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March 2008


Use of a cellular phone while driving


 You probably saw in the medias that changes were brought to the Highway safety code recently. Amongst those changes, we note the prohibition to use a cell phone that is not hands free.

The relevant section of the Highway safety code is:

«439.1. No person may, while driving a road vehicle, use a hand-held device that includes a telephone function.

For the purposes of this section, a driver who is holding a hand-held device that includes a telephone function is presumed to be using the device.

This prohibition does not apply to drivers of emergency vehicles in the performance of their duties.»

At first sight, this section seems clear. However, one must determine what constitutes a «hand-held device that includes a telephone function». Does this really cover only cellular phones? We could not find in the Highway safety code any definition concerning the device.

We looked into the parliamentary debates and the debates of the Permanent commission on transport and environment, but could find no clarification. At the commission, discussions took place on the possible exclusion of CB type and other radio communication systems that do not comprise a keypad; those discussions appear not to have been retained by the legislator.

Indeed, section 439.1 uses very vague terms. In the interpretation of laws, if the Act is silent on a definition, we must apply the normal meaning that is found in dictionaries, encyclopaedias and in general usage. Consequently, a hand-held device that includes a telephone function would comprise, in our opinion, not only cellular phones, but also communication devices of the CB type, amateur radio devices, walkie-talkies and any other communication device using either a telephonic or radiotelephonic path, if such device must be hand-held when it is being used.

This provision is important for businesses that have a fleet of vehicles and that use such a means of telecommunication between its vehicles and its base of operation. 

Important: this provision comes into force on April 1st, 2008

March 2008

This bulletin is intended as a general information instrument and is not to be considered as a legal advice or opinion on any of the issues raised.