Last updated: May 18, 2021

Disclaimer

This material is intended to help Radio Amateurs navigate the complexity of BC legislation and locate the resources necessary to make their own determination of the Distracted Driving law. This is not legal advice that can only be provided by legal professionals.

Delta ARS has been working closely with the Ministry of Public Safety and Solicitor General in drafting clarification to the RoadSafeBC guide on the “Use of Electronic Devices While Driving“. If anyone has received a ticket while operating amateur radio equipment we would like to hear about it (via the Contact Us page).

Quick Reference Guide

Over a number of court cases, meetings, email communication and discussion we have come to understand the Distracted Driving laws in BC and their application to Amateur Radio. Firstly, unlike other jurisdictions, there is no specific exception for operating amateur radio equipment in a vehicle in BC. The legislation treats all users of transceivers (including delivery drivers, search and rescue, amateur radio, etc.) identically. However, amateur radio operators are permitted the use of “hand microphones” under Section 9 of B.C. Reg. 308/2009:

A person may use a hand microphone while driving or operating a motor vehicle on a highway if

(a) the device is within easy reach of the driver’s seat, and

(b) is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not obstruct the person’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle

In addition, note that “hand microphones” are defined narrowly as follows:

“hand microphone” means a communication device consisting of a hand-held unit that

(a) is both receiver and microphone,

(b) is operated by a push and hold-to-talk function, and

(c) allows for oral communication, but not for the transmission and receipt of oral communication at the same time.

Further use is very broadly defined in the Motor Vehicle Act as follows:

“use”, in relation to an electronic device, means one or more of the following actions:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device’s functions;

(c) communicating orally by means of the device with another person or another device;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

B.C. Reg. 308/2009 adds a further very broad definition of use:

A person who watches the screen of an electronic device uses the device for the purposes of paragraph (d) of the definition of “use” in section 214.1 of the Act.

Several operators have received tickets and have been convicted of distracted driving while operating amateur radio equipment. Only one case has been appealed to the Supreme Court of BC (2021 BCSC 918) clarifying the confusion over the use of a microphone attached to a transceiver. 

[18] In his analysis, the justice overlooked the requirement in the definition of hand microphones in s. 3(2)(a) of the Regulation, that it must be “both receiver and microphone”. In the case of mounted two-way radios, the hand unit is just the microphone for the user and the receiver is the mounted radio unit to which is connected. Despite the fact that this microphone could be removed from its holder, Ms. Shelford explained in cross-examination that “[t]he radio [that is, the part that functions to receive and broadcast signals] was permanently attached”.

[19] This obvious application of the legislation makes it unnecessary to decide whether the document from RoadSafetyBC that Ms. Shelford provided can properly be referred to for interpretative purposes. It now becomes clear why that document purports to permit the use of two-way radios while driving – they are not “hand microphones” as the Regulation defines them.

[20] Accordingly, I conclude that the justice erred in his interpretation of the provisions, and that the appeal of that conviction must be allowed.

Notes

• The regulation only refers to the use of a “hand microphone” and does not suggest that operating the radio transceiver (adjusting the volume, changing the channel, tuning, etc.) is permitted. It seems that the “hand microphone” is the device that must be in easy reach and used.
• The only operation permitted is keying the transceiver via the microphone using the push-to-talk (PTT) button. Other functions on the microphone cannot be used.
• A multifunction microphone with DTMF buttons and/or function keys is problematic. It is better to use a simple microphone with only the PTT, but if a multifunction microphone is used then only the PTT can be operated.
• “Securely fixed” indicates the radio should be bolted or clipped to the vehicle or in a harness or clipped to a belt. Resting the radio on the console, in a cup holder or on the adjacent seat may not be considered secure.
• When using a handy-talky (a held-held transceiver) it must be attached to the vehicle or body and preferably used with a separate microphone. The regulations consider the handy-talky itself to be a microphone so the PTT can be operated directly, but it must remain attached to the vehicle or body and no other functions can be operated.
• Hands-free operation is not explicitly listed in the regulation which only defines the “hands-free telephone function”. It could be argued that hands-free operation is implied but this has not been tested in the courts.
• The “hand microphone” exception does not apply to “N” drivers.
• The RoadSafeBC guide on the Use of Electronic Devices While Driving attempts to clarify what is permitted and not permitted. However, while this might be used as an educational tool to the police or a judge in court, it does not carry the same weight in law as the regulation.

Background Discussion

Distracted driving laws have been with us in British Columbia since 2010. Amateur radio has long been recognized as a service used in emergencies going back to the Fraser River Flood of 1948 and resulting in the issue of amateur radio license plates so that operators can be easily identified. Two-way radio operation, including by amateur radio operators, is exempt from the distracted driving law under certain limitations. However, changes in 2014 have caused considerable confusion and resulted in the successful conviction of amateur radio operators. Many meetings followed at our radio club, people seeking clarification from the Government and a visit to our radio club from Delta Traffic Police to answer questions.

Amateur radio operation is a permitted exception in a vehicle under the distracted driving law within limitations. We are nevertheless required to operate the vehicle safely and during the presentation from Delta Traffic Police, we are advised that you could potentially be charged with driving without due care and attention if you are involved in an accident even when operating under the “hand microphone” exception.

Recently there has been considerable enforcement of the distracted driving laws and increased penalties. The regulations have been updated so that all electronic device use carries the same penalty, including the fine of $368 and 4 penalty points, effective June 1, 2016. As a result of the increased consequences, confusion over permitted use and the conviction of one of our members, Delta ARS initiated lobbying the Government of BC through Vicky Huntington VA7VJH, MLA Delta South, to update the RoadSafeBC guide. We later obtained the support of Radio Amateurs of Canada to this group. Following a year of discussion with the Ministry of Public Safety and Solicitor General, we succeeded in getting RoadSafeBC to publish V5 of the Use of Electronic Devices While Driving with a new section on Two-way Radios.

All stakeholders including police divisions in BC have reviewed and agreed to the content of the RoadSafeBC guide. However, we were also advised that not all traffic police a fully aware of the law and regulation. It might be necessary to provide education when stopped in order to avoid receiving a ticket or having to go to traffic court. This should be done in a constructive and non-confrontational manner. The following resources may be useful to help clarify the situation.

• The legislation is defined in the Motor Vehicle Act, Part 3.1 — Use of Electronic Devices while Driving.
• Further details to be defined in B.C. Reg. 308/2009, Use of Electronic Devices While Driving Regulations.
• The layman’s interpretation is described in the RoadSafeBC guide on Use of Electronic Devices While Driving, revised to V5 in February 2017.
• An appeal heard in the Supreme Court of BC, 2021 BCSC 918, on using a microphone connected to a transceiver.

There is ongoing monitoring of legislation in other provinces and the Government has indicated they expect to change the legislation in response to any of these changes and with technological advancement.

Readers may also be interested in the legislation of neighbouring provinces and states:

Driving in Alberta	Information on Alberta’s Distracted Driving law.
Driving in Washington	Using a wireless communications device while driving.
Driving in Oregon	Operating a vehicle while using a mobile communication device.

Conclusion

All of the changes to date have not altered the devices that are permitted and hand-held microphones of two-way amateur radios remain permitted. It is recommended that you carry copies of the above documents in your vehicle for education purposes along with a copy of your amateur radio certificate.

Acknowledgements

I would like to thank especially Vicki Huntington VA7VJH, MLA Delta South for her support in initiating our meeting with Hon. Mike Morris, Solicitor General & Minister of Public Safety, Sam MacLeod, Superintendent of Motor Vehicles and Hon. Naomi Yamamoto, Minister of State for Emergency Preparedness. We should also thank Jeremy Wood, Senior Policy Advisor at RoadSafetyBC and his colleagues who have worked tirelessly with us and other stakeholders over the last year to incorporate a new section on Two-way Radios into the guide.

This success would also not be possible without the support of Radio Amateurs of Canada. Bill Gipps, Director of RAC and  Section Manager of ARES for BC and Yukon Territories provided considerable support during this process.

Within Delta ARS Doug Barry VE7WLF, former President, Dave Miller VE7HR and Tom Robson VE7DID have all played roles in the project. While it is sad that Doug Barry VE7WLF who accompanied me to Victoria for our meeting with the Ministers is no longer with us, I believe he would be pleased with the result.

—
Chris Scholefield
VE7XH