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A driver talks on his phone while driving through downtown Toronto October 26, 2009.

Reuters

Ontario's top court says it's illegal to hold a cellphone while driving even if it's not transmitting and no matter how briefly it's in a driver's hand.

The Court of Appeal for Ontario released a pair of decisions Friday ordering two people convicted under the Highway Traffic Act for violating the ban on using cellphones while driving.

In one case, Khojasteh Kazemi argued that she had just picked up her cellphone, which had fallen off the seat to the floor of her car when she stopped at a red light, when a police officer spotted her holding it.

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A lower court judge dismissed Kazemi's charge, ruling that there must be some "sustained physical holding" in order to convict, but the Appeal Court overturned that finding.

In the other case, Hugo Pizzurro was caught driving with a cellphone in his hand but argued the Crown couldn't prove it was capable of sending or receiving at the time.

But the Appeal Court concluded the language in the law requiring a capability of sending or receiving applies only to devices other than cellphones as cellphones have that capability built in.

"Moreover, to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution," the court ruled.

"The legislature could not have intended that result."

The Ontario legislature's purpose in enacting the law was to ensure drivers focus "on one thing and one thing only: driving," the court wrote, quoting then-Transportation Minister Jim Bradley.

"Road safety is best ensured by a complete prohibition on having a cellphone in one's hand at all while driving," the Appeal Court wrote in the Kazemi decision.

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"A complete prohibition also best focuses a driver's undivided attention on driving ... 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."

The Appeal Court made similar comments in the Pizzurro case.

"To hold out the possibility that the driver may escape the prohibition because the cellphone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives," the court wrote.

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