The War on Walking: Nova Scotia's ludicrous pedestrian fines

Nova Scotia's crosswalks and intersections are once again in the limelight, once again for all the wrong reasons.

Last week, the Nova Scotia legislature passed Bill 133, which, passed a series of changes to the Motor Vehicle Act. Among other things, it increased the fines in Nova Scotia for breaking the rules related to crosswalks and pedestrian signals to almost $700 (and higher for subsequent offences).

On the face of it, this might seem reasonable. Halifax in particular has been suffering from what seems like an epidemic of crosswalk accidents and other car-pedestrian collisions, with advocates calling for better enforcement of the law. Education campaigns don't seem to have worked. Surely increasing the fines will help with enforcement?

Indeed, that's what the Minister of Transportation seems to think. He says the increased fines are "not about punishment ... , it's about deterring these actions" and that the changes are about shared responsibility and are designed to "save lives". All of which seems reasonable on it's face.

But once you start to dig down, the law looks less reasonable, and less likely to be effective at saving lives.

Bill 133 increased certain fines by making all violations of s. 125 and certain violations of s. 93 of the Motor Vehicle Act into Category G offences, which carry fines of $697.50 for a first offence, $1,272.50 for a second offence, and $2,422.50 for a third offence.

As I've explained elsewhere, Section 125 contains a broad range of rules relating to whether cars or pedestrians have the rights of way in crosswalks and elsewhere. Section 93 deals with the rules for traffic signals, including pedestrian lights. Any violation of the right of way rules in section 125, or a violation of section 93 where a person fails to yield the right of way or, as a pedestrian, proceeds other than when authorized to do so, now carries the nearly $700 fine.

The problem is that these sections include a wide range of offences, some of which are much more dangerous than others. The pedestrian who enters the crosswalk a second or two late (on a flashing hand), even if there is no traffic coming, gets the same fine as the pedestrian who carelessly steps off the curb directly in front of a car. The car that fails to stop at an unmarked crosswalk because they didn't see the person waiting gets the same $700 fine as a car that turns on a red light into a pedestrian-filled crosswalk. The fine is in no way proportional to how dangerous the activity is, or whether or not someone gets hurt.


It's particularly problematic when you start to compare the new fine to other violations of the Motor Vehicle Act, as this table does:

Blowing through a red light or a stop sign will only cost you $180. Texting while driving is $237.50. Speeding by any amount more than 30 km/h, or passing a schoolbus that is unloading is only $410. The "jaywalking" fine of $700 is now comparable to the minimum fine for drunk driving. These are some of the most dangerous driving behaviours, but somehow, the law treats them as less bad than the pedestrian that forgets to push the crosswalk button, even if there is no traffic.

Reality is that the increased fine is not going to deter bad behaviour.  Nova Scotia already had some of the highest fines in the country for intersection violations at $180 and crosswalk violations at $410, compared to fines ranging from $110 to $172.50 in Toronto, Calgary and Moncton. Yet we still had an abysmal rate of crosswalk safety. If the risk of someone getting killed isn't deterrent enough, an increased fine isn't going to change things.


This also ignores research which suggests that the certainty of punishment, and not the severity of punishment, is more likely to deter people. In other words, a lower fine can be just as effective if not more so, as long as you enforce it more often. The more likely people are to get caught, the more likely they are to change their behaviour. Increasing the punishment without changing enforcement does little to nothing.

Yet, if anything, increasing the fine means the law is actually less likely to be enforced. Police were already reluctant to fine drivers or pedestrians for intersection or crosswalk violations when the fines were $180 and $410 respectively, except when someone got hurt. Police will be understandably even more reluctant to administer a $700 fine to people who have committed relatively minor infractions

As I've said before, what's needed isn't increased fines, it's better enforcement of more reasonable fines. Police in Nova Scotia should be instructed to carry out a series of high-profile crosswalk and intersection enforcement blitzes, similar to those used for drunk driving. Fines should be handed out to both pedestrians and drivers that flout the law.

We also need to take a hard look at how we design and maintain our roads, intersections, sidewalks and crosswalks in Nova Scotia. Poor visibility, signals that aren't synchronized or don't work properly, faded lines, poor clearing in winter, and arbitrary and dangerous sidewalk and road closures cause unnecessary delay and frustration for drivers and pedestrians alike, and contribute to some of the "bad behaviour" that we see on our streets. Higher fines don't solve these problems, they are just one more barrier to walking.

As for the changes to the Motor Vehicle Act, these were done with with very little public consultation.  The government should go back to the drawing board, and consult with the public and safety advocates, and come back with suggested changes to address safety issues in a fair and balanced way that is based on a real assessment of the danger that different pedestrian and driving behaviours cause, and an assessment of the actual effectiveness of safety measures. There's no question the current law isn't working. We need to dig a little more deeply to find out why, instead of papering over the problem with more bad laws.

Bill C-51: Be Afraid. Be Very Afraid.

Stephen Harper is on a bit of a roll. Capitalizing on recent events, his proposed anti-terror legislation, Bill C-51 seems to enjoy widespread popular support, at least according to one opinion poll. The Liberal Party have announced they won't oppose the Bill, and it seems almost destined to become law.

Nonetheless, a number of prominent Canadians, including former Prime Ministers, Judges and Justice Ministers, academics, and even some conservative commentators, among others, have expressed concerns about the Bill, including that it allows widespread sharing of citizens' private information within government, lacks sufficient oversight and accountability for security agencies, and potentially infringes certain fundamental freedoms, including freedom of speech and protest rights.

I share many of these concerns, and want to focus in on two aspects of the Bill that I find particularly troubling:

First, the Act is is no way limited to stopping or disrupting terrorism. It allows government agencies to gather and share information in respect of "activities that undermine the security of Canada". It gives a broad, open ended list of such activities, which includes terrorism, but also includes "interference with critical infrastructure". The only thing it excludes is "lawful advocacy, protest, dissent and artistic expression".

This allows our security agencies to spy and exchange information (with very little oversight) about Canadians who are taking part in all kinds of activities which are an accepted and important part of life in a democracy, including strikes, labour disruptions, and other types of pickets or protests, which are protected by our rights to freedom of speech and freedom of assembly


The carve out for "lawful" activities is simply not broad enough to protect those rights. There are all kinds of ways in which an otherwise peaceful protest can be deemed "unlawful" including a protest march that fails to get the proper municipal permits, or which inadvertently trespasses on private property. And there is often uncertainty about the lawfulness of protest activity. One group I work with spent two years prevented by a court order from protesting against a particular power project: the Court of Appeal ultimately threw out the order because it had no legal or factual basis. Still, during that time, their activities potentially fell under this new legislation, and could have subjected them to spying and other heavy handed measures. This kind of broad power will have a chilling effect on even the most peaceful protests, because of the possibility that any protest you take part in could be deemed unlawful, and result in Canadian security agencies spying or sharing private information about you.

The carve out for protest and advocacy is very different than the existing carve out in the Criminal Code, which exempts any advocacy or protest that isn't intended to cause serious harm or risk to persons or property. If the goal is to target terrorism, then security agencies should continue to be restricted to spying on those individuals and groups that are actually threatening real harm to Canadians and their property, not merely any group that happens to cause some inconvenience or disruption as part of a peaceful protest activity.To do otherwise is to subject law-abiding Canadians to the powers and scrutiny of a police state merely for exercising their constitutional rights.


Second, it creates a new offence for "advocating" or "encouraging" terrorist offences, whether they take place in Canada or abroad. The problem with this is that the definition of terrorist offences in the Criminal Code is already quite broad, and can include any kind of armed struggle, including one against an unjust government. As has been pointed out elsewhere, if this law had existed at the time, Canadians who expressed support for Nelson Mandela and the ANC during their armed struggle against the apartheid government in South Africa could have been considered guilty of "advocating terrorism". Similarly, anyone who expressed support for the Hungarian people in their uprising against communist rule in 1956 would have been guilty under this law as well. No matter what side of the political spectrum you are on, the fact that you can no longer openly voice support for people who are fighting an unjust or despotic government without fear of being convicted is a gross infringement of freedom of speech.

There are a number of other problems with the bill, including the broader policing powers it gives to our security agencies, and the lack of accountability or oversight, which are discussed at length in some of the links provided above. At the end of the day, the overriding problem with the Bill is it actually undermines the very freedoms it claims to protect. Among the many things that make Canada such a great place to live is our freedoms: the ability to speak, to ask questions, to criticize our government, and to voice our support for others around the world who are struggling for those same rights. Those rights were hard won, and are the lifeblood of our democratic system. We shouldn't let the terrorists take those rights from us, and we shouldn't let our government take them from us either.

In Defence of Online Privacy

For advocates of online privacy, these are alarming times. In the wake of the revelation that the Canada's spy agency has been using airport wifi to track Canadians, came the news that Canadian  internet providers have been providing confidential information about their customers to Canadian government agencies at a rate that has been described as "staggering" and "jaw-dropping".  In 2011 alone, Canadian government agencies submitted over 1.2 million requests for confidential customer data, often without a warrant or even a clear reason or justification. In some cases, it is as simple as a government agent picking up the phone and requesting the data, with no written request required.

In spite of the apparent ease with which they can access private information, the Canadian government is proposing to make it even easier for a wide range of "public officers" to access information about your online activity. Bill C-13 contains a number of provisions that would make necessary updates to the law to deal with cyberbullying and cybercrime. However, the government has also tacked on a number of controversial provisions which don't directly relate to cybercrime, but which would expand the ability of government officials to access your online information, in some cases without a warrant, and without your consent or knowledge. That part of the Bill is basically the same cyber-spying legislation that Vic Toews tried unsuccessfully to get passed when he was Justice Minister. That legislation was killed, and with good reason. The law didn't sit well with privacy advocates, nor with some conservatives who have fought to protect citizens from unwarranted government intrusion in Canadians private lives.

There is no question our laws need to be updated to deal with the reality of online crime. The question is why it needs to be done without the usual safeguards that protect the rights of law-abiding Canadians to carry on their day to day lives without the constant threat of government surveillance. As the mother of cyber-bullying victim Amanda Todd has pointed out, violating people's privacy without valid justification creates more victims, not less. The answer to cybercrime is not to allow the government to violate its citizens rights with impunity. In fact, it's fairly clear some of these provisions have little to nothing to do with addressing cyberbullying.

Proponents of the Bill have advanced a number of arguments in favour of the cyber-spying provisions. I find some of them unconvincing, and some of them downright frightening.

First, it has been suggested that people should not be standing up for the privacy rights of cybercriminals. This is just basically a re-hash of Vic Toews' infamous statement that if you don't stand with the government, you stand with child pornographers. This is not about the privacy rights of criminals. This is about the privacy rights of all Canadians.

Second, it has been argued that if you have done nothing wrong, you have nothing to fear. But that is precisely the problem with warantless spying. To get a warrant, the police have to show some reasonable and probable grounds for believing you have committed a crime. If they don't need a warrant, they don't have to show any grounds to believe you have done something wrong. They can access your private online information for any reason they want.

Third, it has been argued that these are merely "tools" that will help the police solve more crimes. Of course they will. If the police knew what everyone was doing at every hour of the day, they would be able to solve every crime. But then we would be living in a police state. Likewise, this online surveillance is an unwarranted intrusion on the ability of Canadians to go about their daily lives with some degree of privacy.

Fourth, it has been argued that people already share a great deal of information online, often through social media sites such as Facebook, that in turn harvest and sell that information. However, that is different. While there are no doubt problems with the way sites like Facebook share information, when you share information on Facebook, you at least do so knowingly and voluntarily, and subject to the terms of your user agreement and the privacy laws that govern these sites.  In the case of online spying, it is being done without your consent or knowledge, and often with little or no obvious legal justification.

But the most pernicious argument is the suggestion that online privacy is a "myth" or an "oxymoron". That members of the public should have zero expectation of privacy when they go online. That somehow, everything we do online is and should be available to anyone else, including the police if they want it.

To me, this argument misunderstands both the nature of the internet and its importance to modern-day life, and sets us on a very dangerous path with respect to the relationship between police and private citizens. It is also a self-defeating argument for those who claim they are trying to protect our children from online bullying and crime.


For starters, I don't think many people would suggest that the government should be able to randomly open and read our mail, or have unrestricted access to listen in on our private phone calls. In fact, a those things are the very hallmarks of a police state. Yet this "no privacy" argument suggests that if you send an e-mail to a friend, you should expect the government to read it, and if you use skype to call the grandkids, then you should expect the government to be listening in. The internet is an important vehicle for private communication, and people using it should enjoy the same protection as those making a phone call or mailing a letter.

Similarly, unless you are doing something illegal, the government has no legitimate interest in knowing what you are reading, or what you buy at the supermarket. Yet the "no privacy" advocates are basically suggesting that if you do your reading or your shopping online, it is fair game for a warrantless police search.

The reality is that in this day and age, many of us spend a significant part of our day online. Some of that time is spent doing things that are shared with the public (like this blog post, or things said on twitter). Some of those things we reasonably expect to remain private and confidential (like online banking, online shopping or personal e-mails). Unless we are doing something illegal, the police quite frankly have no business knowing most of what we are up to online.

Citizens in democracies have fought hard for the rights to ensure that their lives are not the subject of unwarranted government oversight. Many around the world still do not enjoy these rights. These rights are now very much under assault by laws that seem well intentioned, but which ultimately undermine important democratic safeguards. It is time for Canadians to stand up for their rights to privacy, their rights to protect their personal information and personal lives and ultimately their right to live in a free and democratic society.

Further, given that most online crime involves a breach of the victim's online privacy, it is self-defeating to combat online crime by creating even less online privacy. The cyber-surveillance provisions can and should be removed from this bill, and the government, instead of once again tacking the same old bad laws onto another Bill, needs to go back to the drawing board on its whole approach to cyber-surveillance and online privacy and security. Whether they are living online or offline, law-abiding Canadians should be entitled to go about their day to day lives without having to look over their shoulder and wonder who is watching them.

Is the Senate stuck with Patrick Brazeau and Mike Duffy?

A couple of Senators have been in the news lately for all of the wrong reasons.

Senator Patrick Brazeau was removed from the Conservative caucus after being arrested at his Gatineau home, due to an alleged incident of domestic abuse.  Brazeau, the youngest current Senator, has been a controversial figure since his Senate appointment in 2009, and has recently faced media scrutiny over a variety of issues, including the news he used his former father-in-law's on-reserve address to claim his income as tax exempt from 2004 to 2008.  Brazeau is also under investigation by a Senate committee for possible abuse of his Senate housing allowance.  Senators who live more than 100 km from Ottawa can have a second residence in the capital region and receive up to $21,000 a year to cover that expense.  Brazeau was apparently claiming his father's address as his primary residence, and then collecting the housing allowance for the house he rents in Gatineau.

However, while he is no longer a Conservative Senator, Brazeau can continue to sit in the Senate as an independent, although he faces possible suspension.

Another Senator who has found himself in hot water over his housing allowance is Mike Duffy, who was appointed as a Senator for Prince Edward Island in 2008.  Duffy, who grew up in P.E.I. but has lived in Ottawa for decades, has apparently been claiming a cottage in Cavendish as his primary residence, and then claiming the taxpayer-funded allowance for his home in Ottawa. 

However, in Duffy's case, the residence issue runs a little deeper: while there are very few qualifications for the position of Senator, one of them is that the Senator has to reside in the Province that they represent.  And it would seem that Duffy, while claiming to be resident in P.E.I., pays the non-resident tax rate for his P.E.I. property, does not have a P.E.I. health card (though he recently aked the government to fast-track his application for one) and is registered to vote in Ontario.  All of which raises the issue of whether Duffy was even eligible to be appointed as Senator for P.E.I. in the first place.

Unfortunately, with Canada's appointed Senate, Canadians don't have the option of voting anyone out.  So unless Stephen Harper succeeds in his bid for senate reform (which I hope he does), regardless of any wrongdoing, we might be stuck with these Senators until they turn 75.  For Brazeau, that's 37 years away.

But isn't there something the Canadian public or the Senate itself could do in the meantime?  The rules of the Senate do allow the Senate to suspend a Senator (with pay) and further provide that a Senator who is charged with an offence that may be indictable is immediately placed on leave of absence.

However, removal of a Senator is governed by the Constitution Act 1867.  As I mentioned above, Senators must meet certain qualifications to be eligible to be appointed in the first place.  They are (in brief) that a Senator must:

• Be thirty years of age or over;
• Own property valued at $4,000, over and above any debts;
• Own real property in the province for which they are appointed (and within their District in Quebec)
• Be a resident of the province for which they are appointed; and
• Be a natural born or naturalized subject of the Queen.

Senate seats can be vacated due to death, resignation, or retirement, a Senator can only be removed for the following reasons (again, briefly):

• Failure to attend two sessions of Parliament;
• Taking an oath to or becoming a citizen of a "foreign power";
• Declaration of Bankruptcy;
• Conviction for treason or a felony or any "infamous Crime"; and,
• Ceasing to reside or own property in the represented area

While the Constitution doesn't explicitly spell out who has the power to remove a Senator, it does state that any issues with respect to a Senators' qualifications must be determined by the Senate itself.

That is probably good news for Duffy.  While there might be some question about whether he was even qualified to be the Senator for P.E.I., it seems unlikely that the Conservative majority in the Senate would toss him for that.

For Brazeau, the news might not be so good.  While it appears he meets the residency requirements, he may also be facing investigation and criminal charges for domestic abuse, and possibly income tax evasion.  This could lead to jail time or personal bankruptcy, or could result in him failing to meet the property requirement or missing sessions of Parliament, any of which could result in him being turfed.  And unlike Duffy, at this point, it is unlikely he has many friends in the Senate who will plead his case.

Senate Reform: Teaching an Old Dog new Tricks

Maybe it's a slow news week in Ottawa, but the topic of Senate Reform is back on the agenda ... sort of.  The Harper government announced last week that they will be referring their latest senate reform bill to the Supreme Court of Canada for a determination on its constitutionality.  This is a process that could take anywhere from several months to a couple of years.  So while it is back on the agenda, it is not exactly on the front burner just yet.

When I brought up the topic the other day, someone joked that the only thing older than the topic of Senate reform is the senators themselves.  And indeed, the debate over Senate reform has been going on for much of Canada's history.  While it has never been the burning issue of the day, it's an issue that never seems to go away either.  There is something about the Canadian Senate that seems to invite the attention of every new generation of politicians, political scientists and democratic reformers.

The Senate is one of the two houses of the Canadian Parliament along with the House of Commons.  While the Senate is referred to as the Upper Chamber for protocol reasons, the House of Commons is by far the dominant chamber: the government is only responsible to the Commons, only the Commons can initiate money bills, most legislation starts in the Commons, and in practice the Senate rarely rejects a bill passed by the Commons.  The Senate was created at Confederation by what is now known as the Constitution Act 1867, and was styled somewhat on the British House of Lords.

The Senate was intended to counterbalance representation by population in the House of Commons by providing an equal voice to each region.  More seats were added as more provinces were added.  There are now 105 seats: Ontario, Quebec, the Maritimes and the Western Provinces each have 24, Newfoundland and Labrador has 6, and each of the territories have 1.

The Senate was also meant to be a chamber of "sober second thought" where Parliament would have a second chance to consider and scrutinize legislation before it was passed.  A cynic might suggest that the Fathers of Confederation didn't entirely trust the rabble elected to the Commons, and wanted to ensure that the wealthy landowning elite had the final say.  Regardless of the reason, sober second thought has come to be seen as one of the vital constitutional roles of the Senate.

Senators are appointed by the Queen, acting on the advice of the Prime Minister.  They were originally appointed for life, but now can only sit until they are 75 years old.  There are some basic qualifications such as residing and owning property in the province they represent, and being a minimum of 30 years of age.   Other than that, the Prime Minister essentially has unfettered power to choose appointees.

While Prime Ministers have occasionally used this power to appoint independents, members of other parties, or groups who are traditionally underrepresented in the Commons, for the most part this power has been used to appoint party loyalists who will dutifully pass government legislation.  As a consequence, the Senate has come to lack the power or the democratic legitimacy to oppose even the most unpopular legislation.  In a particularly egregious example, Brian Mulroney was able to exercise a special power to appoint eight extra Senators in order to overcome Liberal opposition and pass the GST.

For all of these reasons, the Canadian Senate has come to be seen as a bit of an anachronism, particularly compared to other countries that have elected Senates, such as the United States and Australia.  Even the House of Lords now has some elected members.

While some argue that the Senate should simply be abolished, democratic reformers have long championed senate reform, in the belief that an elected, effective Senate could actually serve an important role in our Parliamentary democracy.  In a country where power has become dangerously concentrated in the Prime Minister's Office, an elected Senate could serve as an important check and balance.  But changing from an appointed to an elected Senate would require a constitutional amendment, and meeting the strict requirements of the amending formula is politically very tricky and requires the support of at least 7 of 10 provinces.

To that end, since being elected in 2006, the Conservative Government has tried to strike a difficult balance between a pragmatic reform that can get the necessary political support without necessarily requiring a full-blown constitutional amendment.

Their first effort to let Canadians choose Senators in 2006 missed the mark somewhat.  Bill C-20 called for the government to conduct "consultations" with voters (essentially non-binding federal senate elections) before making senate appointments.  The Bill was rightly criticized for a number of practical and legal problems.

However, while some have accused him of stalling, and while he has made some questionable appointments himself, Harper's desire to see elected Senators seems to be genuine, and he has repeatedly extended the invitation to the Provinces to hold their own Senate elections, with the promise that he will appoint the winning candidates.  To date, only Alberta has taken him up on this invitation.

The latest approach being championed by the government is somewhat different.  Bill C-7 would limit Senators to one nine year term of office (a change that definitely requires a constitutional amendment).  It also sets out a framework for each province to hold its own senate elections, which would be administered by provincial officials.  In an interesting twist, it proposes that instead of being members of  federal political parties, Senators would be members of provincial parties.  Eric Grenier has pointed out this raises the bizarre spectre of having Parti Quebecois and Wildrose Alliance members in the federal Parliament.  While there some obvious political alignment between many of these parties, there is some question as to whether these parties could effectively work together in caucuses or not.

However, the proposal does have some appeal as well.  First, making Senators members of provincial parties creates an added degree of independence from the government, which, combined with the term limits, enables the Senate to act as a true chamber of sober second thought.  The Prime Minister will not be able to control Senators the way he has come to control MP's.  Second, it is arguably aligned with the other main purpose of the Senate, which is to provide a greater voice to the regions.  Third, it might be a practical way of getting more provincial governments on board with Senate reform.

To date, the NDP and Liberals, both federally and provincially, have generally resisted the Tories attempts at Senate reform.  The NDP prefer to abolish the Senate, while the Liberals seem to want to make it part of some larger constitutional reform.  Stephane Dion went as far as to suggest that of all the bills before the House, C-7 is "the most dangerous for the future of our country."

On a practical level, I have a hard time understanding why Liberal and NDP provincial governments in particular have been so reluctant to get on board with Harper's proposal to hold provincial Senate elections.  Had they accepted the invitation, the Tories would not have the stranglehold in the Senate that they currently enjoy, and some of the most controversial pieces of legislation, including the omnibus bills, would have been subjected to more legislative scrutiny.  Further, they could be running candidates who support either different reform proposals, or outright abolition, which would further the debate.

As Grenier suggests, with the greater variety of provincial parties involved, there is a risk the Senate could descend into dysfunctional chaos.  On the other hand, most of these parties have some affinity and common interest, and we might see some cross-party political collaboration and coalition-building, the likes of which we have not seen in Canada in some time.

The Bill also doesn't seem to mandate a particular electoral system, which opens the door to some debate on the appropriate voting system.  The STV system used to elect the Australian senate seems like a logical candidate.

Canadians are understandably wary of having Parliament descent into US-style gridlock, where an elected House and Senate often seem to be working at odds with each other.  However, the proposed reform is actually based more closely on the Australian Senate, which is generally seen to have served as an effective check and balance within their Parliamentary system.  Canada would need to turn its mind to rules that deal with any conflicts between the two Houses.

The Supreme Court will obviously have the final say on constitutionality, but in practice, the proposed legislation will likely work the same as the Tories fixed election date legislation: it will be politically enforced rather than legally enforced.  It ultimately depends on the provinces acting in good faith in holding the elections, and the Prime Minister acting in good faith in appointing the election winners to the Senate.  Nothing short of an actual constitutional amendment could create an elected Senate that doesn't depend on goodwill.  That being said, if we try the proposed system, and it works, perhaps it will pave the way to actual constitutional reform.  If it doesn't work, we can discard and try again with a different model.  One of the virtues of this approach is that the kinks can be worked out before it is constitutionally set in stone.

Ultimately, an elected Senate would have more political legitimacy and power than the current appointed model, and could act as an important check and balance on the currently unfettered powers of a Prime Minister.  The Senate could finally serve the purposes that it has been meant to serve all along: providing balanced regional representation and providing a true sober second thought on proposed legislation.  They say you can't teach an old dog new tricks, but there is no reason you can't breathe new life into an old institution.

Crosswalk Safety: Better Enforcement

Given some of my posts on the need for improved crosswalk safety, I was concerned to hear the recent statement by the Halifax Regional police that, despite a spate of recent crosswalk fatalities and injuries, they do not plan to increase enforcement of crosswalk violations, but will focus instead on educating the public.  It was even more concerned by the statement by Toronto police that the answer to crosswalk accidents is for pedestrians to wear lighter clothes.  This was recently echoed by one Chronicle Herald columnist.

Public education must go hand in hand with enforcement. In order to be effective, laws must be both well understood and well enforced.  The two are mutually reinforcing.  Enforcement without education is unfair, because people cannot reasonably be expected to follow laws they are not aware of or do not understand.   And education without enforcement is somewhat toothless: some people will ignore laws unless they are held to account for breaking them.

I've had more than one person suggest to me that crosswalk safety is merely a matter of common sense and personal responsibility.  Pedestrians know they are at risk, and so they should take every precaution, including wearing lighter clothes.  That certainly seems to be the view of some people within the police department.

I agree that common sense should prevail, and that all users of the road should act with a regard for their safety and that of others.  Pedestrians should look both ways before crossing the road, and should make sure drivers see them and have time to stop.  The fact you had the right of way will matter very little if you are seriously hurt or even killed.

Similarly, drivers need to be exercise caution when approaching all intersections, and be on the lookout for pedestrians waiting to cross as well as those already in the crosswalk.  It is sometimes difficult for pedestrians to tell whether drivers have seen them and intend to stop, so it helps if drivers make eye contact with pedestrians and make clear they have seen them.

A little courtesy doesn't hurt either.  As a pedestrian, I always try and acknowledge drivers that do stop with a friendly wave.

So I agree that Crosswalk safety starts with personal responsibility.  However, as recent events demonstrate, when people are breaking the law and endangering public safety, it doesn't end with personal responsibility.  All the common sense in the world won't save you from other people's lack thereof.  That is why we have laws. 

To that point, I was recently out for a walk with my one year old son, pushing him in his stroller.  We came to a marked crosswalk across a two-lane street near our house.  I looked both ways, and there was no traffic coming in either direction, so we started across the crosswalk.  We were almost halfway across, about to enter the far lane, when a car came speeding around the nearest corner, headed towards us on the far side of the road.  I could see the driver was not going to stop, so I did.  She flew past us about a foot away without even a glance in our direction.  We had been well into the crosswalk when she turned the corner, so I don't know if she simply didn't see us (I'm a big guy, and the weather was good) or if she simply didn't care.  I'm not sure which is more frightening.  I was a little shaken up and didn't get the woman's plates to report her.  I should have.

Had we been a foot further into the road, she would have hit my son in his stroller.  And although I'd exercised common sense and personal responsibility, that would not have mattered had by son been run over.

Where other people fail to exercise common sense and personal responsibility, we need laws to hold them accountable.  But laws only work if they are enforced.

Yet it seems that in Halifax and elsewhere, crosswalk laws are rarely enforced unless someone gets hurt or killed.  It is apparently uncommon for police to ticket either pedestrians or drivers for crosswalk violations unless someone gets hit. And the police seem to have little appetite for an actual enforcement campaign.

Of course, laws can't be enforced unless the police know they are being broken.  I'd encourage users of the road to report crosswalk violations when they see them.  I've certainly heard stories of the police citing people for crosswalk violations based on citizen reports.

Reporting more incidents will also give police more accurate info on just how serious the crosswalk safety problem is.  To that end, I am glad to hear that Halifax police may be getting a traffic accident mapping tool that enables them to identify hot spots.  Of course, the tool will only be truly effective if they then take out their ticket pads and target those hot spots with targeted enforcement campaigns.

At the end of the day, while education is important, better enforcement can serve an educational function as well, a high profile campaign of enforcement can itself be a very effective form of education, reminding both motorists and pedestrians of their responsibilities to themselves and to each other.

Who Owns the Stanley Cup?

With the news that NHL lockout negotiations have broken down, there is an increasing chance the Stanley Cup finals won't take place this year, leaving hockey fans wondering how they will get their hockey fix.  It has also left some fans wondering why it is that the NHL controls the Stanley Cup at all.  If they aren't going to award the trophy, shouldn't someone else be able to play for the "Dominion Hockey Challenge Cup"?  Why does the NHL get to decide who plays for the hockey's holy grail anyway?  Or as one article put it "If the NHL won't use it, can Canada have the Stanley Cup back?".

While one commentator has referred to the legal status of the Stanley Cup as "unknowable" that is not entirely accurate.  There are some uncertainties around the legal status of the Cup.  However, it seems fairly clear that while the NHL holds trademarks over the name and image of the Stanley Cup, it doesn't actually own the Cup.  The Stanley Cup is held in trust.  A trust is a legal relationship in which one person (the donor or grantor) gives a piece of property to another person (the trustee) to hold that property for the use and benefit of a third person (the beneficiary) or for some charitable purpose. 

In the case of the Stanley Cup, it was gift from Lord Stanley of Preston, then Governor General of Canada in 1892, to be awarded to the top amateur hockey team in Canada.  Lord Stanley appointed two trustees of the Cup, and laid down some fairly general preliminary regulations governing how it was to be used and awarded, which gave broad discretion to the trustees.  The Cup was intended to be a challenge cup, and in the early years, the champion of any senior hockey league could challenge for it.

Around 1908, with the introduction of the Allan Cup for amateurs, the Stanley Cup became the trophy for the top professional hockey team in the country.  The Stanley Cup final became a competition between the Pacific Coast Hockey Association and the National Hockey Association (precursor of the NHL), and later the Western Canada Hockey League as well.  These leagues grew to include American teams, and in 1917 the Seattle Metropolitans were the first American team to win the Stanley Cup.  The PCHA and WCHL later merged to form the Western Hockey League.  In 1924-25 the WHL's Victoria Cougars became the last non-NHL team to win the Stanley Cup.  When the WHL folded in 1926, the NHL was left as the sole league playing for the Cup.

In 1947, the Trustees of the Stanley Cup reached a deal with the NHL that gave the league exclusive control over the Cup, sole discretion over how to determine the winner, and the ability to reject challenges from other leagues.  Although it does provide that if the league ceases to be the top professional league in the world, or that if the league dissolves or terminates, the Cup shall revert to the control of the trustees.  The current trustees are both former NHL Vice Presidents.

Many people have since questioned the validity of this agreement, and for good reason.  Trustees are required to honour the intentions of the donor of the trust.  Intentions can sometimes be difficult to interpret, and in this case, the few regulations that Lord Stanley did lay down in writing give fairly broad discretion to the trustees.  However, it seems fairly obvious that Lord Stanley intended the Cup to be a challenge tropphy, and not to become the exclusive property of one league.  There's a strong argument that it was simply not open to the trustees to enter into such a deal with the NHL, and the agreement is invalid.

During the 2004-2005 hockey lockout, a recreational team called the Wednesday Nighters decided to challenge for the Cup, and took the trustees to court to challenge the validity of the agreement.  The case dragged on and ultimately settled in 2006, by which time the lockout was over.  The settlement agreement provided that the trustees could award the Cup to a non-NHL team in the event that the NHL failed to hold a Stanley Cup competition that season.  However, when the 2012 lockout commenced, the Trustees made clear that even if the NHL doesn't have a season this year, they will not entertain any challenges from non-NHL teams. 

The Trustees are on shaky legal ground here.  Again, their actions don't seem consistent with the original intentions and purposes of the trust, and the agreement with the league is of questionable legal validity.

There is some question as to whether this is a purpose trusts, or a trust for persons.  If it is a trust for persons, it is always open to the beneficiaries of a trust to take the trustees to court and enforce the terms of the trust.  While it is not entirely clear in this case who the beneficiaries of the trust are, there is a fairly strong argument that the beneficiaries are the Canadian people themselves.  If that is the case, then literally any Canadian could go to court to enforce the Stanley Cup trust, and try to force the trustees to award the trophy.

Obviously, the NHL would fight this tooth and nail.  The Stanley Cup is their most valuable asset and they would not give it up without a fight.  Anybody seeking to challenge the league's control of the Cup would doubtless be met by an army of lawyers, and would probably get bogged down in endless procedural wrangling and appeals.  The case likely wouldn't be decided until long after the current lockout is over.

However, given the fact that the NHL is now potentially facing it's second lost season in just 8 years, fans might want to ask themselves whether the NHL is really the best custodian of the Cup, or whether it is time for hockey fans to take control of the cup back, and return it to the use for which Lord Stanley originally intended it: a challenge cup for the best teams in the Dominion of Canada.