Understanding Ontario’s HTA Section 78.1(1): Lessons from R. v. Kazemi and R. v. Pizzurro

Distracted driving remains one of the leading causes of collisions on Ontario roads. To combat this, the province enacted strict rules under the Highway Traffic Act (HTA). One of the most significant provisions is Section 78.1(1), which prohibits drivers from holding or using handheld communication devices while driving.

But what does this prohibition really mean? Two key Ontario Court of Appeal decisions—R. v. Kazemi (2013 ONCA 585) and R. v. Pizzurro (2013 ONCA 584)—clarify the scope of this law and establish the seriousness with which courts treat distracted driving.

What HTA Section 78.1(1) Says

Section 78.1(1) states:

“No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device.”

At first glance, one might assume this applies only when the phone is actively in use—such as texting or calling. However, Ontario’s highest court has made it clear that the prohibition is absolute.

R. v. Kazemi (2013 ONCA 585)

In Kazemi, the driver was observed holding a cell phone while driving. She argued that she was not actively using the device and therefore should not be guilty under the HTA.

The Ontario Court of Appeal rejected this defense. The court held that merely holding a cell phone, even for a brief moment, constitutes a violation of HTA Section 78.1(1). The reasoning was simple: holding the device distracts the driver and undermines road safety.

R. v. Pizzurro (2013 ONCA 584)

The Pizzurro case went a step further. Here, the defendant argued that the Crown should have to prove the phone was capable of receiving or transmitting communications at the time of the alleged offence.

Again, the Ontario Court of Appeal disagreed. The court ruled that the Crown does not need to prove functionality—even if the phone is dead, disabled, or out of service, simply holding it while driving breaches Section 78.1(1).

At paragraph 13, the court made the purpose of the law crystal clear:

“Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving.”

Why These Cases Matter

Together, Kazemi and Pizzurro close the door on technical defenses that drivers may try to raise. The courts have confirmed:

• Holding is enough – You don’t need to be texting, calling, or browsing.

• Functionality is irrelevant – A phone that’s off, broken, or out of battery still triggers the prohibition.

• Absolute prohibition – The goal is to eliminate the distraction entirely.

For drivers, the lesson is straightforward: if you’re behind the wheel, don’t hold your phone—ever. Use hands-free technology if necessary, or pull over safely before handling your device.

Consequences of Violating Section 78.1(1)

As of today, a conviction under Ontario’s distracted driving laws can result in:

• Fines ranging from $615 to $3,000 (depending on the offence and circumstances),

• Demerit points added to your driving record,

• License suspensions for repeat offenders.

These penalties reflect how seriously Ontario treats the risks of distracted driving.

Practical Tips to Avoid Distracted Driving

Staying on the right side of the law—and safe on the road—doesn’t have to be difficult.

Here are some practical tips:

• Use hands-free devices – Bluetooth headsets or car systems allow you to answer calls legally.

• Set up before driving – Enter your GPS destination, start your playlist, or adjust settings before hitting the road.

• Put your phone on “Do Not Disturb” – Many phones have driving modes that block notifications.

• Mount your device securely – If you use your phone for navigation, place it in a fixed mount rather than holding it.

• Pull over if necessary – If you absolutely need to text, call, or handle your device, find a safe place to stop first.

Final Thoughts

The decisions in Kazemi and Pizzurro underline that Ontario’s distracted driving laws are meant to promote maximum attentiveness and road safety. Section 78.1(1) is not about catching drivers who are texting or calling—it’s about ensuring that drivers keep their hands, eyes, and minds on the road.

The safest choice is also the simplest one: keep your phone out of your hands while driving.