Distracted driving in Ontario
Distracted driving is the rare Ontario offence that suspends a licence on a first conviction, before any question of a bad record. The suspension is not discretionary.
About this work
Why does a distracted driving conviction carry points and a suspension?
Because section 78.1 is carved out of the rule that would otherwise stop it. Under O. Reg. 339/94 s. 3 (1), where the penalty imposed includes a period of licence suspension, no demerit points are recorded. Sections 78, 78.1 and 172 are the exceptions written into that rule.
So the ordinary trade does not apply here. On most charges a suspension displaces the points. On this one the driver takes the fine, the points and the suspension together, and the suspension is imposed by the Registrar on conviction rather than by the court as a sentence.
What a conviction carries
A fine, points and a suspension, all three
Section 78.1 of the Highway Traffic Act sets the fine range, and subsection (6.2) makes the suspension automatic on conviction. The demerit points come from O. Reg. 339/94 separately. All three follow the same conviction.
First conviction: $500 to $1,000 and three days
The fine range is set by section 78.1 (6.1) (a). The Registrar shall suspend the licence for three days under subsection (6.2) (a). Three demerit points are recorded under item 43 of the table to O. Reg. 339/94.
First subsequent: $500 to $2,000 and seven days
Subsection (6.1) (b) for the fine, (6.2) (b) for the seven day suspension. The points double to six, because O. Reg. 339/94 s. 2 (2) records six for a section 78 or 78.1 conviction committed less than five years after a previous one.
Second subsequent or more: $500 to $3,000 and 30 days
Subsection (6.1) (c) and (6.2) (c). The suspension is ten times the first one, and it is the consequence that tends to cost a job rather than the fine.
The five year window
Subsection (6.3) says an offence committed more than five years after a previous conviction under section 78 or 78.1 is not a subsequent offence. A conviction from six years ago does not escalate the next one.
The route
How does the process run?
5 stages, each with its own clock
The prohibition itself is narrower than it is usually described, and the exceptions are in the section rather than in practice. These are the four that decide most charges.
Holding is enough
HTA s. 78.1(1)Subsection (1) prohibits driving while holding or using a hand-held wireless communication device capable of receiving or transmitting telephone communications, electronic data, mail or text messages. Holding it is the offence. Nothing has to be sent, read or dialled.
Hands-free is allowed
HTA s. 78.1(3)Subsection (3) permits using the same device in hands-free mode. An amendment adding conditions about display screens has been passed but is not in force, so the current rule is the plain one.
Parked and stationary is not driving
HTA s. 78.1(6)Subsections (1) and (2) do not apply where all three conditions are met: the vehicle is off the roadway or lawfully parked on it, it is not in motion, and it is not impeding traffic. All three, not any of them.
Calling emergency services is exempt
HTA s. 78.1(5)Subsection (5) takes the use of a device to contact ambulance, police or fire emergency services outside subsection (1) entirely.
An owner cannot be convicted as owner
HTA s. 207(2)Section 207 (2) lists section 78.1 among the provisions an owner cannot be convicted under as owner. Where the owner was driving, the owner is charged as the driver.
Before the meeting
What to bring to the first meeting
5 things to bring
Bring what you have and say what is missing. A meeting with the papers in front of it settles in one sitting what two telephone calls will not.
- ✓The ticket, and the date by which you must respond
- ✓Whether the vehicle was moving, parked, or stopped in traffic
- ✓Whether the device was mounted, in a cradle, or in your hand
- ✓Any earlier conviction under section 78 or 78.1, and its date
- ✓Whether you hold a full licence or a G1, G2, M1 or M2
Our approach
A clear path forward
The same four steps on every matter, whether it is a refusal at the Federal Court or a ticket at the Provincial Offences court.
Book a consultationUnderstand
We take the full history and read the documents before offering an opinion. Most bad advice comes from acting on half the facts.
Assess
You get a candid read on strength, timeline and cost, including when the honest answer is that you do not need to hire anyone.
Act
We prepare the application, the defence or the appeal properly the first time, because fixing a weak record later is harder and dearer.
Report
You hear from us at each stage, and you hear what a wait actually means rather than a date chosen to sound better.
Reported decisions
What has this work produced?
7 allowed of 22 reported since 2023
Public judgments of the Federal Court with Kapil Rathod as counsel of record, each checkable by citation on the court's own site. The rest were dismissed and are listed with these ones.
Super visa, parents and grandparents
Sharifi v Canada (Citizenship and Immigration)
2026 FC 99Docket IMM-23381-24
Application allowedWork permit, Temporary Foreign Worker Program
Sing v Canada (Citizenship and Immigration)
2026 FC 105Docket IMM-18690-24
Application allowedTemporary resident visa
Rehman v Canada (Citizenship and Immigration)
2026 FC 805Docket IMM-20802-24
Application allowedPermanent residence, Express Entry
Goel v Canada (Citizenship and Immigration)
2025 FC 275Docket IMM-1797-24
Application allowedWork permit, job offer
Sharma v Canada (Citizenship and Immigration)
2024 FC 1928Docket IMM-6445-23
Application allowedStudy permit
Tandel v Canada (Citizenship and Immigration)
2024 FC 1487Docket IMM-3700-23
Application allowedTemporary resident visa
Gill v Canada (Citizenship and Immigration)
2024 FC 1453Docket IMM-10337-23
Application allowed
Where to go next
Distracted driving in Ontario carries a fine of $500 to $1,000, three demerit points and an automatic three day suspension on a first conviction, and the section is written so that the suspension does not displace the points.
Whether the device was held and whether the vehicle was in motion are the two facts the charge stands on.
Common questions
What do people ask about distracted driving?
7 answered here
Written to be read once and acted on rather than to be rung about. Each answer is complete where the law allows a complete answer.
What actually gets challenged
Whether the device was held, and whether the vehicle was in motion. Those are the two questions of fact the section turns on, and they are questions about a moment that an officer observed from outside the car.
Disclosure matters more than argument here. What the officer recorded at the time, what the notes say about where the hand was and where the vehicle was, and whether the three conditions in subsection (6) were met are all things the record either supports or does not.
What it does to a novice licence
Three points is inside the range that triggers a notice for a novice driver under O. Reg. 339/94 s. 15, and six points reaches the interview threshold in s. 16. Nine takes the licence under s. 17.
A novice driver with one prior conviction inside five years is therefore at six points from a single further charge, which is the interview threshold on its own. The escalation is quicker than it looks from the fine alone.
What is the fine for distracted driving in Ontario?
Section 78.1 (6.1) sets a range rather than a single figure: $500 to $1,000 on a first conviction, $500 to $2,000 on a first subsequent conviction, and $500 to $3,000 on a second subsequent or further conviction. The set fine printed on a ticket is the out of court amount and sits inside that range.
Is the licence suspension automatic?
Yes. Subsection (6.2) says the Registrar shall suspend the licence on conviction: three days for a first offence, seven for a first subsequent, and 30 for a second subsequent or further offence. It is not a sentencing decision and it does not depend on the driving record.
How many demerit points is distracted driving?
Three, under item 43 of the table to O. Reg. 339/94. It becomes six where the offence was committed less than five years after a previous conviction under section 78 or 78.1, under s. 2 (2) of that regulation.
Can I use my phone if I am stopped at a red light?
No. Subsection (6) requires the vehicle to be off the roadway or lawfully parked on it, not in motion, and not impeding traffic. A car stopped in a lane at a light meets the second condition and fails the first and third.
Does hands-free count?
Subsection (3) allows a device to be used in hands-free mode. An amendment adding conditions about what may be displayed on a screen has been passed but has not been proclaimed in force, so the current rule is the plain permission.
Speak to someone this week
Bring the ticket and the date you have to respond by. A distracted driving charge is worth reviewing before it is paid, because paying is a plea and the suspension follows conviction.