David

Pushing government from the outside to get change is always more effective when you have a good lawyer on your side.

Before you rush to judgement with that lawyer stereotype, know that part of Vancouver's cycling story isn't about litigation.

Sure, David Hay Q.C. (Richards Buell Sutton) is, in fact, a litigator, and litigation is part of the history of cycling advocacy.

You could also spin this the other way and suggest that, over the past few decades, David Hay (public citizen) has represented all British Columbians.

His litigation work has been about providing remedies to people who have been on the wrong end of a negligent act, omission or public misfeasance — something that causes harm, such as faulty infrastructure.

But it's his non-litigation public advocacy work that we should all care about — work related to 'non-feasance', the failure a person or entity to take action, in this case, the failure of public authorities to take action to render our roads safer.

People who bicycle — ourselves, our family, friends and neighbours, people we don't even know, but rely upon as our fellow citizens in this grand democratic bargain — have rarely been given adequate protections and due process related to misfeasance or non-feasance on our roads, certainly less than those afforded to people actually committing those aforementioned errors of omission and commission. 

A conversation with a lawyer is highly educational. Litigation has simply been David's modus operandi, the vehicle through which he wages broader campaign for road safety, and improvements to the current system. A system which discourages cycling, and left unattended, has punished those who have tried to navigate it.

He came to it, like many interested in cycling advocacy, from an adjacent world.

I was alive, quite early on, to the environmental imperative of reducing the single occupancy vehicle and replacing it with alternate modes of transportation. So that was a germ that grew, and I can't even tell you what it's origin was, in terms of my approach to the world.

It was this firm sense of self, combined with internal conflict with his early professional choices that pushed David onto a his path.

From a practical perspective, in terms of what i can do in this lifetime for my community and my world, using a law degree - I had to kinda figure that out. 

I used to do a lot of work for insurance companies and commercial interests, and institutions. One time, when I was acting for a defendant, a senior member of the bar took me aside - he was on the other side of the case - and said, "Davey, why are you doing this?" 

I said "what?" He said, "Why are you acting for the big guys?" And I said, "what do you mean?" And he said, "well, you're too nice a guy to do that. It doesn't suit you." 

Which had an incredible impact on me. It was sort of an epiphanous moment. 

I don't really love acting for people or companies, institutions unless they're ethically evolved. I realized then, maybe it was in me, that my best and highest use in this world was to empower the individual. 

Turns out, lawyers can sometimes suffer from bad PR as much as cyclists. Maybe that's part of it, the mostly powerless protected by the misunderstood. Initially, however, perhaps not the most attractive approach to building a career.

I'm not going to say it was an unheard of thing to represent someone injured in a bike accident, but it was certainly not a common thing for a downtown lawyer to do. There wasn't any model, there wasn't another lawyer that was doing it as an exclusive practice.

To identify the value of a lawyer like David purely through the lens of his litigation of bicycle crashes simply cements this ugly stereotype about the legal profession.

And it obscures the real value that David Hay brought to the active transportation community in Vancouver.

Like, for example, a deep social awareness and commitment to the world he lives in. It was this approach that would have erased, quite quickly, anyone’s stereotype of downtown litigation counsel.

I thought, you know this whole vulnerable road use thing is really interesting to me.

Even in the nineties cycling looked completely different than it looks now. Critical Mass, I remember those rides, and they were completely illegal of course, but they consisted of four or five very brave souls, getting on their bikes, and disrupting traffic. Now, a Critical Mass ride can be a thousand people. With police support. It's just incredible. 

So it was different then. There were no bike lanes, there were no designated bike paths. There were no segregated routes, no infrastructure at all really. Cyclists just had to try to assimilate and find themselves in pretty unhappy situations. 

This is where something sparked. Invited to City of Vancouver Bicycle Advisory Committee meetings in the mid-1990s, and engaged by the BC Cycling Coalition to provide a legal perspective on various campaigns and social justice causes, David began to find a role for himself that went beyond case work, beyond the individual.

I would get invited to meetings where infrastructure was being discussed. I always brought a slightly different perspective, simply because it was informed from what I had done, what I had seen in terms of my practice. Some of the reasons for collisions.

And of course I was highly motivated, because I've seen terrible situations. Severe brain injuries, quadriplegia, all manner of orthopedic injuries, horrific chronic pain.

I think I took a measured approach in most of the meetings and interactions I've had in the cycling community. I don't think I've ever been banging the table passionately, because it was already there in other people, and I didn't want to upset the applecart.

I've always felt like I was privileged to be at those meetings. My work was just imparting information about legal rights to cyclists. That was my primary focus. To inform these discussions by providing a legal perspective.

Today, he attributes a drop in his 'downtown case load' to the presence of the separated lanes on Hornby and Georgia. ("I've always said that I would be a pretty good person to talk to in terms of the impact of bike lanes on businesses. They've had an adverse effect on my business, which I regard as an extremely happy problem.")

But progress wasn't as clearcut, or progressive policies necessarily in the offing, in the early days of his practice as both a litigator and advisor to the advocacy world and its constituents.

Bike lanes were interesting — when they started painting lines on the roadway. 

You know, they were good from an awareness perspective. They were good from the perspective of somebody trying to do something to recognize that cyclists are sort of unique and need something, in terms of some space in the roadway that they can call their own. I think that was good. 

I never thought they were particularly effective in reducing accidents. In fact, I guess the sad irony I think is that when bike lanes were created, and this may be coincidental, I felt like the volume of my work increased somehow. 

I think there was a sense of complacency, I think that cyclists felt that when they were in a bike lane they couldn't be harmed. And I think that motorists didn't understand necessarily the nature and purpose of bike lanes. 

And I think there was some hostility, which led to some road rage in certain cases. I had a lot of road rage cases. So the intermingling wasn't necessarily too good for cyclists. 

The issues, the risks, the outcomes David has seen — much more tragic than his language, no doubt shaped by the necessity for propriety in the courtroom. He's not a table pounder.

Instead, talking to David, you can see the effect of years of cases, of arguments, of the ambiguity of our laws and the stagnation that forestalls change in favour of those who already have sufficient rights, to be wearying. 

David has better things to do. He could be out there focusing completely on litigation, on people with more assets, more to risk.

Someone else, instead of David, could be leading the Road Safety Law Reform Group on behalf of the Trial Lawyer Association of BC, the BC Cycling Coalition, ands HUB Cycling, a dogged effort to present a compelling case for statutory overhaul of road safety rules and responsibilities.

But who better, after all this time, to force a recognition of changed circumstances on our roads, and the inadequacy of our current system?

Few would argue for anyone other than David.

Whenever you see absurdity in legislation, it needs to be changed, that's all. I don't think anyone is pushing back against that, I think motorists and cyclists alike recognize that it is almost impossible to understand some of the provisions of the Motor Vehicle Act when applied to what a cyclist does. The legislation is old and full of bad memories.

Legislative change is notoriously slow, everyone knows that. But the Motor Vehicle Act is first of all inherently biased against cyclists. It's called the Motor Vehicle Act. That needs to be changed.

That's the first thing we need to do — create a statute for everyone who's using the road.