C.J.S. is a young person who held a class 8 motorcycle learner's licence. He was participating in a group ride from Campbell River to Gold River on Highway 28. He was seriously injured in a collision near the intersection of McIvor Lake Road when a Prius that he had been following signalled right and turned left. This case is interesting because Justice H.W. Gordon dicusses the defence of necessity and accepts it to acquit C.J.S. on a charge failing to keep to the right of a double solid line contrary to section 155(1)(a) MVA.
C.J.S. entered a guilty plea for violating a condition of his licence that required he not drive faster than 60 km/h at the start of the trial, but argued that he was on the wrong side of the double solid line in order to avoid the impending collision. He had not intended to cross the double solid line rather pass between it and the right signalling Prius. Because the driver of the Prius changed direction and started to turn left, he had no choice but to move further left to avoid a crash.
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Let's start with this:
[62] Justice Dickson gave judgment for 4 of the 5 judges. He said at page 248:
It [the defence of necessity] rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics, supra, at p. 49, “overstrains human nature and which no one could withstand”.
Source: R. v. C.J.S., 2017 BCPC 59 (CanLII), par. 62, retrieved on 2017-03-14.
I am reminded of the way that Norm Daniel - one of the best classroom teachers I've encountered - used to commence his Driver Ed class, this would be back in the late 80's. You can picture the scene; somewhere around fifteen to twenty teenagers, on a Saturday morning, faced with the prospect of spending two whole days there, certain in their own minds that they already 'know it all' - after all, most of them had already got a Learner License in their pocket by this point - but their parents insisted that they take a proper driving course as a condition of being able to learn to drive.
So Norm - an interactive teacher ten years before ICBC ever discovered the concept - would get some back and forth going about whether they all intended to drive safely (of course) and obey all the signs and all the rules (of course they would, much rolling of eyes in response to this silly question), so then he would confirm that nobody in that class would ever disobey a 'Do Not Enter' sign ... and he would then present them with the scenario that, as they're driving up the road one day, a heavily laden fuel-tanker truck coming the other way suddenly jack-knifes and flips, spilling its load, which ignites.
And so, it seems, they're all going to become crispy critters, unwilling to turn away from this river of burning fuel, because that would mean turning the wrong way into a one-way street, and so disobeying a 'Do Not Enter' sign, right?
Obviously, a bit of a far-fetched scenario. But all of sudden, you've got a class full of teenagers realizing that one of the most important things they'll have to do as drivers is to make judgments of situations, and react accordingly. By the time that Norm had finished with their 10-hour course on the Sunday afternoon, those kids would not just be more knowledgeable about driving - they would be wiser, too.
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Let's fast forward now, to 1998, when ICBC introduced the Graduated Licensing Program in this province. In common with many jurisdictions around the world, they had realized that drivers in their first year or so behind the wheel were vastly over-represented in collision, injury, and death statistics.
And if you think about it, this isn't any surprise; more often than not, teenagers would be allowed by their parents to 'learn to drive' in the summer months (often conditional on good grades in school, the old carrot and stick routine). Up until GLP, the Class 5 Learner License would expire after 6 months, but the holder would be allowed to take their Class 5 Road Test after 30 days. So that's what they did, more often than not.
Which could well mean that you've got a brand new driver on the road with a Class 5 license, who has in all likelihood never driven at night, or in filthy weather conditions, or highly concentrated traffic, has poor reversing skills, and may never have even been on a freeway. But hey, it's a 2-year Probationary License (that rule remains to this day, incidentally, even for drivers gaining from other jurisdictions gaining their first BC Driver License) so as long as they don't get too many tickets - or get dead - then that's how it is and probably few of them will ever receive any further driving instruction in their lives.
And never mind how much they may no longer drive the way they did on their Road Test, every day that passes where they haven't had a collision confirms to them that they're doing it right. Right?
I have now provided my somewhat tedious explanation for the creation of the Class 7 & Class 8 Learner / Novice licenses, and the extensive conditions imposed by these classes.
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So here's where they (the powers that be, ICBC, those folks) got it wrong, in my opinion.
Motorcyles are freaking dangerous. 33% of crashes on bikes are single-vehicle; that means the silly bugger driving the thing crashed all by himself. 42% of two-or-more vehicle crashes on bikes are not primarily the fault of the rider (only 25% are); yet in virtually every case, that rider is injured, oftentimes badly. Oftentimes, dead.
When ICBC brought in the Class 8 category, simply inheriting the previous standard (i.e. that it was OK to let a 16 year old learn to drive using a motorcycle) they simply weren't thinking. At that time, to drive any kind of heavy truck or bus, you had to be at least 18 years old, and undertake a further testing procedure.
And yet, to this day, they let 16 year olds learn all about driving - while riding motorcycles. This is nuts. So are the parents who sign permission for the Class 8 Learner license, incidentally; don't they like their children, or what?
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As a senior Driving Instructor, I have often worked with Occupational Therapists, working with drivers who have been through traumatic injuries; brain damage, physical damage, PTSD, and so on. Horror stories, some of them.
It's terrible how many involve those who were riders or passengers in motorcycle crashes; but not surprising, given their vulnerability. There's a gaping hole in the way that ICBC have dealt with this issue - or, more correctly, failed to.
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[38] C.J.S. testified his femur was broken in 8 places and a wrist in 5 places, he suffered a damaged vertebrae and damage to his jaw, and he sustained a skull fracture with a severe concussion, remaining in a coma in hospital in Victoria for 5 or 6 days.
Source: R. v. C.J.S., 2017 BCPC 59 (CanLII), par. 38, retrieved on 2017-03-14.
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The inherent dangers of motorcycling riding notwithstanding, this incident has many layers of safety issues to consider. To begin, there is the culpability of the "supervising rider", which I am hoping was addressed in another action. This person had no business taking an inexperienced rider with a (properly) restricted license on that particular road, should have been well congnizant of the problem that group rides typically entail some prospect of encouraging the inexperienced to ride beyond their skill/experience thresholds, and had a responsibility even in that context to restrict the Learner's speed and to demonstrate appropriate road skills.
The other driver, who changed his/her mind - egad. Hopefully another action will have addressed those issues.
The unfortunate rider in question was riding beyond his depth in a variety of ways, not only speed. The evidence describes him as being in an incorrect lane position initially, and electing to pass another vehicle within his lane of travel, rather than slow and wait for that vehicle to properly clear the lane. These errors of judgement are typical of both inexperienced and experienced riders, so the age/inexperience of this rider isn't entirely the necessary focus.
The investigators weren't able to establish whether, or to what extent, the rider was following too close, but plainly he was far too close to take effective evasive action.
The skid marks, and the description of the bike, take us to another matter of very serious concern. This particular bike, like the vast majority of bikes on the market, was not equipped with ABS, a feature which is known through very rigorous and repeated research to reduce fatal injuries by over 30%. It does so by significantly improving braking control in emergencies, reducing loss of vehicle control and thereby keeping as much braking force and rider control in effect as possible, and thereby either preventing or significantly mitigating impacts. In this case, it's very doubtful that impact could have been prevented by ABS, but braking force and bike control would have been significantly improved, with an obvious likelihood of reduced collision force, angle, and resultant injuries.
ABS is a primary piece of motorcycle safety equipment that has been available since 1988. It can be, and should for years have been, required as mandatory standard equipment on all bikes, as it now is in the EU. It can and should be mandatory minimum equipment on learners' bikes, for painfully obvious reasons. Instead, it is for the most part an extra cost option where available ($200 -$1,000 extra), and as yet completely unknown or,worse, dismissed, by a very large percentage of riders.
The injuries: we're not given what protective gear, if any, this rider was using. I have firstly a serious concern as to the nature and quality of the helmet, and whether it was properly fitted and adjusted. It seems evident that it was open-face, and of exceptionally poor quality given the type and extent of head injuries. Secondly, the rest of the gear seems to have offered no spine, leg, or wrist protection - all of which are available, but rarely chosen, especially by beginner riders and those who ride this particular style of bike. Again, back to the supervising rider, who had some duty of care to ensure appropriate and available levels of protection were in place and properly fitted.
Lastly, the roadway. Perfect trap for the unwary and injudicious. Evidently understood to be a dangerous section of road (double yellow lines), yet directions of travel not separated by any barrier, and an uncontrolled intersection without turning lanes. Who thought any of that was just business as usual? There are responsibilities for the outcomes of this collision which go far beyond whether C.J.S. crossed the double yellow, but as usual, there's no sign of them being identified or addressed.
Yes, motorcyle riding has inherent risks, given the instability of the vehicle and the lack of protection afforded. But even with today's technologies and equipment, there is no excuse for the continued acceptance of the notion that "nothing can be done about it". We can delay licensing, as "CompetentDriving" cogently suggests. We can establish effective minimum standards of bike and equipment for beginning riders, at the very least. We can require manufacturers to afford Canadians the same levels of safety equipment that riders in the EU have as standard equipment. We can actually go considerably further on that front, given the availability also of Motorcycle Stability Control. We can ensure that the "protective" gear that riders choose meets minimum tested levels of protection, again as in the EU. We can be guided by the volumes of research, and ban open face and shorty helmets, however much they may be the preferred adornment of many. We can ensure that roadways are designed and built with motorcycles in mind, and without the sort of driver/rider traps that this scenario presented.
A fascinating case, indeed. One of many, many failed responsibilities at all levels for public and individual safety.
We have a long way to go to give effect to the Safe Sytems Approach in the Road Sasfety Plans of BC and Canada.
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Fascinating case, this.