Is 'holding' a cellphone the same as 'using' one?

A legislative committee in Saskatchewan is expected to recommend tightening the law that bans the use of hand-held cellphones while driving, after some legal challenges have exposed a difference between using a cellphone and holding one.

Legislation banning the use of hand-held cellphones while driving became law Jan. 1, 2010 in the province.

Now, MLA Darryl Hickie, who heads up the traffic safety committee, says there's a grey area in the legislation when it comes to the word "use."

'We're going to be recommending that you can no longer actually even hold the phone or electronic device.' —MLA Darryl Hickie

"The law clearly stipulates you can not use an electronic device or a hand-held device, but it's very moot on if you can actually hold the device and we're seeing court challenges to the definition of use versus hold," Hickie said Monday.

Hickie noted that one man successfully appealed a conviction by a Traffic Safety Court judge because of the word "use."

According to court documents, in April 2010, Saskatoon police officers said they saw a man driving while holding a cellphone up to his left ear.

Reginald Schafer argued he was moving his cellphone from his pants pocket to his shirt pocket, but denied that he was talking on it. Schafer was found guilty of using electronic communications equipment while driving and fined $230.

Schafer appealed and in March 2011, the Court of Queen's Bench quashed the conviction and ordered a new trial. Justice Martel Popescul said in the decision that handling a cellphone while driving is not prohibited.

"If the Saskatchewan legislature had intended to prohibit the mere handling of a cellular phone while driving, it could have easily done so as did the legislatures of British Columbia and Ontario," the judge wrote. "In Ontario, 'holding or using' a cellular device is an offence."

Hickie said the committee wants to close that loophole. 

"We're going to be recommending that you can no longer actually even hold the phone or electronic device," he said.

The all-party committee is looking for ways to reduce traffic-related deaths in Saskatchewan.

Officials have said 2012 was the deadliest year ever on provincial highways with 175 traffic deaths and Saskatchewan Government Insurance said the top two causes were distracted driving and drunk driving.

Recommendations in August

Hickie said the committee has heard from the public that authorities should be tougher on the hand-held device law. The committee will make its recommendations at the end of August, but Hickie said they already agree on the idea of tweaking the cellphone and driving legislation.

Hickie, a former police officer, said he's discouraged to still see people using hand-held cellphones while driving.

"People sometimes, I think, don't believe they're going to get caught or the law doesn't apply to them," he said. "If they're not texting in their laps, it's in their hand at their ear while they're driving, one hand on the wheel. It's very frustrating. I can be at any intersection, anywhere in my travels and I will find one person texting or one person on the phone," he added.