Ontario · Highway Traffic Act, s.78.1 (Ontario)
Distracted Driving in Ontario
A hand-held device charge under s.78.1 of the Highway Traffic Act. Unusually harsh for a Part I ticket: on top of a fine starting at $500 and 3 demerit points, a conviction carries an automatic licence suspension from the very first offence.
Tell us what you're facing.
What is distracted driving?
Section 78.1 of the Highway Traffic Act makes it an offence to drive on a highway while holding or using a hand-held wireless communication device, or a hand-held electronic entertainment device, capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
The wording matters more than most drivers expect. The offence is holding the device — the prosecution does not need to prove you were talking, texting or reading anything. Officers routinely lay the charge on the basis of seeing a phone in a driver's hand at a red light, because a vehicle stopped in a lane of traffic is still being driven for the purposes of the section.
What is not caught: a device mounted in a cradle and operated by voice or a single touch, a device used to call 911, and a driver who has pulled off the roadway and is lawfully parked. Those distinctions are frequently where a defence lives.
Distracted driving is a Part I offence — you receive a ticket rather than a summons — but it does not behave like an ordinary ticket. Because a conviction triggers an automatic suspension, paying the set fine is a far more consequential decision than it looks.
Two numbers get quoted for this ticket and they are not the same thing. The statutory range under s.78.1(6.1) starts at $500 on a first offence. The $615 figure widely quoted is the set fine — the total payable out of court once the victim fine surcharge and court costs are added. If the matter goes before a justice, the range that applies is the statutory one.
Changes are coming for commercial drivers. Amendments passed in 2026 (2026, c. 7, Sched. 5, s. 15) add a separate, higher tier where the offence is committed by means of a commercial motor vehicle — fines of $1,000–$2,000 rising to $1,000–$6,000, and suspensions of 7, 14 and 60 days. They also narrow the hands-free exemption so that a device with a display screen showing entertainment or text is no longer permitted. These provisions come into force on a day to be named by the Lieutenant Governor in Council and are not yet in force.
Penalties
| Tier | Fine | Demerit points | Licence suspension | Jail | Procedure |
|---|---|---|---|---|---|
| First offence — s.78.1(6.1)(a) | $500 – $1,000 (set fine $615 if paid out of court) | 3 | 3 days | None | Part I ticket |
| First subsequent offence — s.78.1(6.1)(b) | $500 – $2,000 | 3 | 7 days | None | Part I ticket |
| Second or additional subsequent — s.78.1(6.1)(c) | $500 – $3,000 | 3 | 30 days | None | Part I ticket |
| Novice driver (G1/G2/M1/M2) | Same fines as above | None — escalating suspensions instead | 30 days (1st), 90 days (2nd), licence cancelled (3rd) | None | Part I ticket |
Insurance impact
Insurers treat distracted driving as a minor conviction on a first offence, but it is one of the most heavily weighted minors — many carriers surcharge it closer to a major. A second conviction inside three years commonly costs a driver their preferred rate entirely, and the escalating suspensions make renewal harder still.
Licence & record impact
Three demerit points attach to the conviction. The points come off two years after the date of the offence; the conviction itself stays on your driving abstract for three years, which is the record insurers price from. The suspension is separate from the points and is imposed by the court on conviction — it is not something the Ministry applies later, and it starts from the first offence.
How this charge is defended
The first step on any s.78.1 file is disclosure: the officer's notes, the vantage point from which the observation was made, how long the device was observed, and whether the officer can distinguish a phone from a wallet, a coffee cup, or a mounted device at that distance and speed.
The practical defences that carry weight are:
- Identification of the object. A brief glimpse from a passing cruiser is a weaker evidentiary base than continuous observation from a stationary position.
- The device was mounted, not held. Section 78.1 permits a device secured in a cradle. Photographs of your vehicle's setup can be decisive.
- The vehicle was not on a highway. Private property and lawfully parked vehicles fall outside the section.
- Emergency use. Calling 911 is expressly permitted.
Where the evidence is strong, the objective shifts. Because the suspension attaches to a s.78.1 conviction specifically, an Early Resolution reduction to a different offence — one that carries no suspension, and in some cases no demerit points — can be worth substantially more to a driver than a reduced fine on the original charge. That trade is the single most important thing to understand about defending this ticket.
For the suspension tiers in detail — when they start, the five-year reset, and why there is no work exemption — see hand-held device suspensions in Ontario.
Novice drivers should treat the charge as urgent. Under the escalating sanctions for G1, G2, M1 and M2 licence holders, a conviction can cost the licence outright rather than adding points to it.
Where we appear
We defend this charge at Provincial Offences courts across Ontario. Your matter is heard where the ticket was issued, not where you live.
Distracted Driving — common questions
Can I be charged for holding my phone at a red light?
Yes. A vehicle stopped at a light is still being driven for the purposes of s.78.1 — you have not left the roadway and you are in care and control. This is one of the most common ways the charge is laid. The exception is a vehicle lawfully parked off the roadway.
Does a distracted driving conviction suspend my licence?
Yes, from the very first conviction. That is what makes s.78.1 unusual among Part I tickets: a first conviction carries a 3-day suspension, a second 7 days, and a third or subsequent 30 days, on top of the fine and 3 demerit points. Paying the ticket accepts the suspension.
Is using a phone in a mounted holder legal in Ontario?
A device secured in a cradle or mount, operated hands-free, is not caught by s.78.1. The offence is holding or using a hand-held device. If your phone was mounted and the officer believed otherwise, photographs of your vehicle's setup are useful evidence.
What happens to a G1 or G2 driver charged with distracted driving?
Novice drivers face the same fines but no demerit points. Instead the sanctions hit the licence directly: 30 days for a first conviction, 90 days for a second, and cancellation of the novice licence for a third. For a novice driver this charge is materially more serious than it is for a fully licensed driver.
Can a distracted driving ticket be reduced?
Often, yes — and the reduction that matters is not always a lower fine. Because the suspension attaches specifically to a s.78.1 conviction, resolving the matter to a different offence that carries no suspension can be worth far more than a discount on the original charge. Whether that is available depends on the disclosure and the prosecutor.