“Right” to Take the Lane?

August 2, 2016

Law

Off the usual topic of business law posts, this news article caught my eye (and ire) about a road rage incident in Edmonton this weekend between a motorists and a cyclist:

Bashir Mohamed says he was cycling home when it happened.

He was near the construction of the new arena downtown when a Ford truck behind him began to honk. Startled, Mohamed  stopped and the light in front of him went red.

That’s when the whole situation started, he said.

“The woman behind me rolled down her window and yelled ‘Get off the f–king road,’ Mohamad recalled.

Mohamed says he yelled back, saying it’s illegal to ride on the sidewalk.

“Then the scary part happens,” said Mohamed. “That’s when he said ‘Get off the road you f–king  n—-r.’

[…]

After Friday’s situation, Mohamed brought his concerns to the police who told them that there was nothing they could do.

“They told me that they couldn’t do anything, it’s not considered a hate crime because it wasn’t violent. It’s considered a hate incident, whatever that means.”

Mohamed said police also told him that if they were going to charge the driver with any traffic violation they would have to charge him as well.

Edmonton police have not replied to a request for comment.

Normally I would not blog about areas of law that I don’t practise, but as a cyclist and visible minority myself, this type of incident is upsetting. I will not comment on whether the alleged racial slur (which is disgusting and hateful, if it happened as alleged) can be construed as hate crime. I will, however, weigh in on the cycling aspects of the story. I know that stretch of 104 Ave quite well. Due to construction at the 104 St intersection, 104 Ave eastbound from around that point is reduced to one narrow lane, save for a left turning lane to at the intersection.

So firstly a review of the law: Section 75 of the Use of Highway and Rules of the Road Regulation, which is a regulation under Alberta’s Traffic Safety Act, states that “a person who is operating a cycle on a highway has all the rights and is subject to all the duties of a person driving a motor vehicle under Part 1 and this Part and Division 2 of Part 5 of the Act. [my emphasis]” So yes, a cyclist can ride on that road, but must obey the rules of the road that apply to cyclists. Therefore, any motorist would be outright wrong in saying (or screaming in a lot of cases) to get off the road.

This brings me then to the police officer telling Mr. Mohamed that if they were to charge the driver, they would have to charge Mr. Mohamed too. Without knowing more of the facts and only extrapolating from the news reports, one of which I read quoted Mr. Mohamed saying he was riding in the centre of the lane, I’m assuming that the officer thought that Mr. Mohamed was violating Section 77(2) of the Regulations that reads as follows:

(2)  A person who is operating a cycle, other than a motor cycle, on a highway shall operate the cycle as near as practicable to the right curb or edge of the roadway unless that person is in the process of making a left turn with the cycle. [my emphasis]

Unfortunately, the Regulations do not define “practicable”, and again this not being my area of practice, I have not reviewed the applicable case law on how “practicable” has been interpreted in this provision (note though that “highway” does, among other things, include an ordinary urban roadway under the Act). As I mentioned, that stretch of temporary single lane road on 104 Ave and 104 St is narrow – narrow enough that, in my experience, it is not practicable (as I believe a reasonable person would define “practicable” as an ordinary term) to move far enough to the curb on the right to allow motorists to safely pass on the left. I believe that it would be outright dangerous to do so. Aside from that, under what provision of the Traffic Safety Act or its Regulations would the police officer charge Mr. Mohamed? Perhaps this may have been just the case of the officer not investigating all that facts around the situation, including the condition of that stretch of roadway. Or perhaps the officer may have not completely understood how to apply Section 77(2).

In cycling speak, the situation where you ride in the centre of the lane because hugging the curb would be dangerous is called “taking the lane”. I believe that the Regulations should be reasonably interpreted as allowing cyclists to take the lane in such situations, however vague “practicable” may be in the provision. I also believe that it the Regulations should clarify when a cyclist could take the lane, so that there would be less chance of any misunderstanding on this point among cyclists, motorists and law enforcement. I will update this post as the story develops.

[Feature image above is made public domain by Carlos ZGZ: https://flic.kr/p/Ecaiho]


One comment on ““Right” to Take the Lane?


  1. Tricia Kovacs says:

    Gregory, If you are motivated to change the laws in Canada, most states in the US include the reasons why cyclists may control the lane. See http://codes.ohio.gov/orc/4511.55 for example. But many vehicular cyclists would like to get rid of the AFRAP law altogether.

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