A  residential area at Kipling and Dixon roads in Toronto.

dandyhorse magazine, April 14, 2016

When a pedestrian or cyclist is killed or seriously injured, news media often focus on whether the motorist will be charged. It’s as if charges are supposed to assure the community that justice will be served and safety concerns addressed. Unless the charges are under the Criminal Code for offences like impaired driving, however, a paltry fine under the Highway Traffic Act (HTA) is often the only consequence for the driver. Such fines neither provide a semblance of justice for victims or their families nor send a strong message of condemnation that will deter other careless motorists. If media reports included a frank headline like, “Mother of two killed, driver likely to be fined $125” would we feel the same confidence that justice and safety have been addressed?
Advocating for protection

These concerns were the focus of a recent meeting by a coalition of advocacy groups (of which I am member) with the Minister of Transportation, Steven Del Duca. We urged the Minister to implement a Vulnerable Road User (VRU) law for cases where cyclists, pedestrians and persons with disabilities (or “vulnerable road users”) are killed or injured. A VRU law, based on laws already in place in various U.S. States, would include penalties such as licence suspensions, community service hours, driver safety courses and in some cases, jail time. The convicted motorist would also be obliged to attend court – instead of simply sending an agent – to hear the victim impact statement.

The VRU law would impose sentences that provide a sense of justice for victims and their families while sending a clear message to motorists that a higher level of care is required to protect vulnerable road users. In part, the law responds to the fact that vulnerable road users comprise an increasing proportion of road fatalities in urban centres across much of Canada and the United States. In Toronto over the last two years, cyclists and pedestrians represented 65% of all road deaths, compared to about 50% in 1990 and 1991.

A VRU Law, which could be implemented as an amendment to the HTA, would not apply where Criminal Code charges have been laid.

In the meeting with the Minister, we presented a chart by lawyer Patrick Brown that included the results of a dozen cases from his law practice over the last decade in which cyclists were killed or injured. (In a number of his other cases, charges were withdrawn or have not yet been adjudicated.) The fines ranged from a low of $60 to a high of $750 (in a road rage case). In two of the fatality cases, the motorist was fined $85.

(Since Brown’s list was prepared the fine for “dooring” (as well as distracted driving) has been increased. This change would have affected the monetary fine in only two of his injury cases.)

Although Brown’s chart constitutes a small sample size, our message was not that the HTA should simply be changed to include higher fines, but that fines alone are not an adequate response to obtain justice or deterrence. Instead, the legal regime must be revamped to include penalties that both recognize the grave consequences to a victim and his or her family and send a strong message of deterrence to prevent harm to others.
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VRU laws send a message

Section 130 of the HTA does have significant penalties for careless driving, with maximum penalties up to a $2,000 fine, six months in jail and a two-year licence suspension. Careless driving offences, however, are often resolved with guilty pleas by motorists to lesser offences like “leave road not in safety” or “unsafe turn.” These carry lower penalties. Negotiated pleas in careless driving cases are often desirable for prosecutors given the sometimes-difficult burden of proving “careless” conduct, especially when the key witness is dead.

It’s worth noting that a civil suit against the motorist, which often follows a fatality or major injury, is not likely to address the shortcomings of a prosecution under the HTA. Such suits are generally fought (and resolved) between insurance companies.

A VRU law is not the only solution to better road safety. It is part of a broader shift from car-centred attitudes that accept road deaths as a routine cost of our transport system to one where such deaths are treated as preventable tragedies. Vision Zero initiatives and lower speed limits, currently being debated or implemented in a variety of U.S. and Canadian cities, promote precisely this approach.

Although a VRU law may come into play only after a vulnerable road user has been killed or injured, it is the deterrence element – the message to other drivers delivered by a stern penalty on conviction – that is designed to spare others from harm and their families from enduring grief.

Although Minister Del Duca has yet to respond to our coalition, it’s clear that he and other political leaders are feeling the pressure to address road safety, particularly given the climate, congestion, and health benefits of active transportation. Excuses for inaction are increasingly implausible in light of available legal reforms like a VRU Law, as well as road design and operational improvements.

It’s also clear that politicians would much rather see a headline like, “Government applauded for making roads safer for cyclists and pedestrians” than more troubling alternatives.

Albert Koehl is a cycling advocate, founder of Bells on Bloor, and former government prosecutor.

The coalition, represented by Patrick Brown and Koehl, includes the United Senior Citizens, Walk Toronto, Cycle Toronto, Citizens Environment Alliance (Windsor), Toronto Bicycling Network, Hoof & Cycle, David Stark, Advocacy for Respect for Cyclists, Kids at Play and the Toronto Centre for Active Transportation.