What does Ontario have that bicycle advocates in British Columbia want?
Reverse onus is a hobbyhorse for David Hay, a Vancouver solicitor who is frequently called upon by cyclists and cycling advocacy groups. In the Cycling in the Law session on Tuesday at Velo-city Global 2012 in Vancouver, Hay offered his "view from the handlebars" about police competency in investigating cyclist crashes and injuries, and about the use of reverse onus in a number of jurisdictions.
Essentially, reverse onus means that the accused has to prove he/she was not in the wrong. Hay argues that reverse onus is an essential civil litigation remedy for cyclists, who are often alone when they are struck, so that the only witness is the person who struck them.
He told the jammed room that in many cases that he has seen, the cyclist is rarely interviewed at the scene (largely because EMS personnel remove the victim to hospital) and often, the cyclist may not be able to offer evidence of what happened: memory of the event may be erased by impact, was struck from behind and did not see what preceded the impact, etc.
Interviews are often done with those who remain at the scene: the driver, passengers and bystanders, who are often allowed to talk among themselves, which may prejudice their recollections. As well, the police may write their entire report based on the interviews with the "one side" of the incident, which can bias their reports.
Hay also said, "I'm disappointed at how seldom police take measurements or take photographs of the victims, of the position of the vehicle. If they just took that task more seriously," but many responding officers view a survivable cyclist-motorist incident as a likely civil matter, rather than criminal matter.
The answer is reverse onus: that the driver of a motor vehicle, when causing injury to a vulnerable road user, has to prove that he/she was not driving improperly or illegally.
He said that Canada, generally, has been slow in its development of cycling law, but one jurisidiction, Ontario, has a reverse onus provision for civil law, buried in the Highway Traffic Act, section 193.
It says, "When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle."
What does it mean for Ontario cyclists? Sadly, it does not apply to the death of a cyclist, although an argument could be made that the estate could make a claim against a motorist. It means that in the event of an injury or damage, a cyclist should be thinking about more than Criminal Code or Highway Traffic Act charges. Certainly, there should be pictures taken of the scene, and all evidence that can be gathered should be gathered. The co-operation of responding police officers should be sought.
Hay says the section does not appear to have been often cited. It sounds like it should be.