An Ontario judge has overturned a $200 fine for using a cellphone while driving, ruling that holding a phone while the car is stopped at a light isn't the same as using it.



In an unusual case, Oshawa Children's Aid worker Khojasteh Kazemi was driving home when she was pulled over soon after getting off the Don Valley Parkway. Kazemi had taken the Gerrard Street East exit and was stopped at a light on River Street. She told a court that her cell phone had slipped off the passenger seat onto the floor and she waited until she was stopped at the light to pick it up. She didn’t intend to use it.



Kazemi was pulled over by a police constable and given a ticket for driving while holding or using a cellphone. The ticket was initially upheld by a Justice of the Peace, but Kazemi appealed to the Ontario Court of Justice.



Judge Shaun Nakatsuru who heard the case, noted that 'holding' and 'using' a cell phone are banned for good reason. Holding a phone means both hands are not on the wheel. It can also be a dangerous distraction, because there is a temptation to use it to look at incoming messages.



Related: Texting, talking while driving killed 16,000: Study



But the judge accepted Kazemi’s evidence that she did not intend to use the phone, based in part on her cell phone records which revealed no calls at the relevant time. He also ruled that touching a handheld device is not the same as holding it and reversed the conviction and $200 fine.



Sheryl Smolkin is a Toronto lawyer and writer. Contact her through her website and follow her on Twitter @SherylSmolkin.