Login / RegisterDavid Hay: The bike helmet law and the Canadian Charter of Rights and Freedoms
In the wake of a recent constitutional challenge of B.C.’s helmet law by an unrepresented individual, and the vigorous debate thereon, it behooves me to comment further on the merit of this challenge. There is a tendency to confuse law with political issues. In my view this confusion is at the heart of the challenge.
Ron Van der Eerden was given a ticket for not wearing a helmet while riding a bicycle, contrary to the Motor Vehicle Act. He says the relevant provision of the Motor Vehicle Act violates his charter rights, particularly his right to life, liberty, and security, and his right to equality before and equal protection and benefit of the law.
The challenge stems from Van der Eerden’s belief, supported to some extent by a number of studies, that helmets deter many people from cycling. Mature cycling jurisdictions such as Copenhagen show that safety is in numbers. Despite a relatively large unhelmeted cycling population, those jurisdictions show much lower crash rates. The charter challenge is an effort to make cycling safer by abolishing helmets, thereby increasing the number of cyclists, and in turn cycling safety in general.
On the other side of the debate, there are those concerned about the recovery of health care costs in this province. They cite these increasing costs and suggest that health care costs related to brain injuries ought not to be born by the public in circumstances where a cyclist chooses not to wear a helmet. A new statute has arrived called the Health Care Costs Recovery Act. Although it does not apply to cyclists injured at the hands of ICBC-insured motorists (as a Crown corporation, ICBC is not a target of the AG for repayment of costs) virtually every other situation where a third party is liable for someone’s injuries in B.C. gives rise to an obligation on the wrongdoer to repay the province money spent on health services. This is wind in the sails of the status quo.
From a political prospective the debate is naturally divisive. The “abolitionists” accuse supporters of the status quo of closed mindedness. The supporters of the status quo accuse the abolitionists of recklessness.
Ultimately, the common ground is that safety must be a paramount consideration. To me, the helmet law debate is a potential distraction from many of the more pressing issues facing cyclists. A full and comprehensive study of our infrastructure, and all of the codified laws relating to cyclists, will go a lot further in raising public awareness of the actual causes of accidents and the prevention of accidents.
While the charter challenge of the helmet law has garnered significant media attention, it has an extremely remote chance of getting any traction. The charter guarantees fundamental rights and freedoms. Driving a motor vehicle or riding a bicycle on a public highway is not a liberty interest protected by the charter. The charter also recognizes that governments must treat different individuals and groups in different ways. The helmet law does not discriminate as between cyclists based on personal characteristics. It treats all cyclists equally under the law. Moreover, even if the helmet law can be characterized as infringing, a most unlikely outcome of the challenge, it would almost certainly be saved as a “reasonable limit” within the meaning of the Charter of Rights and Freedoms.
At the end of the day, Van der Eerden is attempting to achieve a political remedy through the courts. It is not the role of the judges in British Columbia to substitute judicial opinions for legislative ones. The helmet law challenge, while thought provoking, is poorly conceived, and the attention it has generated is disproportionate to its legal merit.
David Hay is a Vancouver lawyer who is consulted by cyclists and cycling groups.
Yes, unless of course you have a magical invisible friend who lives in the sky and commands you to wear specific hats at all times.. Then you're exempt. As long as your argument is illogical, you're good to go, which is why Van der Eerden's challenge will fail. He committed the sin of rational thinking.
If Van der Eerden had come out and said "There's a giant purple omnipotent rabbit in the sky who said I have to wear a sombrero, otherwise the purple rabbit's evil arch-nemesis who lives underground will torture me after I die," he wouldn't have anymore trouble riding without a helmet.
The real distraction is the cycling communities fear of addressing the need to ditch the helmet law.
First that Rons evidence shows increased safety in numbers in only "mature" cycling jurisdictions. Ron's evidence showsnot only that the likelihood that a given person walking or bicycling will be struck by a motorist varies inversely with the amount of walking or bicycling, but that this pattern is consistent across communities of varying size, from specific intersections to cities and countries, and across time periods.
Secondly, Ron has submitted evidence that health care costs have risen, and not dropped because fewer people cycle. Trauma drains a relatively small cost of the overall health care system, most people receive health care from the affects of an unhealthy and sedentary lifestyle, not trauma.
At the end of the day, the passing of BC helmet law was a political act and it violates a cyclists Charter rights. It's a shame Ron is representing himself. The decision to not wear a helmet is so divisive that it keeps lawyers away, even if he has a legitimate case.
Big government isn't the solution. It's the problem.
Until someone proves the very unlikely opposite of these studies, the "cycling is dangerous" meme remains nonsense. Head protection is therefore more sensible for pedestrians (who have triple the risk per km) or motorists, who have no "years of life gained" to offset their position as the leaders in national brain trauma count.
British Columbia cycling surveys conducted in 1995 and 1999, data reported for 0-30 age group had a drop of 13% in the number counted.
The UK's National Children's Bureau (NCB) provided a detailed review in 2005 stating "the case for helmets is far from sound".
Erke and Elvik 2007 stated: "There is evidence of increased accident risk per cycling-km for cyclists wearing a helmet. In Australia and New Zealand, the increase is estimated to be around 14 per cent."
Dr Hillman reported that "they do not protect the head from rotational trauma which can seriously damage the brain and brain stem and which is quite common when cyclists are hit a glancing blow from a motor vehicle rather than in direct collision with it".
Across Canada, cyclists' length of stay in hospital for head injuries increased by 60% from 4.3 days in 1994/95 to 6.9 days in 2003/04, Admissions for serious head injury increased by 46%.
The legislation leads to discrimination in accident compensation cases that are not in keeping with the principles of just laws.
It is not reasonable to impose a legal requirement to wear one.
http://momentumplanet.com/articles/keep-a-lid-on-it-mandatory-helmet-leg...\-revisited/
"It seems there is no clear evidence of a benefit related to mandatory helmet use. If anything, the studies appear to indicate a number of negative effects...
Helmet laws arguably infringe on civil liberties... Also, the failure to wear helmets often leads to unnecessary and unfair prejudice in cases involving claims for compensation.
Against this background, it is important to remember that the voice that speaks against mandatory helmet use is still very much a dissenting voice. There is a widespread perception that helmets save lives. I share that perception."
I would like to think a law shouldn't be based on a perception, but on the reality of what has happened because of the law.
I would say those who support the law do so based on perception rather than reality, and that challenging the law based on reality is about as far away from politics as it gets
A really silly suggestion. Seat belts on a bicycle would be really dangerous. They would pretty much ensure that cyclists would get seriously injured as they would be far more likely to lose their balance and fall during collisions.
Tin Tin S, Injuries to pedal cyclists on New Zealand roads, 1988-2007, Tin Tin et al. BMC Public Health 2010, 10:655 http://www.biomedcentral.com/1471-2458/10/655
It reports - Results
"The highest rate of cycling injuries was observed among the 5-14 year olds (Figure 1). In this age group, from 1996-99 to 2003-07, there was a substantial increase in injury risk from crashes not involving a motor vehicle. However, this trend was not observed when analyses were restricted to those with serious injuries. Males had a higher rate of collision and other injuries compared to females (Figure 2)."
Fig 1 shows a major increase in the accident rate for 5-14 age group, almost doubling the rate. Road safety improved in NZ from 1990 - 2009, roughly 50%+ reduction. Therefore a fall in serious cyclist injuires would be expected.
It reports- Discussion
"Of particular concern are children and adolescents who have experienced the greatest increase in the risk of cycling injuries despite a substantial decline in the amount of cycling over the past two decades."
Table 1 in their report details the cyclist accident rate per million hours, 25.6 in 1988-91, 30.7 in 2003-07.
It appears that most of the increase in risk was to children. This outcome appears very similar to Victoria and New South Wales in both reducing safety for children and discouraging them from cycling.
Those that choose not to wear a helmet are more likely [note: the probability of more severe injury increases, e.g. seat belts in Cars reduce injury, there is no definitive guarantee either way] to be fatally injured.
This is similar to natural selection. Let the idiots weed themselves out over a long period of time, while providing much needed tissue to those waiting for Kidneys, Hearts, Corneas etc.
Aside from that, the bike helmet law is certainly just another cash grab by the government. If someone can jay-walk and gets struck by a vehicle, they certainly will have free medical care. I think a better solution that will satisfy everyone is that if a person who refuses to wear a bike helmet is injured directly as a result of NOT wearing a helmet, then he can be fined; otherwise, ditch this cash cow. But, I digress. BC and Vancouver citizens tend to behave like sheep and follow their local government (sheep herders) in virtually whatever they say. How naive and gullible they are. Pity.
Pages