Cellphone ticket


You are being charged under section 78.1(1) of the Highway Traffic Act.

Section 78.1(1) of the Highway Traffic Act reads:

  • 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.
So, the prosecutor must prove each of the following elements beyond a reasonable doubt:
  1. Your identity;
  2. That you were in fact driving;
  3. That you were driving a motor vehicle (motor vehicle is defined in the Highway Traffic Act);
  4. That you were driving on a highway (highway is defined in the Highway Traffic Act).

These four elements are almost always given and not worth challenging (as are usually found on the notice of offence).

However, the prosecutor must also prove:

  1. That you were holding or using a wireless communication device and;
  2. That the wireless communication device is capable of communication transmission.


Most police officers tend to stick to their notes when testifying. By reviewing your disclosure you can anticipate what the police officer is likely to say. You can also start developing your own theory of what happened. Study these notes carefully and frame the day you were pulled over into a story.

Review your disclosure and also think about the following:

  1. If the elements of the offence mentioned above can be proven;
  2. If there is a description of your phone and where it was;
  3. The location of where the police officer alleges he saw you holding you phone;
  4. The lane the police officer said you were in;
  5. If there is a mention of road and weather conditions (i.e. clear or rainy or sunny/dry or wet roads);
  6. If there is a mention of traffic conditions (i.e. busy or heavy traffic, light traffic);
  7. Were there any nearby vehicles that were similar?;
  8. Where was the police officer located when they saw you (i.e. what side of the road?);
  9. Is there an admission from you written in the police officer's notes that you were holding your phone? (i.e. did the police officer note that you told him you were holding your phone?);
  10. Think about the day you were pulled over. Are there any important details that you think the police officer missed in his/her notes?
  11. How detailed are the police officer's notes? (the more detail, the more convincing the police officer will likely sound at trial);