“Speed traps” for the technology savvy

It is to their credit that many REALTOR® members are at the forefront of embracing new technologies to improve the services they provide to their clients. As they tap into this brave new world REALTOR® members should remember that for every new technology there is a law ready to catch the unwary.

Two recent quirky cases from Ontario illustrate this.

The facts in the first are straight-forward. In R. v. Kazemi , Ms. Kazemi claimed that she was driving home from work with her cell phone on the seat next to her. She braked at a red light and the phone dropped to the floor of the car whereupon she leaned over and picked it up. Unfortunately for her, it was at that moment that she was observed by a police officer and charged under section 78.1(1) of Ontario’s Highway Traffic Act for holding a hand-held wireless communication device.  Convicted and fined $200 the question that arose on appeal was whether the Highway Traffic Act required her to “hold” the phone for a longer period of time. Unfortunately for Ms. Kazemi, the Ontario Court of Appeal said no, noting that road safety “is best ensured by a complete prohibition on having a cell phone in one’s hand” while driving.

The second case, R. v. Pizzurro, is also straight-forward.  In Pizzurro, Mr. Pizzurro was observed by a police officer holding a cell phone and charged under the same provision of Ontario’s Highway Traffic Act as Ms. Kazemi. Mr. Pizzurro did not dispute he was holding a cell phone. However, he alleged that there was no evidence that he was using an operating cell phone (i.e. one was capable of receiving or transmitting telephone communications, electronic data, mail or text messages) and that this was required in order for him to violate the Act. Convicted at trial, Mr. Pizzurro’s argument was rejected by the Ontario Court of Appeal.  The court noted that the relevant section of the Highway Traffic Act captured two types of devices: cellphones and other devices set out in regulations. The requirement to prove that a device was capable of receiving or transmitting telephone communications, electronic data, mail or text messages only applied to the latter as it is well known that cellphones are capable of…well… working as a phone.

Taken together the result of these cases appears to be that in driving while holding a cellphone – even one that isn’t turned on and even if it is held for only the briefest of moments – is illegal in Ontario.

Neither Pizzurro nor Kazemi ostensibly involved a REALTOR® member. However they provide cautionary tales for an industry that places a premium on mobility and timely responses to client communication. Further, although these cases are specific to Ontario, REALTOR® members should keep in mind that all ten provinces in Canada and two of the three territories (not Nunavut) have some form of cell phone or distracted driving legislation. If telecommunication at all times is important to your business, now may just be the time to look up your jurisdiction’s laws… although not on your phone while driving.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Simon Parham, Legal Counsel, is always on hand to provide helpful advice to CREA, Boards, and Associations on all aspects of federal legislation that can be reduced to an acronym, including: PIPEDA; FINTRAC; and the DNCL. In his spare time, Simon enjoys running, camping, discovering the world with his daughter, and planning his “big year.”

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