Know the legal implications of distracted driving

Avatar photo

In honor of the fact that April is Distracted Driving Awareness Month, it seems like a good idea to bring another update on the seemingly endless attempts to avoid convictions.

The statistics continue to be eye-opening.

truck driver with cell phone
(Photo: istock)

Think Insure Canada has reported that:

  • An accident is 23 times more likely to occur if the driver is texting and driving;
  • One in five drivers admit to googling or browsing while driving;
  • It takes an average of five seconds after a distraction for an accident to occur;
  • Use of smartphones are the most common form of distracted driving;
  • Texting and driving is six times more likely to cause an accident than drinking and driving;
  • It takes an average of 27 seconds after using a hands-free device to return to driving mode;
  • Incoming text notifications cause increased dopamine level in our brains, causing a compulsion to check your phone.

Let’s review: In June 2020, the British Columbia Court of Appeal confirmed that holding a turned off or disabled cellphone while driving is an offence. “Use” means holding it in a way that it can be used. The driver in that case was holding the phone at the top of his steering wheel while driving and had been relocating it from the passenger seat to access papers. His cellphone had been disabled but it was still a cellphone. 

In July 2021, the same court confirmed that, under B.C.’s Motor Vehicle Act, “holding” an electronic device can be more than just holding it in your hands. In this case, the driver had the cellphone wedged between his right thigh and his car seat while he was charging it. The appeal court confirmed that ”holding” means physically grasping, carrying, or supporting something and that the offence of distracted driving relates to “holding a device in a position in which it may be used.”  “Holding” is not restricted just to the use of a person’s hands, and not just cellphones but a variety of devices including GPS units and televisions. The whole point of enforcement is to focus on distracted conduct to prevent death and injuries.

Now, in January 2022, in R. v. Bakhsheshi 2022 BCSC 152, the British Columbia Supreme Court faced an appeal from the provincial court’s conviction of a driver for using an electronic device while driving. He had been provided with a penalty of $368 plus deducted points. Once added to his previous points, the penalties forced the suspension of his licence for four months. In this case, the driver testified that he heard a knock at his driver side door. Reaching down, he discovered it was his phone, which he picked up with his left hand, transferred to his right hand, and placed it on the dash. At this moment of transfer, the tractor-trailer he was driving swerved into the next lane, according to the police officer in the cruiser in the adjacent lane who had to take evasive action. The police officer also witnessed the cellphone in the truck driver’s left hand.

The driver’s defence was that he was not “using” his cellphone. He argued that public brochures on distracted driving did not describe simple handling as “use”. Therefore, he was unaware that picking up his phone and holding or transferring it from one hand to another would be considered “use”. The driver also denied that his tractor-trailer moved out of his own lane.

The court confirmed that “use” does not  have to mean touching the device. Using can also mean watching a screen, speaking into a device, or utilizing a function. The court reasoned that a device in plain view may tempt a driver to distraction as opposed to when it is stowed in a pocket or glove compartment. Use though must also be accompanied by an “act” such as holding. The legislation focuses on limiting contact with any electronic device.  The “use” in this case was the act of picking up, holding, and transferring the device from one hand to the other, and placing on the dash.

The lesson for today is simply do not “use” your device while driving. Don’t touch your device, and put it in the back seat or in your bag, out of your reach, so you won’t be tempted. The courts are not going to side with you at the end of the day. Your points will be affected, your licence may be suspended, a fine will be payable, and your insurance rates will go up.

April is Distracted Driving Awareness Month but, really, we should all be aware every day.

Avatar photo

Kim E. Stoll is a partner with Gardiner Roberts LLP in Toronto, and can be reached at 416-203-9509, or by emailing This article is intended for information purposes only and does not constitute legal advice.

Have your say

This is a moderated forum. Comments will no longer be published unless they are accompanied by a first and last name and a verifiable email address. (Today's Trucking will not publish or share the email address.) Profane language and content deemed to be libelous, racist, or threatening in nature will not be published under any circumstances.


  • It’s just another money grab cash cow cash cow if you can’t multitask you shouldn’t be driving in a first place Us truck drivers got to be on the go all the time we go to eat on the go we drink our coffee and eat our junk food on the go is that distracted driving come on let’s get a grip on these laws. I could see if the guy is swerving all over the road and on the cell phone to his ear at all times then he deserves the penalty sometimes we reach over to grab something from our coolers that are between the seats and move over the line at times they call that distractive driving. And you would be surprised when I go down the road or even in the cities when I look down eight out of 10 four wheelers are on their phones or texting us truck drivers be lucky one out of ten You all take care out there and be safe.

  • It reads, “…added to his points”.
    One charge of distracted driving will not suspend your licence. In Ontario, first offence is 3 points. Article doesn’t say what his other convictions are for. But you have to think there are many other times that he wasn’t caught. He’s had several convictions to have his licence suspended. Sorry no sympathy here – next time he swerves it’s your family beside him that is involved. Glad he’s off the road.