The driver said the phone slid off the seat when she braked. It hit the floor, she picked it up at the red light, and a police officer saw it in her hand. Ontario's Court of Appeal restored her conviction in R. v. Kazemi, 2013 ONCA 585.
That ruling answers the first question raised by any handheld device ticket in Ontario, which is whether a small moment counts. The second question is what the ticket costs, and the honest answer is that it depends on which conviction this would be. By the end of this article you should know two things: what the phone has to be doing for the charge to fit, and exactly what changes between a first, second and third conviction.
What the Phone Has to Be Doing for the Charge to Fit
Section 78.1 of the Highway Traffic Act prohibits driving a motor vehicle on a highway while "holding or using" a hand-held wireless communication device. Those are two different words, and either one can carry the charge. A related subsection covers hand-held entertainment devices whose main purpose has nothing to do with operating the vehicle. When I read one of these tickets, I break the charge into four pieces.
Holding: In the Hand Is Enough
In Kazemi, the appeal judge below had decided that holding meant some sustained physical holding. The Court of Appeal disagreed. It said the ordinary meaning of holding a cell phone is having it in your hand, and it described the goal as a complete prohibition. No call, text or open app is required, and there is no minimum number of seconds.
The same court added a second point on the same day. In R. v. Pizzurro, 2013 ONCA 584, it held that the Crown does not have to show that a cell phone held or used by a driver was capable of receiving or transmitting. The police do not need to seize the phone and test it. An argument built on a dead battery or a phone without service starts from that difficulty.
Using: The Hand Is Not the Whole Test
A phone can be out of the hand and still be in use. The Act allows a device to be used in hands-free mode, and O. Reg. 366/09 gives a specific exemption for pressing a button on a device to make, answer or end a call, as long as the device is secured so it does not move, can be seen at a quick glance and can be reached without shifting your driving position. A similar exemption covers a button on a headset or a clip-on device linked to the phone.
Look at how narrow that is. The exemption is for calls. Reading a message on a mounted phone with a thumb on the glass is a different activity, and Ontario's own guidance limits mounted devices to touching a button to make, answer or end a call. The statute does not define "using", so what the officer says the driver's hand was doing on that screen becomes a question of evidence.
The Device: It Still Has to Be a Phone
Pizzurro takes capability off the Crown's list, but the prosecution still has to prove beyond a reasonable doubt that the object was a device the section covers. That is where several Ontario decisions part ways on their facts. You can read summaries and the full decisions on our cell phone case law page.
- In R. v. Marujo, 2015 ONCJ 717, the officer had a clear view but could not recall the object's colour or features and was not fully sure of what it was. The evidence showed the driver was probably holding a phone, which was not enough, and the charge was dismissed.
- In R. v. Decuzzi, 2018 ONCJ 254, the officer could not point to a feature separating what he saw from an iPod. The court found the object was more likely a phone than not, and acquitted because that falls short of proof beyond a reasonable doubt.
- In R. v. Ngai, an October 2024 appeal decision from the Ontario Court of Justice in Newmarket, the officer saw a device resembling a cellphone, saw no phone after the stop, and gave no evidence about the device's nature or capabilities. The conviction was set aside.
- In R. v. Bada, 2018 ONCJ 563, the appeal went the other way. The officer described the driver holding a phone to his ear and appearing to talk, the court accepted that identification, and the conviction stood.
Read together, those cases say the quality of the officer's observation matters a great deal. They do not say a thin description wins. Each result turned on its own record.
Driving: A Red Light Does Not Pause the Rule
Being stopped in a live lane does not take a driver outside the section. In R. v. Dagelman, 2018 ONCJ 184, a driver at a stop sign put his truck in park to plug in a dead phone. The court, relying on the Court of Appeal's seatbelt reasoning in York (Regional Municipality) v. Tassone, held that the rule applies until the driver leaves the highway, parks where the vehicle can be left unattended, or gets out.
The Act's own carve-out is stricter than most people assume. It applies only when all three of these are true: the vehicle is off the roadway or lawfully parked on it, it is not in motion, and it is not impeding traffic.
The Exceptions That Do Exist
The Act exempts drivers of ambulances, fire department vehicles and police department vehicles, and it exempts using a device to contact emergency services. The regulation adds groups such as enforcement officers on duty and certain two-way radio users. Outside those lists, the common law defence of necessity has succeeded on unusual facts. In Toronto (City) v. Russo, 2024 ONCJ 476, it succeeded for a diabetic driver, stopped in a turn lane at a red light, who picked up his phone after a blood sugar alert from an app. That is a high bar and a narrow ruling, not a general medical exemption.
How Your Handheld Device Ticket in Ontario Climbs the Ladder
The next table is the ladder for a fully licensed driver. The fine and suspension columns come from section 78.1 of the Highway Traffic Act, the points and thresholds come from O. Reg. 339/94, the demerit point regulation, and both treat an offence as a repeat only if it was committed within five years of a previous conviction.
| Conviction | Fine range in the Act | Licence suspension | Demerit points | Running total if the offences fall within two years |
|---|---|---|---|---|
| First | $500 to $1,000 | 3 days | 3 | 3 |
| Second | $500 to $2,000 | 7 days | 6 | 9 |
| Third or later | $500 to $3,000 | 30 days | 6 | 15 |
The last column is the one the fine schedules never show you, because points count toward the regulation's thresholds when the offences fall within a two-year period. At 6 to 8 points a fully licensed driver gets a warning notice. At 9 to 14, the Registrar may require an interview to show why the licence should not be suspended. At 15 or more, the Registrar must suspend after giving notice, and a first suspension of that kind keeps the licence out for 30 days from surrender. The running total assumes each new offence came after the previous conviction, since the six-point step applies to an offence committed after one.
Now walk up the ladder. On the first rung, the conviction costs a short suspension and a small number of points. That makes it easy to treat as a nuisance.
The second rung is where the character of the charge changes. The points double, and if both offences fall inside the two-year window the running total lands in interview territory with those two offences alone. Add any other ticket in that period and the math moves faster. Our full points schedule lists what every other offence adds.
The third rung takes the conviction suspension to its longest length. If all three offences fall within two years, the running total also reaches the mandatory demerit suspension. The regulation makes demerit suspensions concurrent with the unexpired part of any other suspension, so the two periods overlap, but they are still two separate problems with their own paperwork.
Reading the Clock Correctly
Two different windows are at work, and people merge them. The lookback that decides which rung applies runs from the date of the earlier conviction to the date the new offence was committed. It does not run from ticket to ticket. The shorter window for accumulated points is measured between offence dates, because points are recorded as of the date the offence was committed.
The sources are also slightly different in scope. The points provision counts a previous conviction under section 78 (a display screen visible to the driver) or section 78.1. The fine and suspension subsections in section 78.1 speak of offences under "this section". When I work out a driver's rung, I pull the driving record and check both the section and the date of each prior conviction instead of relying on memory.
The Novice Ladder Is Shorter and Steeper
G1, G2, M1 and M2 drivers are on a different ladder. Under section 9 of O. Reg. 340/94, a section 78 or 78.1 conviction brings a 30-day suspension the first time and 90 days the second, and a third cancels the licence, with no step-up when a gap of over five years sits between convictions. Ontario's distracted driving page says novice drivers pay the same fines, and that a cancelled driver has to go through graduated licensing again.
Three details from the regulation are worth knowing. Other offences share the same ladder, including charges worth four or more demerit points and breaches of a novice licence condition, so a phone conviction can be someone's second rung even when it is their first phone charge. Two convictions from the same incident count as one. And only the order of the convictions matters, not the order of the offences. Different rules apply to someone who holds a novice licence in one class and a full licence in another, for example a G2 holder who also has a full M. Our guide to novice licence rules goes through the wider system.
Where the Fine Actually Lands
Look at the fine column again and you may assume the amount on the ticket climbs with each conviction. Ontario's distracted driving page lists a $615 out-of-court amount, including the victim surcharge and court fee, for a first, second and third conviction alike. On that schedule, the ladder is not mainly a fine ladder. It is a points and suspension ladder.
The higher ceilings depend on how the charge reaches court. Ontario's page lists them for drivers who receive a summons or who fight a ticket and lose. The Provincial Offences Act adds two numbers for a charge started by an ordinary offence notice: a defendant generally has 15 days after service to respond before being treated as not wishing to dispute it, and section 12 limits the fine in that kind of proceeding to $1,000 even where the offence provision allows more. Those higher ceilings matter most when a charge is started by summons under a different part of the Act.
The same Act explains why paying feels so final. Under section 8, once the court office accepts payment, that counts as a guilty plea, a conviction and the imposition of the set fine. Section 12 also preserves results under the Highway Traffic Act, and section 78.1 says the Registrar "shall" suspend. The Registrar does not weigh your reasons. A court does have room on the fine alone: section 59 allows a fine below a stated minimum where exceptional circumstances make the minimum unduly oppressive or otherwise not in the interests of justice.
What the Table Leaves Out
A few consequences sit outside the columns, and for many drivers they are the ones that matter.
- The suspension arrives by notice. Section 52 of the Highway Traffic Act lets notice of this kind of suspension be mailed to your latest address on the Ministry's record. Ontario's page also says a licence reinstatement fee applies each time. Driving during a suspension is a separate charge of its own, and an old address on file does nothing to help.
- Insurers see convictions. A conviction can affect how an insurer rates you at renewal, and repeat convictions generally look worse than one. How much differs by insurer and by your record, so I will not put a number on it.
- Work can be affected. Anyone who drives for a living has to think about a suspension of any length. Commercial drivers also have the carrier's record to consider. Our article on what a flat fee covers against a conviction sets costs like these side by side.
- Amendments are waiting to take effect. A 2026 statute (S.O. 2026, c. 7, Sched. 5) amends section 78.1 to add higher fines and longer suspensions when the offence is committed in a commercial motor vehicle, and to narrow hands-free use on devices showing entertainment or certain text and images. On the consolidation I checked in November 2026, those changes were marked not in force.
When It Is Not a Handheld Ticket at All
Ontario's page notes that distraction which endangers others can bring a careless driving charge, which is heavier and has no phone-specific ladder. Prosecutors approach that case differently, and I would start with our article on how phone evidence works in a careless driving case. Dangerous driving is a Criminal Code offence. We do not take Criminal Code charges, and anyone facing it needs a criminal lawyer. If someone used the word reckless, our article explains why reckless driving is not the name of the charge. If the word "record" is what worries you, our piece on whether careless driving is a criminal offence separates the different records from one another.
What I Look At on One of These Tickets
Nobody can tell you how a charge ends before the evidence is in, and no outcome is ever promised. What can be done is a methodical read. Our distracted driving work usually starts with these questions, in this order.
- Which subsection and which allegation? Wireless device or entertainment device, holding or using. The wording shapes what has to be proven.
- Which rung is really at stake? I check the record for prior convictions, the dates and the licence class, because this decides what a conviction would actually cost.
- What did the officer see, and from where? Distance, angle, lighting, the speed of both vehicles, how long the observation lasted, and whether the device was seen again after the stop. The disclosure is where those answers are.
- Was the vehicle being driven under this section? A live lane is one thing, while a lawful parking spot off the roadway is another.
- Does an exception or defence have an air of reality on these facts? Few do, and I would rather say so early.
- What are the routes forward? A trial, a meeting with the prosecutor where the ticket offers one, or a plea. For a fully licensed driver, a conviction under a section other than 78 or 78.1 would not add a rung to this ladder. For a G1, G2, M1 or M2 driver it can, if the offence is on the list in section 9 of O. Reg. 340/94. Whether any other charge is available depends on the prosecutor and the facts.
There is also a safeguard after conviction. O. Reg. 339/94 says that once notice of an appeal is served on the Registrar, the conviction and related points come off the record, and any resulting suspension is stayed, unless the conviction is sustained on appeal. An appeal has its own rules and its own costs, so that is a process to understand and not a shortcut.
Send Us a Photo of the Ticket Before You Decide
This article explains how the charge works; it is not advice about your ticket, because your rung and your facts are what count. We offer a free, no-obligation ticket review, and we quote one fee for the whole matter. Send a picture of your handheld ticket and we can go through where it sits on the ladder and what the evidence would have to show.
Frequently Asked Questions
My phone fell and I only picked it up. Does that count?
It can. In R. v. Kazemi, 2013 ONCA 585, the Court of Appeal for Ontario held that holding a phone means having it in your hand, with no minimum length of time. The driver there picked up a phone that had fallen to the floor while she was stopped at a red light, and her conviction was restored. The facts of each stop still have to be proven.
Does the five-year count start from my last ticket or my last conviction?
It runs from the earlier conviction, not the earlier ticket. Under section 78.1 of the Highway Traffic Act, an offence committed more than five years after a previous conviction is not treated as a subsequent offence for the fine and suspension. O. Reg. 339/94 uses a similar five-year measure for points, so the date of conviction and the date of the new offence are the two dates that matter.
Is a second phone ticket more expensive than the first one?
The out-of-court amount is not higher, but the consequences are. Ontario's distracted driving page lists $615 out of court for a first, second and third conviction. For a fully licensed driver, a second conviction within five years carries a 7-day suspension under the Highway Traffic Act and 6 demerit points under O. Reg. 339/94, compared with 3 days and 3 points the first time.
I have a G2. What happens on my first phone conviction?
A first conviction leads to a 30-day licence suspension under section 9 of O. Reg. 340/94. A second brings 90 days and a third cancels the licence, subject to a five-year limit between convictions and some exceptions for drivers fully licensed in another class. Ontario's distracted driving page says novice drivers pay the same fines as other drivers.
Can I touch my phone if it is sitting in a mount?
Only in a narrow way. Section 14 of O. Reg. 366/09 allows pressing a button to make, answer or end a call if the device is secured so it does not move, can be seen at a quick glance and can be reached without changing your driving position. Ontario's distracted driving page describes the same limit. Scrolling or typing on a mounted phone falls outside that exemption.
