Michael Dyck | Criminal Law

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MAJOR UPDATE: Cell Phones and Driving in Manitoba (August 2018)

Michael Dyck

Can you use cell phone while driving Manitoba? At this point, I think we all know that it is against the law that is set out in the Highway Traffic Act (HTA). But distracted driving law in Manitoba has changed recently, so it is time for quick review and then we'll cover the major update as well.

My first blog post about using a cell phone while driving was in May 2015 (click here for link). That post covered the basics like what does the law mean when it says a "hand held electronic device" and what is the legal definition of "using" one of these devices. There is also information about when and how you are able to use a cell phone legally if you are in your vehicle. Back then, the consequences were only a fine and 2 demerits.

My second blog post was in June 2016 (click here for link). The laws changed and the consequences now included 5 demerits. I also reviewed some of the comments from the original post and summarized the questions and answers.

In March and April of this year, there were many news articles about a new law being proposed by the provincial government, but the law was only being proposed at that time and it wasn't in effect yet.

Even though there have been no recent news articles about this issue, The Drivers and Vehicles Amendment and Highway Traffic Amendment Act (Bill 17) was passed into law on June 4, 2018 by the Manitoba Government. If you want to check for yourself, here is a link outlining when Manitoba bills became law in 2017-2018.

MAJOR UPDATE

As of June 4, 2018, the major update is that a police officer in Manitoba can take away your driver's licence if you are charged with a cell phone use ticket. The way it works is the officer seizes your licence and issues you a temporary licence so that you can drive yourself home (instead of the car being towed and impounded). After the temporary period ends, then it is against the law for you to drive for the next 3 days. If you get a second cell phone ticket and a second driving suspension, then it is a 7 day suspension.

How does the temporary licence work?

The temporary licence ends "at the end of the day following the day on which it is issued." So, if you are pulled over and given the ticket at 2pm on Monday, then the temporary licence lasts until Tuesday at 11:59pm. You add a full 24 hours and then go up to midnight on the following day.

When do I get my licence back?

You are required to give the police your physical driver's licence card. The police must return it to you "without delay" after the driving suspension ends. However, you are also required to pay a reinstatement charge with MPI. In some cases, if you are not issued a temporary licence (e.g. you didn't have a valid licence to begin with) and no one else is available to move the vehicle, then your vehicle has to be towed or impounded and you would also be required to pay those costs.

What are the other consequences?

There is still a fine of $203.80 and 5 demerits on your licence, which can really add up to big costs. For example, if your vehicle registration is $1,500 per year and you:

  • start at +5 merits and drop to 0, your licence and registration will cost an extra $1,090 over the next 5 years ($7,085 instead of $5,995)

  • start at 0 merits and drop to -5, your licence and registration will cost an extra $1,965 over the next 5 years ($9,050 instead of $7,085)

  • start at -5 merits and drop to -10, your licence and registration will cost an extra $2,300 over the next 5 years ($11,350 instead of $9,050)

When can the police start doing this?

Technically, the law is already in effect. But police forces like the RCMP and the Winnipeg Police Service need to make sure they have proper procedures in place to administer new laws like this one. New standardized forms for this type of driving prohibition also need to be created. There is no saying how long it will take each police force to be up to speed, it could be weeks or even months. There may be a larger announcement in the media once police officers in Manitoba start handing out these temporary driving prohibitions, but there's no guarantee of that. So you should assume that if you get a cell phone ticket in MB, you're going to lose your licence for 3 days.

What about mounting your phone on your dashboard?

Yes, you can do that but there are a lot of rules about how you can do it and how you can use your phone when it is mounted. The HTA allows an exception for using your cell phone in your vehicle that says:

  • the device (i) is a cellular telephone or another electronic device that includes a telephone function, and (ii) is configured and equipped to allow hands-free use as a telephone and is used in a hands-free manner

You have to be using an electronic device that can make and receive calls, so any cellphone with a SIM card would work. You cannot use other devices like an iPod touch or an iPad. The definition of "hands-free use" is found in one of the regulations of the HTA called the Cellular Telephones and Other Hand-Operated Electronic Devices Regulation and there are 4 parts that you have to follow perfectly or the exception will not apply:

  • (i) it is not held in the user's hand while it is used,

  • (ii) it is securely anchored to an interior surface of a vehicle, or held in a holder that is securely anchored to an interior surface of a vehicle, in a manner that does not interfere with the vehicle's safe operation,

  • (iii) it is within easy reach of the driver's seat, and

  • (iv) it is used and controlled exclusively by voice commands or, if it is touched during use, it is touched not more than once to initiate, accept or end a telephone call or to use or cease using a non-communication function of the device,

If you do mount a cell phone in your vehicle, it has to be within reach of the driver's seat and it shouldn't create a danger (like blocking the steering wheel or obstructing your view of the road). You can only use voice controls OR a single touch to accept/end a call OR a single touch to close or exit an app.

If you want to use your mounted phone for GPS or map directions, you should enter the address before you start driving and select "Start Directions" so you don't have to touch the phone again until you arrive at your destination.

If you want to use your mounted phone for making calls, you cannot browse through your contact list and select a person to call. You can only touch the phone once to accept an incoming call or to end a call. To me, it seems a lot easier to either use the built-in Bluetooth in your car or buy a Bluetooth headset (this is the one I bought years ago) and then use voice commands to make a call.

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About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

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