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Distracted driving, when the government doesn’t know the law

There is the letter of the law, the understanding of the law and the application of the law. One generally assumes that there is someone in government with a good understanding of the letter of the law but as we have recently seen in BC, that’s not necessarily the case.

The British Columbia government tells us that March is distracted driving awareness month. Their intention is to create awareness about the danger of using hand-held electronics while driving and to educate and remind drivers that there are significant penalties if you violate the law. To this end ICBC, our government-run car insurance company, created some ads that they ran on social media. They contained information about what is prohibited under the law. The problem, however, is that some of their information was simply wrong. And they were called out for it.

The prohibition generally is against using and holding electronic devices. Often we know exactly what this looks like. For example, we’ve all see the driver holding their phone like a slice of pizza as they make a call on speaker. Or there is the driver who picks up their phone at an intersection to read and quickly reply to a text. These acts are obvious contraventions of the law.

Historically we’ve seen drivers issued tickets for some acts that really don’t seem like they should be prohibited such as having your phone in a cup holder or on the seat beside you. It always seems unlikely that it was the intention of those who wrote the law to prohibit having your phone nearby, particularly because you can use your phone in an emergency situation.

Over the years, the letter of the law was made more understandable by court decisions. Now we know, for example, that simply having your phone charging on your passenger seat isn’t in fact a prohibited act.

ICBC digs their own hole

Which brings us to ICBC. In the public-service ad they released for distracted driving awareness month, they claimed that it is an offence in BC to have your phone on the seat beside you. Just to be clear, it is not. As well, it was never the intention of the framers of the law to prohibit having your phone sitting somewhere such as the passenger seat.

In the 2019 BC Supreme Court case of Partridge, one of our BC Driving Lawyers argued that the law did not make it an offence to have your phone sitting on your passenger seat. The Court agreed and overturned the traffic-court conviction. On this point at least, the law has been clear for several years.

When she saw the ad, our lawyer posted about it on social media and ICBC had to issue a retraction and then a revised ad. ICBC has been on the hot seat for a few days now. They were telling people it was an offence to have your phone on your passenger seat and that was obviously wrong to all of us who practise in this area of law.

So why did ICBC get it so wrong?

Laws are confusing. When it comes to the operation of your vehicle on the road, the law is written by the legislature and then interpreted by the court. Often when laws are written, the government has one thing in mind, and then those tasked to oversee the application of the law

 have something else in mind. The prohibition on the use of portable electronic devices is the perfect example of this. ICBC and the police misunderstood how the law should be applied.

Worrisome is despite court cases clarifying the law, ICBC never bothered to keep themselves informed of the state of the law. Interestingly, we note the police are generally better informed than ICBC in this regard.

Now the driving public are more confused than ever.

On the CKNW Mike Smyth show on March 8, a caller phoned in to say the court considered the Partridge case in his trial and he was nevertheless convicted. In the call, it also came out that the driver touched his phone while on passenger seat.

Touching the phone in these circumstances constitutes the offence and the BC Driving Lawyer who was Mike’s guest explained that it sounded like a proper application of the law.

Clearly there is a great deal of confusion regarding electronic device tickets in BC. Although the government wrote the law, the main government agency that deals with driving law didn’t understand what constitutes an offence.

If you’ve been issued an electronic device / cell phone ticket, don’t try and guess whether your interpretation of the law is better than the police officer who issued you a ticket.

Give us a call. We’re the BC Driving Lawyers and we work every day for our clients defending traffic tickets.