Most of us know by now that texting and driving is dangerous and prohibited by law in Nova Scotia. Do you know, though, exactly what it means to “use” your cell phone while driving?

A recent CBC article noted the high volume of cell phone driving tickets in British Columbia, which explicitly prohibits holding the phone in a position in which it might be used unless you are parked or using hands-free technology.[1]

In Nova Scotia the texting and driving offence is contained in s. 100D of the provincial Motor Vehicle Act, which says it is an offence for a person to use a hand-held cellular telephone or engage in text messaging on any communications device while operating a vehicle. What then constitutes “use” of a communications device?

While other provinces have legislation that is more specific about the meaning of “use” our Act does not, so it has been left to judges to interpret. The law’s purpose is, broadly, to prevent distracted driving. “Use” therefore has also been interpreted broadly. So broadly, in fact, that you might be surprised at what counts as “use.”

Use has been interpreted to mean much more than an actual text or call. Some case outcomes seem intuitive – in 2013 woman was convicted in Bridgewater under s. 100D for holding a phone in her hand near the steering wheel while using MapQuest.[2] In 2014 a man was convicted in Halifax for holding his phone while looking at it in anticipation of an incoming text while driving.[3] Back in 2013 a man was convicted for looking at the phone he had in his hand to check the time.[4]

In a 2015 case, however, a Kentville man was found not guilty of s. 100D for holding his phone up near his face to give voice instructions to a navigational system but not looking at the screen.[5] Based on these recent cases it seems as though the combination of holding and looking at your phone, whether or not you do anything more, is sufficient to found a guilty verdict.

The safest bet appears to be not to either touch or look at your phone while driving – to be safe it’s hands-free or nothing.

[1] Motor Vehicle Act, RSBC 1996, c 318, s 214.1

[2] R v Ferguson, 2013 NSSC 191.

[3] R v MacDonald, 2014 NSSC 442.

[4] R v Lumsden, cited at para 17 of R v MacDonald, supra note 3.

[5] R v Ikede, 2015 NSSC 264.

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