Several people have sent me this story (though from various media outlets), and many have asked me if this type of ticket is legal in Ontario. 

For those that haven’t seen this story, quoting USA Today, “An 18-year-old said he was fined $580 for opening the McDonald’s app at a Canada drive-thru…”

The article continues, “Mason Prima pulled out his phone at a McDonald’s drive-thru in Saskatoon on Monday so he could redeem a free meal using points through the fast-food chain’s app, according to Canada station CTV News. Soon after, an officer on a motorcycle made their way to his window.”

It should be pointed out that the police are denying this fact scenario. It wouldn’t be the first time a police officer or service has lied to avoid bad press or culpability. 

USA Today, quoting Prima, “I’m barely even moving. I pull up my app and look at the rear-view mirror and there’s a motorcycle cop behind me,” Prima told CTV News. “I did think he was just going to let me go because I’m just trying to get a free meal, but no, turns out to be a very expensive lunch.“

Additionally, before I address this answer, I have no education, training, or experience regarding the laws governing motor vehicles in Saskatchewan. I want to be clear: This post shouldn’t be interpreted as legal advice or guidance. I am answering a hypothetical question in Ontario, not in Saskatchewan. 

The law in Ontario is clear. Assuming that the driver was in a private parking lot (McDonald’s) and not on a King’s highway, then no, this ticket would be invalid and would be withdrawn by the regional/provincial prosecutor. While some laws involving motor vehicles and private property are still enforceable (operating an M/V while impaired, a criminal code offence), the HTA only governs conduct on highways (all public roadways).

One important caveat is that the owner of that private property can establish rules for conduct on their property, so it’s not a free-for-all. However, it doesn’t seem that the franchise owner or any staff member noticed or cared that this driver was accessing his app in their drive-thru. 

The RCMP, an organization with an well-established malevolent history of systemic and institutional abuse and corruption, has responded to media inquiries, “The Royal Canadian Mounted Police in Saskatchewan dispute Prima’s version of the story saying the teen had violated the law before he reached the drive-thru.” 

The governing statute in Ontario that has established a prohibition on the use of handheld communication devices: Highway Traffic Act, RSO 1990, c H.8 specifically, s.78(1) Handheld devices prohibited – Wireless communication devices – “No person shall drive a motor vehicle on a highway while holding or using a handheld wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.”

From the Balasubramaniam decision quoting the Legislative Assembly, Official Report of the Debates (Hansard), 39th Parl., 1st Sess., (22 April 2009) (Hon. James Bradley): “Road safety is best ensured by a complete prohibition on having a cell phone 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 cell phone. It removes any temptation to use the cell phone while driving. And it prevents any possibility of the cell phone 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 cell phone in his or her hand while driving.“

Some, but not all of the essential elements that the prosecutor needs to establish, according to the Balasubramaniam decision, para 75: “Officer Eustace had testified to observing the defendant holding a hand-held communication device, he referred to as a “phone” in the defendant’s left hand and typing onto it with his right hand and then gazing at it while the commercial transport truck had been stopped for a red traffic light, southbound on Dixie Road at Midway Boulevard in the City of Brampton, which is the act of driving within the meaning of s. 78.1(1) of the HTA. Ergo, since Officer Eustace’s observation is credible and has not been contradicted, then this evidence is proof beyond a reasonable doubt that the defendant had been 1. driving on a highway while 2. holding and using a hand-held communication device.” [Emphasis added by me]

Notable cases in Ontario that have debated and settled the laws around the use of a handheld communication device on a highway include, but are not limited to: Ontario (Ministry of Transportation) v Balasubramaniam, 2017 ONCJ 643 & R v Kazemi, 2013 ONCA 585 (CanLII)

Several relevant cases have been before courts in Ontario, and I have only provided a few recent decisions. Please note that this was as accurate as it could be at the time of this publication. The law evolves, and based on our judicial system, higher courts can always review or revisit past decisions, resulting in new case law. 

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