“Holding” a cell phone will get you fined for distracted driving in Nova Scotia: The Queen v. Cullen Edward MacDonald

by John McKiggan

Are you “using” your cell phone if you are just holding it?

That’s the question that was before the Supreme Court of Nova Scotia this week. In a decision released yesterday: The Queen v. Cullen Edward MacDonald, Justice Chipman of the Nova Scotia Supreme Court ruled on Section 100D (1) of the Motor Vehicle Act with respect to you what it means to “use” a handheld cellular telephone.

Texting and driving

The respondent, Cullen MacDonald was charged with texting while driving. The section of the Motor Vehicle Act in question says:

Cellular Telephones

100(D)(1) it is an offence for a person to use a hand-held cellular telephone or enage in text messaging on any communications device while operating a vehicle on a highway.

MacDonald argued at trial that he wasn’t actually texting at the time he was pulled over. Rather he was just holding his cell phone and waiting for a friend to text him.

Holding different from using?

The adjudicator in traffic court acquitted Cullen of the offence saying that there was a difference between holding a telephone and actually texting while driving.

The Province appealed and Justice Chipman came down on the side of common sense and safety, ruling that holding a cell phone while waiting for a text to arrive meets the definition of use under the Motor Vehicle Act.

Justice Chipman stated at paragraph 16 of his decision:

“In my view, the adjudicator erred in law by interpreting “use” in a manner that is inconsistent with the purpose of the specific section as well as the overall purpose of the MVA. In this regard, the purpose of section 100(D)(1) is to prevent people from driving while distracted. Further, the purpose of the MVA is to regulate highway traffic in the interest of public welfare and safety.”

Driver was distracted even when not texting

In the MacDonald decision, Justice Chipman determined that the evidence showed that the defendant was distracted in two ways. In paragraph 20 of his decision Justice Chipman stated:

“In the present case, the evidence established the respondent was using his hand held cellular telephone while driving. The evidence demonstrated that he was distracted in two ways. First, by looking at his cellular phone while driving to check and see whether he had received a text. Second Mr. MacDonald was holding the cellular phone in his hand while driving. One again, the section in question prohibits the use of hand held devices. In my view, physically holding ones phone is important to the interpretation of “use” in the context of the purpose of the section; ie to prevent accidents.”

You can reach the full text of Justice Chipman’s decision here.

End Distracted Driving

I have been volunteering for an organization called EndDD.org for many years doing presentations in schools to educate students about the dangers of distracted driving.

In those presentation we show students that texting and driving is not the only form of dangerous distractions.

Three types of distracted driving

In fact, we teach the students that there are three major forms of distracted driving:

1. Physical distractions: These are distractions that take your hands off the wheel, like holding a coffee cup while driving or reaching for your cell phone to respond to a call or text.

2. Visual distractions: Any distraction that requires you to take your eyes off the road, like looking down at your phone to see if you’ve received a text or looking into the backseat to talk to your friends or children.

3. Cognitive distractions: These are distractions that take your attention away from the road. In other words, thinking about or concentrating on anything other than your primary task; driving.

Deadly consequences

According to statistics Canada more than 170,000 Canadians are injured every year as a result of distracted driving. More than 2000 die every year as a result of distracted driving.

Here in Nova Scotia distracted driving is now the number one cause of death on Nova Scotia highways.

If you want more information about endDD.org you can click here.

If your organization or school would like to arrange for me to attend and present the End Distracted Driving presentation you can contact me here.

Decision promotes safety on Nova Scotia highways

I applaud Justice Chipman’s common sense decision. It will help promote safety on Nova Scotia highways and hopefully will help raise awareness about how common, and dangerous, distracted driving can be.

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