’ for the purposes of the offence.
The correctness of the decision is doubtful: surely the statutory language means what it says and is intended to forestall bogus ‘I wasn’t texting; I was just momentarily holding the Blackberry’ kinds of arguments.
[Link available here].