Is it time for British Columbia to overhaul its distracted driving legislation for greater clarity?
It’s a call some advocates are making in the wake last week’s Lower Mainland distracted driving enforcement blitz — and a slip-up by the province’s own public insurer in a safety video explaining exactly what is and isn’t legal when on the road.
ICBC was forced to delete the video and apologize, after erroneously suggesting that it was against the law to have a mobile phone sitting in a vehicle’s passenger seat. In reality, it is legal to have your phone in the passenger seat or elsewhere in the vehicle so long as you aren’t using it.
“It’s long overdue, simply because it’s not written clear enough,” said Grant Gottgetreau, a former police officer and forensic consultant for traffic offences. “(When) it was initially written, the intent was so you didn’t have your phone in your hand while you were talking or your phone in your hand while you were texting.
“It morphed from there to being simply in your lap or your cupholder or the seat — even if it wasn’t plugged in, even if it wasn’t on, that was sufficient to get not only a ticket but conviction in court, and that was not the intent of the legislation when it came in.”
B.C. first introduced its distracted driving legislation in 2009 as a $167 fine.
Since then, it has evolved to a $368 fine and four driver penalty points.
It’s also been challenged numerous times in court, including over clarity issues — such as the 2019 R. vs. Partridge case, which overturned a distracted driving conviction and settled the cellphone in the passenger seat issue.
But those changes in the law don’t always make it to the front lines, whether it’s ICBC or police, according to Vancouver lawyer Kyla Lee.
“Every step of this is muddled. The police officers aren’t trained on new decisions when they come out, so often if there is a B.C. Supreme Court judgment that says this one thing police officers have been ticketing for is not actually part of the offence, we have to go to court repeatedly, show the decision to multiple officers before the message finally gets out there,” she said.
“We even see police officers as recently as last week still misstating the law that is more than three years old.”
Lee believes its time for the province to start from scratch and write a new update to the province’s Motor Vehicle Act that clearly defines what is considered an electronic device, as well as exactly what drivers are and are not permitted to do with them.
She’s even penned her own version of a re-write and posted it on her website, half-jokingly offering it up to the provincial government as a draft.
“Right now the way the Motor Vehicle Act is drafted is some things are prohibited in the legislation, some things are prohibited by regulation, some things are allowed by regulation for certain types of drivers, and there’s too many places a person has to look to understand it all,” she said.
According to ICBC, distracted driving is a factor in 40 per cent of police-reported car crash injuries, and contributes to an average of 77 deaths per year.
The public insurer says police in B.C. have handed out more than 140,000 distracted driving tickets since 2018.
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