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      Opinion

      Cycling and the Law



      Introduction

      This summer’s publicized incident captured on video involving an Ottawa cyclist and a police officer has renewed discussion about cyclists and their rights on roadways in Ontario. On Wednesday November 27th, 2013 I attended a forum on cycling, the law, and your rights in an accident. Presenters included a member of the Ottawa Police Services, a tort lawyer, and representatives of the insurance industry. This article confines itself to issues concerning cyclists and local traffic laws since the forum didn't fully answer all questions concerning police interpretation of certain traffic law against cyclists.

      Traffic laws depend on jurisdiction

      Except for roads and highways under federal jurisdiction or on private property, provincial governments have the authority to legislate traffic law. In exercising this authority a province delegates limited additional responsibility for local laws to municipalities (eg, placement of signage, parking regulations, etc). The Federal government writes it's own laws. Generally it does this by adopting the laws of the province and municipality in which its property is located and then by layering its own regulations on top.

      In the case of Ottawa, the National Capital Commission has jurisdiction over parkways, for example, Colonel By Drive, Queen Elizabeth Drive, and those along the Ottawa River. (It also has jurisdiction over the Gatineau Park in Quebec.) It explains why on these roads only, groups of cyclists are required to ride single file and are patroled by the RCMP not by Ottawa Police.

      Traffic law at the various levels can be accessed via the website of The Vehicular Cyclist

      A cyclist is a driver of a vehicle

      It should be noted that in Ontario’s HTA and in Ottawa's bylaw the definition of a vehicle includes a bicycle. As such, a cyclist is a driver of a vehicle with, unless stated otherwise, the same rights and responibilities as a driver of a motor vehicle.

      Ontario law treats a cyclist as a road user equal to a motorist and provides them with certain advantages (for example, if cyclists were not exempt from the tailgating regulation, group riding as we know it would be illegal). This differs with traffic law in some other provinces. BC and Quebec for example do not recognize a bicycle as a vehicle. These provinces place cyclists in a separate category and subject them to additional, and sometimes onerous, requirements.

      Impeding traffic

      The police officer in the video (PO-V) said the cyclist was impeding traffic by riding in the centre of the lane and appeared to write a ticket for such (under which section remains unconfirmed). The police officer presenting at the forum (PO-F) mentioned that cyclists riding in a group could put themselves in a situation where they would be subject to the requirements of the section on “impeding traffic”. A visual scan of both the HTA and Ottawa’s traffic bylaw produced only the following,

      132. (1) No motor vehicle shall be driven on a highway at such a slow rate of speed as to impede or block the normal and reasonable movement of traffic thereon except when the slow rate of speed is necessary for safe operation having regard to all the circumstances.

      It is clear that this section was written specifically to exclude bicycles and other human powered vehicles whose rate of speed is obviously limited to less than that of motorized vehicles.

      Requirement to yield to bus from bus bay

      The PO-F said that drivers must yield to a bus when it pulls away from a bus stop. This is true but limited to a bus stop at a bus bay, viz,

      142.1 (1) Every driver of a vehicle in the lane of traffic adjacent to a bus bay shall yield the right of way to the driver of a bus who has indicated his or her intention, as prescribed, to re-enter that lane from the bus bay.

      Bus not to signal until ready
      (2) The driver of a bus shall not indicate his or her intention to re-enter the lane of traffic adjacent to a bus bay until the driver is ready to re-enter traffic.

      When bus must wait
      (3) No driver of a bus shall re-enter the lane of traffic adjacent to a bus bay and move into the path of a vehicle or street car if the vehicle or street car is so close that it is impractical for the driver to yield the right of way.

      Slow vehicles to travel on right side

      Critical to the discussion with the police officer in the video is whether a cyclist is allowed to “take the lane” that is, allowed to ride near to, or at, the centre of the lane. On this subject, the HTA states,

      147. (1) Any vehicle travelling upon a roadway at less than the normal speed of traffic at that time and place shall, where practicable, be driven in the right-hand lane then available for traffic OR as close as practicable to the right hand curb or edge of the roadway.
      Exception
      (2) Subsection (1) does not apply to a driver of a,
      (a) vehicle while overtaking and passing another vehicle proceeding in the same direction;
      (b) vehicle while preparing for a left turn at an intersection or into a private road or driveway;

      The equivalent section of the City bylaw is almost the same except it applies to a bicycle instead of a slow moving vehicle

      96. (1) A person driving a bicycle upon a roadway shall:
      (a) where practicable, drive in the right-hand lane then available for traffic OR as close as practicable to the right hand curb or edge of the roadway, except where the lane nearest the right-hand side of the roadway is a reserved bus lane;

      Note that I have capitalized and bolded the word “or” in both. As can be seen in the video, the incident occurred on a two lane road (Coventry Rd). Since the cyclist was riding in the right-hand lane then available for traffic he complied with both laws. In addition because of broken pavement, he was riding where it was practicable to ride and thus again satisfied the requirements of both laws. He was also travelling at the speed of the truck ahead of him so under the HTA he was not the driver of a slow moving vehicle. As for the second option following the word "or", only on an unlaned road (ie one with no lane lines) must bicycles or slow moving vehicles comply with the "close-as-practicable-to-the-edge ..." requirement.

      On laned roads, cyclists must use good judgement on which part of a lane they should use. Just because you may ride the centre of a lane doesn't mean you have to, and the needs of other road users should be considered. The video shows however that the cyclist for his own safety alone was justified in "taking the lane".

      Passing another vehicle

      The PO-F talked about the HTA's requirements for cyclists when passing on the right. The cited section however applies to motor vehicles only.

      150. (1) The driver of a motor vehicle may overtake and pass to the right of another vehicle only where the movement can be made in safety and,
      (a) the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn;
      (b) is made on a highway with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction; or
      (c) is made on a highway designated for the use of one-way traffic only.

      Despite the implied exemption, the HTA requires that overtaking be done to the left,

      148 (5) Vehicles or equestrians overtaking others
      Every person in charge of a vehicle or on horseback on a highway who is overtaking another vehicle or equestrian shall turn out to the left so far as may be necessary to avoid a collision with the vehicle or equestrian overtaken ...

      Cyclists need to be aware that passing to the right significantly raises the risk of collision. At intersections and driveways it could be deadly since a cyclist enters the blind spot of motorists who could be about to turn right. Should an accident occur, damage claims by a cyclist not complying with the law might be reduced or refused.

      Driving off roadway prohibited

      Likewise driving on the shoulder requirements apply to motorists only.

      (2) No driver of a motor vehicle shall overtake and pass another vehicle by driving off the roadway.
      Non-application of subs. (2)
      (3) Subsection (2) does not apply to,
      (a) a motor vehicle overtaking and passing to the right of another vehicle where the shoulder to the right of the roadway is paved and the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn;

      Cyclist to identify oneself

      A cyclist is required only to give one’s name and address (and not date of birth as stated by the PO-F) if stopped by a police officer for violating the HTA.

      218. (1) A police officer who finds any person contravening this Act or any municipal by-law regulating traffic while in charge of a bicycle may require that person to stop and to provide identification of himself or herself.
      (2) Every person who is required to stop, by a police officer acting under subsection (1), shall stop and identify himself or herself to the police officer.
      (3) For the purposes of this section, giving one’s correct name and address is sufficient identification.

      In the video, the cyclist identified himself by handing over his driver licence to the officer. This is not required and I recommend you never do this. Giving your licence means you risk getting demerit points against your driver’s licence in error. The computer system has been known to fail to differentiate between a cyclist and the driver of a motor vehicle, and it is a cumbersome process to get demerit points removed from your record.

      Demerit point system
      56. (1) The Lieutenant Governor in Council may make regulations providing for a demerit point system for drivers of motor vehicles

      Sidewalk cycling prohibited

      The PO-F stated emphatically that the HTA prohibited sidewalk cycling. I scanned the HTA thoroughly twice but could find nothing on sidewalk cycling. If I missed something perhaps someone would enlighten me by citing the section. Ottawa’s bylaw does prohibit riding a bicycle on a sidewalk however and makes no exception for children or small wheeled bicycles.

      Ottawa Bylaw

      84. (1) No person shall drive a vehicle or ride upon a skateboard, rollerskates or in-line skates on a sidewalk except for the purpose of directly crossing the sidewalk.
      (2) No person shall drive a vehicle over a raised curb or sidewalk except at a place where there is a ramp, rolled curb or depressed curb.

      Effect of bylaws

      One possible avenue for defence if charged under a municipal bylaw is the “consistency” law in the HTA (below). If a municipality adds a requirement which is inconsistent with the intent of the wording of the HTA and by being so compromises the safety of the cyclist, this section might reasonably be used to defend oneself.

      Inconsistent by-laws deemed repealed
      195. (1) If a provision of a municipal by-law passed by the council of a municipality or a police services board for,
      (a) regulating traffic on the highways;
      (b) regulating noise, fumes or smoke created by the operation of motor vehicles on the highways; or
      (c) prohibiting or regulating the operation of motor vehicles or any type or class thereof on the highways, is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising.

      Conclusion

      Know your rights and practise your responsibilities. Know the law and abide by it.

      Learn safe cycling practices through your club or by taking Can-Bike instructions offered by the City of Ottawa's recreation department. Sooner or later cyclists, motorists, and police services will have a common understanding of the law and then the slogan "share the road" will have a lot more meaning for everyone.


      Avery Burdett

November 30, 2013