A Vancouver lawyer is taking issue with an informational video shared on social media by the Insurance Corporation of British Columbia (ICBC).
The video, presented by a member of the ICBC Road Saftey department, claims that having your phone loose on the seat beside you is illegal, but criminal lawyer Kyla Lee says this is not an accurate representation of what the province's cellphone usage while driving law states.
"ICBC has, since the law was brought in, taken the position that the law prohibits more than it actually does," she tells V.I.A. in an emailed statement.
Lee explains that as a result of this misinformation, officers have been routinely issuing tickets to drivers for having a phone loose in the vehicle.
She says she knows that loose phones aren't against the law because in 2019, Lee challenged the decision and took it to BC Supreme Court.
In the case of R. v Partridge, 2019 BCSC 360 (CanLII), the Crown reportedly conceded that it is indeed lawful to have your phone in the cupholder or on the seat next to you so long as you are not using it.
"We asked for a reported judgment to try to make the law clear as a bell," says Lee. "To my dismay, the misinformation about what is and is not legal with a cell phone continues."
What does the law say about distracted driving?
"To be clear," explains Lee, "the law permits a phone to be loose in the vehicle. It also permits passive use such as charging the phone without holding or touching it. You can also play a podcast or music through the speakers of your car without mounting the phone." She cites an additional case of R. v Bleau, 2021 BCSC 13 (CanLII) that sets the precedent for this.
Lee concedes that the law may not be written clearly but suggests that "ICBC and government agencies spreading inaccurate information contrary to established court cases is simply not helping the lack of clarity at all."
Lee asserts that the confusion created for members of the public and police officers enforcing the law leads to more unlawful tickets being issued and has put the insurance agency on blast through social media.
When challenged by other members of the public, ICBC posted a follow-up tweet in response. "Thanks for weighing in," it states. "The video assumes a mobile device is in use. We should have made that clearer! The key point here is that it’s safer to have a mobile device safely stored in the glove compartment, in the centre console or securely mounted."
What does ICBC consider to be distracted driving?
In the caption of the video, ICBC links to an explainer on distracted driving wherein they write, "even if you're not using your phone, you may still be distracted."
The webpage breaks down fines for distracted driving and offers tips on how to (not) use a cellphone while on the road. It reads: "anything that takes your attention away from driving, like chatting with passengers, eating or drinking, or adjusting radio or vehicle settings, can contribute to distracted and inattentive driving."
However, further down the page, says that hands-free wired headsets, Bluetooth, or speakerphone may be used with one touch or voice commands.
Since this story was published ICBC has contacted V.I.A. with a statement saying, "our recent video post on Twitter is part of this month’s provincial distracted driving campaign. We should have made it clearer that the video assumes a mobile device is in use at the time. We’re updating the video to clarify that and we apologize for any confusion it caused."
@kylaleelawyer Really disappointed to see ICBC spreading misinformation on social media. You cannot hold your phone or have it on your lap but it is totally fine to put it on the seat beside you. #vancouver #bcpoli #bclaws #drivinglaw #driving #distracteddriving #icbc #dumpsterfire #lawyer #legaladvice #kylalee #fyp ♬ original sound - Kyla Lee
