ONTARIO COURT OF JUSTICE
BETWEEN:
TORONTO (CITY) (Respondent)
— AND —
CHRISTOPHER LEWIS (Appellant)
DECISION REGARDING APPEAL OF CONVICTION
PROVINCIAL OFFENCES ACT
Before Justice Brock Jones
Heard on June 10, 2026
Written Reasons Provided on June 22, 2026
L. Presner……………………………………………………………………for the Appellant
K. Freitas.................................................................................................... for the Respondent
Jones J.:
Introduction
1Christopher Lewis appeals against his conviction by Justice of the Peace K. Valentine for one count of driving a motor vehicle on a highway while using a hand-held wireless communication device contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") section 78.1. He was sentenced to pay a $250 fine.1
2Mr. Lewis does not dispute that Justice Valentine made reasonable findings of fact, and that she applied the correct law. Rather, he submits that he should be acquitted on the basis of a “public interest defence”, as his employer required him to operate the device in question at the time. If his conviction were upheld, he asks me to consider that this would amount to a fundamentally unjust outcome.
3For the reasons that follow, I disagree. The appeal against conviction is dismissed.
The Findings of The Trial Court
4The findings of fact made by Justice Valentine are not in dispute nor challenged on appeal.
5Mr. Lewis was employed as a Wheel Trans operator for the Toronto Transit Commission (“TTC”). He was driving a motor vehicle southbound on Morningside Avenue on November 25, 2024. While on his way to his next scheduled pick-up call in Scarborough, he stopped at a red light while in the curb lane. There, he was observed by an officer using a black hand-held communication device, with his head tilted downwards. When the light turned green, his head was still looking downwards for a short period of time before he made a right turn onto Kingston Road.
6The officer conducted a motor vehicle stop. He did not require inspection of the handheld device in question before issuing the appellant a ticket. He never saw the device at this time.
7The appellant testified at his trial and admitted he was holding the device. However, the device was a Presto mobile payment machine. Passengers tap their Presto card on the device to pay their fare. The device cannot be used to make calls or send or receive text messages. He was waiting for the device to reboot when the traffic light turned green.
8The device itself bore the TTC trademark and the words “Presto Mobile Fare Transaction Processor”.2 The appellant testified that the device had a 4G wireless connection and received fare payments electronically from passengers in exchange for transportation services.
9Justice Valentine found as a fact that the appellant was driving a motor vehicle when the officer made his observations, and that the appellant was holding a wireless device as contemplated by this subsection. As a matter of law, she found that the offence was an absolute liability offence. The appellant did not fall within the subset of persons exempt from the application of the provision under the legislation or the applicable regulation.
The Applicable Law
10The applicable provisions of section 78.1 of the HTA include the following:
(1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.
(4) Subsection (1) does not apply to,
(a) the driver of an ambulance, fire department vehicle or police department vehicle;
(b) any other prescribed person or class of persons;
(c) a person holding or using a device prescribed for the purpose of this subsection; or
(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.
(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:
The motor vehicle is off the roadway or is lawfully parked on the roadway.
The motor vehicle is not in motion.
The motor vehicle is not impeding traffic.
11The Ontario Court of Appeal reviewed the essential elements of this offence in R. v. Kazemi, 2013 ONCA 585. In that case, the respondent was driving home from work, and while she was stopped at a stoplight, a police officer observed her holding a cellphone. The Court of Appeal determined that the meaning of “holding” for this subsection is "to have a grip on" or "to support in or with the hands": see para. 11. Nothing more, such as “sustained physical holding”, is required.
12The Court of Appeal held that the overarching objective of the HTA is to “protect those who use the roads of Ontario”. The Court stated the following at para. 14 of its decision with respect to HTA section 78.1(1) specifically:
Road safety is best ensured by a complete prohibition on having a cellphone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cellphone. It removes any temptation to use the cellphone while driving. And it prevents any possibility of the cellphone physically interfering with the driver's ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cellphone in his or her hand while driving.
13Section 78.1(4) exempts certain individuals from liability, such as the driver of an ambulance, a fire department vehicle, or a police department vehicle. A prescribed person or class of person may also be exempted. Ontario Regulation 366/09 provides for a list of prescribed persons as per HTA subsection 78.1(4)(b). The appellant concedes the regulation does not apply to him.
Analysis and Conclusion
14Section 138(1) of the Provincial Offences Act permits an appeal from a conviction where “in the opinion of the court, it is necessary to do so to satisfy the ends of justice”.
15Justice Valentine cited each of the applicable provisions of HTA section 78.1 and Ontario Regulation 366/09. She held they did not apply to the appellant. Her reasons are meticulous and thorough. The findings of fact that she made were reasonable and supported by the evidence presented at the trial. I do not find she committed any error of law.
16Mr. Presner’s position on this appeal is that I should read a public-interest defence into the legislation. According to his argument, the appellant was not morally wrong in accessing the device in his Wheel Trans bus, and the court should be concerned about permitting his conviction to stand. He was in the course of his employment duties and was required to use the device to provide a valuable public service.
17With the greatest of respect, and acknowledging the creativity of this argument, I cannot agree.
18To begin with, the appellant was not parked lawfully and was not picking up passengers at the time he committed the offence. He was stopped at a red light, and his attention was focused on the handheld device. When driving a car, a driver should be alert and attentive at all times to the roadway, other drivers, and any pedestrians in the area. When the light turned green, he was still focused on the handheld device, according to the evidence accepted by Justice Valentine. Nothing prevented him from parking his vehicle and lawfully operating the device safely: section 78.1(6). He chose to hold the device while driving. Being stopped at a red light does not excuse his conduct: see York (Regional Municipality) v. Cong, 2026 ONCJ 191, at para. 8; Lukic. v. R, 2021 SKQB 221, at paras. 64-5.
19It is a trite but important observation that driving is a privilege and that accidents can occur in a split second. As stated by the Court of Appeal, a driver’s “undivided attention” is demanded at all times to avoid the possibility of someone being harmed. Mr. Presner described to me other hypothetical scenarios that might arise in the future, which are perhaps not as straightforward as what happened to the appellant, and argued that they would result in unjust outcomes if this provision of the HTA were applied without an additional “public interest” defence. Without commenting on those hypotheticals, I must decide this appeal on the facts as found by the trial court and nothing more. Furthermore, even if I agreed with his larger argument, it is not my place, as a judge of the Ontario Court of Justice hearing this appeal, to effectively rewrite this provision of the HTA. That is a choice for the Provincial Legislature to make.
20Reasonable people can disagree about whether the exceptions contained within section 78.1 of the HTA should be expanded. The appellant, like any other citizen, can speak to his elected representatives if he so desires. What he cannot do is violate the law as written and then ask for an exemption because it suits his interests, however he wishes to characterize them.
21In rare cases, an accused person may also argue the defence of necessity, for example, if one required the use of a handheld device while driving to respond to a medical emergency: see Toronto (City) v. Russo, 2024 ONCJ 476, at paras. 94-9. The established law already provides flexibility in unusual circumstances.
22Finally, I note that no evidence was presented at the trial that the TTC “required” the appellant to operate the handheld device in this manner in these circumstances. While the appellant testified that the device was required for customers to pay their fare, and he asserted he was using it for an employment-related purpose, that does not mean it had to be operated by him at that particular moment. He was stopped at a red light, with no passengers entering or leaving the vehicle. Given that the appellant informed Justice Valentine that he would face disciplinary action from his employer as a result of his conviction, it is difficult to accept that the TTC would expect anything other than its employees to operate its vehicles lawfully at all times.
23Nor would such a demand, if established, amount to a defence at law regardless.
24The appeal against conviction is dismissed.
Released: June 22, 2026
Signed: Justice Brock Jones