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[ON] HTA 78.1(1) Use of cellphone while driving
My friends' sister got nabbed at a red light for using her cell phone. She's asked me if I could help walk her through the legal process. I can handle that. She ultimately just wants to tell the Crown that she never uses her phone while driving, but realized that her bluetooth wasn't on for a call she needed to make, so she was just turning it on. I haven't handled a cell phone ticket before, so I'm not sure what the traditional offer from the Crown is.
That being said, if there isn't an offer coming her way, or if it's nothing spectacular, I'm considering challenging two aspects of the law itself.
The law reads: "78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages."
What I find interesting about this is that nowhere in the HTA is the term "drive" defined. Further, the legislators opted to use the term "drive" rather than "care or control", which has a more clear legal definition (at least to me). This suggests to me that to "drive" a motor vehicle is a different act than having "care or control" of a motor vehicle. I would suggest that to "drive" a motor vehicle requires more than having "care or control" of a motor vehicle, and being stopped in a vehicle is more in line with having "care or control" than "driving" it.
Merriam Webster defines the verb "drive" to mean:
1) to direct the movement of a car, truck, etc. : to move in a specified manner or direction;
2) to travel in a car
I would think that the 2nd definition is inappropriate here, as no passenger is subject to this law. As for the 1st definition, it requires movement of the vehicle. In this instance, the vehicle was at rest, so I would argue that she was not "driving" the vehicle.
My second argument is related to subsection (5), which provides an exception: "Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services."
My question would be the ambiguity surrounding this. If it was her intention to contact emergency services, at what point is she using the device for that purpose? If she grabbed her phone to call in an emergency, but immediately after grabbing her phone, and typing in her password, the officer observed her and stopped her, does the exception apply? Technically, she hasn't used her phone to call the police/fire/etc as of this point. It is not until one dials 9-1-1 that they are contacting emergency services. Does this not require someone to momentarily break the law?
I realize this second argument likely has no practical value, but it should have some degree of merit theoretically.
Does anyone think either argument would be worth making? Or are they totally futile? I'm only asking because I might give them a try if she decides against fighting the ticket and will let me (i.e. if there is nothing to lose).