Move-over law ambiguous, confusing, law professor says

A Dalhousie University law professor says a recent Nova Scotia Supreme Court decision demonstrates that the controversial move-over law is confusing to the average driver and in need of revision.

Wayne MacKay, an expert in constitutional law, says his beef is not with Justice Peter Rosinski’s decision on Monday, ordering a new trial for a Halifax man who had been acquitted of violating the move-over law in provincial court.

But he says the problem lies in the fact that the two judges interpreted what he calls a poorly written law differently.

Rosinski argued that the provincial court judge erred in his interpretation of the law. The lower court judge deemed that the Crown failed to prove beyond a reasonable doubt that the defendant had ample opportunity to safely move to a neighbouring lane after seeing a Halifax Regional Police vehicle parked on the shoulder of Highway 102. The incident occurred on July 6, 2017, in the Halifax area.

In his decision Rosinski argued that the burden was actually on the accused to prove on the balance of probabilities that he couldn’t move to the neighbouring lane safely.

“The ambiguity is a very big deal,” said MacKay. “When we’re being charged with an offence that carries such a significant penalty the offence should be as clear as possible for the general public reading the law.

“If two judges are disagreeing, it’s certainly not clearly enough written that the general public can understand the law.”

MacKay says it should be explicitly stated in the law who holds the burden of proof.

“It’s not clear on which they intended and they could make it much clearer so that this case wouldn’t have gotten into the tangle it has in the first place.

“But I think it’s a reasonable interpretation by both judges. The legislators could have and should been more careful in making it clear. Clarity in the legislation is always a good thing.”

In his decision, Rosinksi set aside the appeal court’s decision and ordered a retrial.

A move-over law conviction carries a minimum $350 fine. The law which came into force in 2009 is designed to protect emergency responders but has come under scrutiny for putting too many demands on drivers. The legislation requires drivers to slow down to 60 km/h when passing emergency vehicles with their emergency lights on but also to move over to the closest available lane if safe to do so.

Move-over laws also vary among the Atlantic provinces. For example, laws in New Brunswick and Newfoundland and Labrador instruct drivers to move over but only to slow down and proceed with caution.

“The message should be it’s only an offence if it’s safe to move into that other lane,” said MacKay. “Any other interpretation is nonsensical. Where the courts disagree is who has to prove on the facts that it was not safe to move into that other lane. This latest decision says that the defendant needs to prove it was unsafe for him/her to do so.”

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