The court case against a woman who allegedly ran down Kyle MacKay in a Halifax intersection was dropped because he was riding a bike at the time.
MacKay, who’s still recovering from the effects of the collision in November, says he’s furious at the reasoning behind the Crown prosecutor’s decision at Halifax provincial court on Wednesday evening.
The charge was failure to yield to a vehicle in an intersection while making a left turn.
Because a bicycle is not considered a vehicle under the province’s Motor Vehicle Act, the Crown deemed it impossible to get a conviction.
“Apparently, they determined that even though I had front and rear lights on my bicycle and that I could signal, the fact that the bike did not have an engine means it’s not a vehicle and there's no way the Crown could word the charge to make it apply to a bicyclist,” MacKay said.
Beyond this, MacKay argues that the absence of parity in the law shows the lack of protectionbicyclists are offered under the Act.
“This is clearly a case of a cyclist being struck and the law not doing anything about it.
“The people that make these laws do not care about the safety of people on bikes. But on the other hand, if you have an engine on your vehicle, then you're protected. What precedent does this set? Is it that anyone driving a car or truck can mow down a bicyclist in an intersection and they won’t be held accountable under the law?”
MacKay has already received part of a monetary settlement through the woman’s insurer. But he says he’s more concerned that the current rules of the road fail to adequately protect bicyclists.
MacKay says the collision, which left him with a broken left humerus, traumatic bursitis to both his knees and a concussion, occurred at the intersection of Washmill Lake Drive and Chain Lake Drive. MacKay, an avid bicyclist, was driving straight through a green light when he says he was T-boned by a gray Mazda 5 car attempting to make a left turn.
Jeff Mitchell, a Halifax personal injury lawyer, says MacKay has a
right to be upset. A triathete and bicyclist, Mitchell argues the act should be amended to put bicycles on par with motor vehicles.
“Because the MVA is a quasicriminal statute, any uncertainty over the language of the statute will be resolved in favour of the accused,” said Mitchell. “The effect of this ambiguity could allow a driver to avoid prosecution for certain motor vehicle offences if the offence relates to a bicycle.”
Mitchell says cyclists are held to the same expectation as other drivers in following the rules of the road and everyone should have to adhere to the same rules to promote safety.
Mitchell argues the province should follow Ontario’s lead, which has resolved
the ambiguity by including bicycles under the definition of a vehicle.
“Clearly, Nova Scotia should consider redrafting its legislation to address the ambiguity.”
Still, he says, even with the current discrepancy negligent drivers can’t escape responsibility in the event of an accident and a subsequent insurance claim against them.
William Mathers, the Crown prosecutor who handled the case involving MacKay, says he studied the MVA legislation at length in an attempt to pursue the case further, but deemed he had no chance of a conviction.
“I went through the legislation, as far as I could tell I couldn’t have proven that offence,” he said. “A vehicle is expressly defined in Section 2 of the Motor Vehicle Act. A bicyclist is defined elsewhere.
“If that’s what the person is charged with and you can’t prove it, you don’t have a case.”
Mathers says no fault can be pinned on the police officer who wrote the ticket.
“You have to remember that police officers are dealing with difficult situations on the ground and sometimes you get a more complex legal question that arises afterwards that doesn’t have any bearing on the officer’s judgment.”
Spokeswoman Marla MacInnis said the Transportation Department is working on a new traffic safety act but offered no timetable or whether bicycles would be afforded protection on par with motor vehicles in the new act.