5 years of Ellen's Law bring a shift in culture, calls for tweaks

It's been five years since legislation was enacted making it illegal for drivers to pass cyclists without giving them at least a metre of space.

Advocates and cyclists say it's marked a shift in attitude, with drivers more courteous and aware of the requirement to share the road.

At the same time there remain doubts about whether Ellen's Law was written effectively, and that police are properly enforcing it.

"A little more clarity on the written word in the … Motor Vehicle Act would help substantially with that educational process," said Brian Gillis, a member of Velo NB's lobbying committee.

"And it would also give a little bit more teeth to the law and a little more capability of the police having consistency when they're enforcing it."

Ellen Watters was a rising star in Canadian professional cycling when she was hit by a motorist while on a training ride in Sussex on Dec. 23, 2016. The 28-year-old died of her injuries shortly after in hospital.

Her death sparked rallies and calls from cyclists across New Brunswick for the province to adopt a one-metre rule, which was eventually passed in her name.

A shift in culture

Prior to 2017, it wasn't uncommon for Gillis to experience near misses while cycling around Rothesay where he lives. 

In other instances, he'd be the target of excessive honking from passing drivers.

Since Ellen's Law was enacted, Gillis said he's noticed a difference, with drivers more often giving generous space when passing him on the road.

"There's certainly more awareness with the motor vehicle drivers in the province that they must be cautious when passing a bicycle," Gillis said.

He also believes the specifics of the one-metre rule, giving motorists an actual number, "is helpful as well, so they understand that, yes, it's not just sneaking by."

"You need to give [cyclists] some amount of space."

The same sentiment was shared by Brian Atkinson, despite being the victim of a hit and run while out for a ride in Fredericton last month.

"At least I've noticed that since [Ellen's Law] has been passed … most cars really try and give you a berth, and the gravel trucks and everybody, they're actually giving you more [room when passing]," Atkinson said.

Pushing Ellen's Law further

While the change in behaviour by drivers has been appreciated, Gillis said the legislation that likely inspired it still needs improving.

According to Gillis, Ellen's Law is too vague as it currently stands.

For example, it requires that drivers "pass to the left at a distance of at least one metre from the bicycle" and "shall not return to the right side of the roadway until safely clear of the bicycle."

Gillis said the wording of the legislation should be updated to specify the one-metre rule also applies to any attachments on a vehicle, such as the side mirror, or objects protruding from a trailer.

He said the law should also be amended to specify that it applies even when a cyclist is riding in a bike lane.

Gillis said he's spoken to police officers during consultation meetings who've shared varying interpretations over when the law applies, and he worries that's affecting enforcement.

Without more specific wording, Gillis said he fears police officers are left with mixed interpretations as to when the law is, and isn't being broken.

"We were involved in a cycling safety working committee just after Ellen's Law was completed … and the RCMP officer in attendance said that he would not use, or didn't consider it was necessary to give, the one metre of space when the bicycle was in its own designated area.

"So that's the type of thing that can easily be solved by adding wording."

CBC News asked for an interview with Justice and Public Safety Minister Bill Hogan about possibly amending Ellen's Law, but one was not granted.

Enforcing the law

According to statistics from the Department of Justice and Public Safety, there have been four convictions under Ellen's Law in the province since the legislation took effect on June 1, 2017.

Department spokesperson Judy Desaliers didn't specify whether that number only accounts for convictions by the province's nine municipal and regional police forces, or if that includes those brought by RCMP officers.

Patrick Brown is a Toronto lawyer who represents cyclists who've been involved in crashes with motor vehicles.

He said Ontario's one-metre rule is similar to New Brunswick's, and added it's the enforcement, and not the legislation that needs improving.

"The fact that there's only been four convictions since that law came into place in New Brunswick … tells me that either the charges aren't being laid, or they're being thrown out," Brown said.

"And I suspect it's likely that the charge is simply not being laid, even though it exists on a daily basis, whether it be in Ontario or New Brunswick or any other province."

The RCMP on the other hand, say their officers handed out 16 tickets for violations to Ellen's Law in 2017, 13 in 2018, 14 in 2019 and 17 in 2020, the last year for which data has been compiled.

Those statistics don't indicate whether the tickets resulted in convictions, and Corp. Hans Ouellette, a spokesperson for the RCMP, said he did not have those numbers.

...they have their helmet as per law, but not much else is separating them from the, you know, traffic that's going by that can sometimes be going by pretty quickly.- New Brunswick RCMP Corp. Hans Ouellette

As for enforcement, he said it typically comes down to officers making a judgment call on whether a vehicle has passed a cyclist by closer than a metre, or following up on such complaints from witnesses.

"If they see that [a vehicle] is really too close, that'll be up to the police officer's discretion to then stop the vehicle and, you know, issue a ticket," Ouellette said.

"What's important here I think to highlight is, you know, the safety of the driver and more importantly, the safety of the cyclists.

"You got to think, you're in a car, you're surrounded by lots of metal … but these cyclists, you know, they have their helmet as per law, but not much else is separating them from the, you know, traffic that's going by that can sometimes be going by pretty quickly."