By Joel Zanatta
The Cycling Lawyer

On August 3, 2020, two cyclists were riding on the Sea to Sky Highway in British Columbia. A pickup truck carrying an unstable load of lumber rounded a corner. The load shifted and the stack of wood swung wide striking the cyclists from behind. One cyclist suffered multiple injuries, the other miraculously escaped unscathed physically. Without question, the psychological trauma of that near-death experience will affect them for life.

Police attended at the scene. The load was deemed unsafe. Tickets were written and the guilty motorist went back to life as usual while one of the cyclists suffered in a nearby hospital.

Given the degree of damage that the driver caused the cyclist, some sort of penalty aside from an infraction ticket should have been levied.

Most would agree that this situation unfolded unfairly.

Here is where the problem lies. In Canada, criminal acts fall under the Criminal Code. Most of the offences in the Criminal Code are defined by both the act itself and the intent to engage in the act. Simply put, it is a rare situation in which a “careless” or even “stupid” act is deemed criminal.

The majority of bicycle collisions involve careless motorists. The legal term that is applied to this carelessness is “negligence”. Negligence is the result of a “lack of thought” rather than an “intent” to do harm. To address negligent behaviour, our provinces have civil courts that allow the victim of negligence to right the wrong through the only thing available to them – financial compensation.

Unfortunately, in recent years, access to the provincial civil court system has been restricted.

In British Columbia for instance, there is an active push to eliminate the system of civil justice as it pertains to motor vehicle collisions. In its place, the government suggests a new “care” model under which citizens are no longer able to seek financial compensation through the court system. In exchange for giving up their right to sue, motorists have been told that they will receive cheaper automobile insurance. Unfortunately for cyclists, there is no advantage in return for this deal.

In devising this stripped-down system, the government recognized that certain collisions, such as those caused by criminal acts, are just so callous that victims should retain their right to sue. In these rare cases, a cyclist could go to court demanding compensation.

So, what does it take for an accident to be “criminal”? For example, what would happen if a motorist intentionally drove his car into a cyclist? On July 19, 2020, Alex Middleton was riding his bike in Calgary when an irate motorist intentionally crashed into him. In spite of the intent of the act, the police did not press criminal charges.

How about the situation where a motorist hits a cyclist and then flees the scene? On June 7, 2020, Arlin Ffrench was riding his bicycle in east Vancouver. A motorist ran a red light, striking Mr. Ffrench and kept going. By sheer luck, days later an anonymous caller reported the driver. The police found the motorist but elected not to charge him under the Criminal Code.

Cyclists are “vulnerable” road users that need to be protected.

Why would those in power strip our rights while failing to enforce laws created to protect us.

Cyclists must demand accountability. Join your local cycling advocacy group. Write letters to your MLA demanding legislative change and improvement in cycling infrastructure. Push to ensure that the health and safety of cyclists are not compromised so that the motoring public can save a few dollars. Everything that we do today could save the life of a cyclist tomorrow.

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