Wednesday, December 2, 2015

Using a Cell Phone in a Drive Through

There's a recent news story about a fellow who received a nearly $300 ticket for texting while in line at a Tim Hortons drive-through.

It's important to note that this took place in Beaumont, Alberta.  This is relevant.  While most traffic offences generally apply only to 'highways', Alberta's Traffic Safety Act expressly defines 'highways' as including private property like drive-throughs and parking lots generally used by the public.  Ontario's Highway Traffic Act does not, and the courts have consistently held that such properties are not 'highways'.  (Don't get fooled by the language, though.  We may casually use the term 'highway' as being distinct from 'city streets', but city streets are definitely highways within the definition of the HTA.)

So that wouldn't happen here in Ontario.

But it's not all that different from the 'texting at a red light' scenario.  Or, as the case may be, retrieving your phone from the floor at a red light.  Any use or handling of an electronic device, at any time you're on the road (unless legally parked), is an offence.  And it's an offence with a hefty fine.  A set fine of $490, with a maximum fine of $1000, plus three demerit points.  In terms of demerits, that's about on par with driving on the wrong side of the road.

There's a good reason to treat distracted driving so seriously:  It is a deadly problem on our roads.

But, perhaps, less so at red lights or in Tim Hortons drive-throughs.

I argue that the existing legislation is, in different respects, both overbroad and underinclusive.

The Legislation is Overbroad

This is an easy argument to make.  The law is premised on safety - steep penalties to discourage people from engaging in mortally dangerous behaviour.

Yet so many of the charges are laid in connection with cell phone use at red lights.

This is, in some ways, a practical enforcement issue:  It's easier to identify people using cell phones when they're stationary.  But part of that is because people are justifiably less concerned about the safe operation of their vehicle when they're stopped at a red light, and will be more likely to stare down at their phone for several seconds.  (Driving instructors will tell you that this is still unsafe:  Even when stopped at a red light, you need to be cognizant of your surroundings, to be prepared to respond to hazards that arise against you.  Part of defensive driving.  But that's really not what we're talking about when discussing the deadly hazards of distracted driving.  Driving defensively can certainly save lives, but it's rather disingenuous to ever attribute a fatality to a failure to drive defensively.)

So the message the law sends is "Just put away the phone."  This, on its face, doesn't seem so unreasonable - almost elegant in its simplicity.  Yet it isn't limited to telecommunications functions, either.  Changing the track on your iPod while stopped at a red light is an offence - and not just a minor offence, but a $490-$1000 fine.  Arguably, this takes less attention than changing the radio station on a built-in stereo - which will generally be legal.

I understand and agree with the need to seriously address the issue of distracted driving, because it's a safety issue.  But, frankly, somebody momentarily using a phone at a red light is simply not a safety issue in the same way, and imposing the same hefty fines to the person changing the song on their iPod at a red light, as to the person sending an email on the 401, makes no sense to me.

That being said, if somebody is holding up traffic because they haven't noticed that the light is green, there probably are (or should be) other lesser charges to cover that scenario.  I also wouldn't necessarily object to a lower 'distracted driving' offence covering red light scenarios; my argument is ultimately that it's rather absurd to treat all 'distracted driving' scenarios the same way.

The Legislation Fails to Address Actual Distractions

Earlier this year, York Regional Police kicked off a 'no cellphone pledge' campaign with a press conference, where the Regional Chairperson indicated that, on his way to the conference, he saw "four people talking on their hand-held cell phones, a woman putting on makeup, a man tying his tie, and numerous drivers juggling their breakfasts."

Distracted driving is dangerous.  Nobody disputes that.  Yet we've imposed a serious fine for holding a cell phone in your hand, while not directly addressing other common distractions at all.  Tying your tie?  Applying makeup?  Shaving?  Eating?  Drinking?  Smoking?  Reading?  I recall an occasion taking the GO bus downtown, and looking over into the vehicle next to us on the Gardiner and seeing a woman engrossed in a report she was reading.  While driving.  I wasn't so surprised when Rob Ford was caught doing the same thing.

Fundamentally, we have a major problem of people not giving driving the attention it deserves and requires.  It's far bigger than just cell phones.

And far bigger than hand-held cell phones, particularly.

There are plenty of statistics to support the proposition that talking on your cell phone significantly increases the odds of a serious collision.  And the existing research suggests that it is basically irrelevant whether or not you're on hands free.  The distraction of a phone conversation while driving isn't the result of the phone in your hand; it's the mental effort you're putting into the conversation that you should be putting into driving.

I'll admit that I make 'hands-free' calls in my car from time to time.  I don't generally like to do so, mainly because I find I'm a terrible conversationalist while doing so.  When the road calls for my attention, I pay attention to the road, and often lose my train of thought or miss what the other person is saying.  It's a matter of prioritization, which it seems many people don't do.  (It has also struck me, too, that there's a big difference between calling somebody to give an ETA in good driving conditions, as opposed to carrying on a heated argument during a blizzard.  There are gradations of distractions.)

There's a problem on the road, yes.  But the existing legislative regimes focus too much on what the hands are doing and too little on what the brain is doing - by obsessing about handsets and not caring at all about actual mental distractions.

And I think we can all agree that ticketing somebody in a Tim Hortons' drive through does not even come close to addressing the dangers posed by distracted driving.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

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