R v Dagelman

R. v. Dagelman

2018 ONCJ 184
Ontario Court of Justice — Justice of the Peace S.-É. Bourbonnais | March 15, 2018

Background

Mathew Dagelman was charged under section 78.1(1) of the Highway Traffic Act for driving with a handheld communication device. Constable McGee of the Timmins Police Service observed Dagelman at the intersection of Gervais and King Streets in Timmins, stopped at a stop sign with his head down and both hands off the steering wheel, holding his cell phone at chest level.

Dagelman admitted he was holding his phone but argued he wasn't "driving" at the time. He testified that he was stopped for a minute or two, had put his truck in park mode, and was plugging his dead phone into its charger. The defense relied on R. v. McConnell, arguing that once a vehicle is in park, the driver is only in "care and control" — not driving — under the HTA.

Issues

1. Whether a driver stopped at a stop sign with their vehicle in park mode is "driving" under section 78.1(1) of the Highway Traffic Act
2. Whether the distinction between "driving" and "care and control" from Criminal Code jurisprudence applies to Highway Traffic Act offenses

The Meaning of "Driving" Under the HTA

Justice Bourbonnais rejected the defense argument and found that putting a vehicle in park mode while stopped at a stop sign still constitutes "driving" under the HTA. The court relied heavily on the Ontario Court of Appeal decision in York (Regional Municipality) v. Tassone, which dealt with a seatbelt charge where the driver had put his car in park at a red light.

The court applied a broad, purposive interpretation of "driving," noting that the HTA doesn't define the term. Using dictionary definitions and the Interpretation Act, the judge found that stopping is "a necessary and important part of the operation of a motor vehicle." The court emphasized that accidents and distractions can occur even when vehicles are stopped at traffic control devices.

Crucially, the judge distinguished between being "stopped" temporarily as part of driving (at a stop sign or red light) versus being "parked" in a position where the vehicle can be left unattended. A vehicle cannot be left unattended in a live traffic lane, even if the engine is in park mode. The court interpreted the prohibition as applying "from the time [the driver] puts the vehicle in motion on the highway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets out of the vehicle."

Key Takeaway

Putting your car in park while stopped at a stop sign or red light doesn't get you out of a distracted driving charge.

The courts interpret "driving" broadly under the Highway Traffic Act to include any time you're operating a vehicle on a highway, even during temporary stops. The Criminal Code distinction between driving and care/control doesn't apply to provincial traffic offenses.