Tuesday, November 27, 2012

Could Peter Kelly have gone the way of Rob Ford?

With the news of Rob Ford's removal from office in Toronto for conflict of interest, some Haligonians have been asking themselves whether the same thing could have happened to former mayor Peter Kelly.  With Kelly having chosen not to run in the last election, it's something of a moot point, but an interesting question about conflict of interest nonetheless.

The question refers to the cash for concerts scandal, during which Mayor Kelly was accused of having contravened the HRM Charter by signing off on a loan to a private concern promoter, an arrangement which was kept secret from council.  The scandal only came to light when the promoter failed to repay the loan, and resulted in the resignation of HRM CAO Wayne Anstey.  However, Kelly refused to step down as mayor despite calls for his resignation.

But it's what happened next that raises the potential conflict of interest.  The Auditor General's report on the scandal was tabled at council on June 14, 2011.  At that meeting, council decided against a motion to hold an inquiry into the matter.  At the subsequent meeting on June 21, 2011 council heard and defeated a motion to censure Kelly and suspend him as mayor for a week for his role in the scandal.

While some informed observers at the time suggested that Kelly would have to be removed as presiding officer at June 14, 2011 debate, I am told that Peter Kelly refused to step down from his position as chair of the council meeting at either meeting, despite the fact council was considering motions to conduct an inquiry into his behaviour, and ultimately to censure him. 

Mayor Kelly did decline to chair a subsequent meeting discussing the cash for concerts scandal in May 2012.  However, he referred to his refusal to chair as a "perceived conflict of interest" rather than a contravention of the Municipal Conflict of Interest Act.  Had there been a conflict of interest under the MCIA, Kelly would not only have had to resign the chair, but remove himself from the debate on the issue altogether.

By contrast, Rob Ford initially got in trouble for using his position (and his letterhead) as a city councillor to solicit donations to his private charitable foundation.  He was found by the city's ethics commissioner to be in breach of the Toronto city council's code of conduct and ordered to repay the money.  When the ethics commissioner's report came before council in 2010, despite being warned he was in conflict of interest, then councillor Ford chose to participate in the debate.  Mr. Ford refused to repay the amount as ordered.  The issue came before council in 2012, and despite again being warned of his conflict of interest, Mr. Ford spoke to and voted in the debate.  Council ultimately overturned the previous ruling and did not require Ford to repay.

An application was brought by a citizen of Toronto to have Mr. Ford dismissed as mayor.  In a detailed ruling released on November 26, 2012, Justice Hackland found that Mr. Ford was guilty of a conflict of interest, that Ford's actions were not the results of inadvertence or a good faith error, and that Ford must therefore be removed as mayor, although he was not barred from running for office again.

It would be impossible  to speculate on how a Nova Scotia court might have ruled on the conflict of interest in the Kelly situation.  There are some obvious factual differences between the two cases.  Rob Ford's removal did seem to turn in part on fact he was advised he was in conflict of interest, and chose to disregard.  It is not clear of whether Kelly was advised of his conflict of interest, and what role (if any) that played in his decision.  In addition, the Act is limited to direct of indirect "pecuniary" (i.e. financial) interests.  In Ford's case, the financial interest was clear: he would otherwise have been required to repay the donations.  In Kelly's case, the financial interest is a little less clear.  Kelly would not have had to repay the concert loan, although it is possible an inquiry might have resulted in charges for breaches of the Charter, including fines, or that a suspension would have entailed loss of salary, either of which would constitute a pecuniary interest.

A further reason it is hard to speculate is that the Ford decision may well be appealed, and we might get a different statement of the law from a higher court.

What I can say is that Nova Scotia's Municipal Conflict of Interest Act is nearly identical to the Ontario MCIA under which Rob Ford's was removed.  So where a mayor, councillor or municipal committee member is in a conflict of interest (as defined in the Act), it would be open to a citizen to bring an application to have that person removed from office.  And while a Nova Scotia court would not be bound to follow the Ford ruling, it would certainly have to consider it, given the similarities between the pieces of legislation.

The Act has its exclusions and defences, so removal is certainly not guaranteed.  However, where a conflict of interest occurs, Haligonians have the same accountability tool available to us as the people of Toronto.  All it requires is  one bold citizen prepared to prosecute the case.

Monday, November 26, 2012

Crosswalk Safety: Part 3: Community Crosswalks

I was pleased to learn this weekend that the traffic authority has made the decision re-install a crosswalk they had recently removed at Prince Albert Road in Dartmouth.  This is actually the crosswalk that originally brought the issue of crosswalk removals to my attention.  It is in my neighbourhood, and I learned the hard way it had been removed while out for a walk with my one year old son a few weeks ago.  We arrived at the crosswalk to discover that while the sign was still there, the lights and markings were gone.  It left an extremely precarious situation.  The sidewalk ends abruptly at this location, and the closest marked crosswalk is three blocks away.   The crosswalk is frequently used by the nearby MicMac Aquatic Club, and during events at Lake Banook.  Cars often park on the shoulder here and cross the road to get to events.

Apparently the authority had underestimated the amount of pedestrian traffic at the intersection, a fact that was brought to their attention by the Club, and by councillor Gloria McCluskey.

As suggested in my last post, this raises a question about whether the traffic authority may have got their pedestrian counts wrong at other removed crosswalks as well.

It also points to the need for more community involvement in decisions regarding placement of crosswalks, for at least a couple of reasons.

First of all, the community will be in a better position than HRM staff to observe the level of pedestrian traffic, and identify the peak crossing times that have to be measured in order for the authority to apply their standard of twenty crossings an hour at peak hours.  The community can actually assist the traffic authority in doing their job.  In this case, had the traffic authority consulted with the community before removing this crosswalk, they would have avoided the cost of removing the crosswalk, and the added cost of having to re-install it.

Second, the community will also be aware of other factors that the traffic authority may want to consider, such as high numbers of seniors or children in the area, large distances to other crosswalks, and other considerations that may make the removal particularly dangerous, as it was in this case.

At the end of the day, the current process gives the community too little input into where crosswalks should be placed and removed.  This has created the current conflict, and led to a number of dangerous situations where crosswalks have been improperly removed.  The traffic authority needs to find a way to involve the community in its decision-making process regarding placement of marked crosswalks.  This way we can all ensure that safety is being put first.

Thursday, November 22, 2012

Crosswalk Safety: Part 2: Taking Charge

I woke to the sad news this morning that yet another pedestrian was killed in an accident in a marked crosswalk last night.  It's another reminder of why better education and enforcement is needed.

In my last blog post, I talked about some of the other recent crosswalk accidents in Halifax, some of the legal responsibilities of drivers and pedestrians, and made a few suggestion as to what could be done to improve crosswalk safety from a legal standpoint.

In this post, I talk about the government officials in charge of crosswalks.  They have been back in the news due to the recent decision by the traffic authority to remove a number of marked crosswalks in the HRM.   The removals, and the lack of notice to the public prior to removal, have resulted in a backlash in the community.  This raises questions about who is responsible for crosswalks, and how they make their decisions.

Why are marked crosswalks important?

As stated in my last post, the Motor Vehicle Act ("MVA") provides for both marked and unmarked crosswalks, and provides that basically every intersection has a crosswalk, whether it is marked or not. 

There is some debate over whether marked crosswalks improve pedestrian safety.  A controversial 1972 study suggested that marked crosswalks actually increased the likelihood of accidents.    However, a more recent study suggests that while marked crosswalks alone may not improve safety, when combined with better engineering, enforcement, education and other improvements, they can enhance safety.  They can also assist in channeling pedestrians to safer crossing locations.

Personally, I can say from experience that while most drivers will stop for pedestrians at a marked crosswalk, far fewer stop for pedestrians at unmarked crosswalks.  Thus, marked crosswalks are essential in providing safe and convenient places for pedestrians to cross the road.

Who is in charge of creating marked crosswalks?

Under section 90 of the MVA, the "traffic authority" has the power to establish crosswalks with markings and other devices at intersections "where, in his opinion, there is a particular danger to pedestrians ... and at such other places as he may deem necessary."  In other words, the traffic authority has broad and pretty much unfettered discretion as to where to establish marked or signalled crosswalks, although danger to pedestrians appears to be the overriding concern.  

Who is the traffic authority and who does he report to?

While there is both a municipal and a provincial traffic authority, under s. 86 of the MVA, it is the municipal traffic authority who has primary responsibility for most roads in the HRM.  Regional council appoints a municipal official as the municipal traffic authority, in this case Ken Reashor, who is also HRM Director of Transportation and Public Works.  The regional council also has the power to remove him (implied by s. 18 of the Interpretation Act).

However, the provincial Minister of Transportation has the power to remove the municipal traffic authority and appoint a replacement if it appears to the Minister that the traffic authority is not carrying out it's duties.   

The fact that different levels of government can appoint and remove the traffic authority creates slightly convoluted lines of authority for the traffic authority, described in more detail here.  This has created confusion about who the traffic authority reports to, to the point where I have had regional councillors assure me (with honest belief, but incorrectly it seems) that the HRM traffic authority is actually accountable to the Province, not to regional council.

The traffic authority is supposedly meant to enforce the MVA without "political interference" from regional council.  However, as mentioned above, the traffic authority has broad discretion in some areas, including crosswalks.  This combination of broad authority, lack of political interference and unclear lines of authority means the traffic authority has a great deal of power with very little accountability to the community he serves.

In this case, The Minister of Transportation, Maurice Smith, has made clear that he considers decisions regarding crosswalks to be a municipal matter and will not interfere.  However, MLA and former councillor Andrew Younger makes the point that the province is certainly able to amend the MVA to create a process that allows for more citizen input.  I would point out that the province could also amend the MVA to limit the traffic authority's discretion, and make clearer what factors he should consider in deciding where to place crosswalks.  I would argue it would also be open for regional council to set guidelines, factors to consider or criteria for the traffic authority to apply when appointing the traffic authority. 

How does the traffic authority make decisions about where to place marked crosswalks?

Residents have been critical of the decision to remove crosswalks without community input, and without regard to the needs of the community, notably in neighbourhoods with many children or seniors.  In response to the criticism, Ken Reashor, the traffic authority, suggested that decisions regarding placement of crosswalks is based on "what is safe", and not political pressure.  Indeed, safety is the only consideration the MVA requires him to consider. The authority claims he is only having crosswalks removed where they fail to meet the national standards of the Transportation Association of Canada20 crossings per peak hour.

The application of this standard is the result of the 2007 final report of the crosswalk safety task force, which recommended that municipalities should use a consistent approach in the installation of crosswalks "based on technical merit".  The task force also recommended that existing crosswalks be re-assessed when roads are re-furbished, and that "where existing marked crosswalks are not warranted, they must be removed due to potential safety hazards".

Obviously safety is not the only consideration.  In an interview, the HRM's deputy traffic authority, Taso Koutroulakis talks about the removals, and makes clear that not delaying vehicle traffic is an important consideration as well.

While it is possible he was selectively quoted, I notice that nowhere does Mr. Koutroulakis mention the importance of pedestrian traffic flow.  Nor does he mention the large inconvenience that may result to pedestrians by having to walk farther to crosswalks, which may prove to be an obstacle for people with mobility issues, not to mention children and seniors.  While marked crosswalks should not necessarily be placed too close to intersections, they also shouldn't be placed too far apart.

The application of the standard raises some questions about how and when crossing are being measured.  How often are HRM staff going out to take measurements, and are they catching peak crossing times, which vary from location to location?

It also raises a more fundamental question about the appropriateness of the standards themselves.  As this article by a recovering engineer suggests, standards reflect the priorities of traffic engineers, and may not reflect the priorities of the community.  Standards like the one being applied here are guidelines that are meant to enable us to achieve our priorities.  It's important we discuss those priorities, what relative weighting they be given, and not mistake the standards themselves for priorities. If 20 crossings per hour becomes the goal, instead of safety, convenience, and so forth, then we have misplaced our priorities.

It's also a reminder that traffic engineering is more art than science.  More than almost any branch of engineering, it requires engineers to make decisions based on assumptions about human behaviour, rather than scientific properties and principles.  Human behaviour is inherently unpredictable, and the law of unintended consequences applies.  We should constantly be reviewing our standards to make sure they are actually promoting the kind of safe behaviours we desire.

Where does that leave us?

I'd close with a few recommendations.  First of all, I think the lines of authority for the traffic authority need to be clarified.  Regional council needs to be given the power to remove the traffic authority as well as to appoint.  Second, either province or the council needs to set some clearer criteria or guidelines around how the authority's power over crosswalks should be exercised.  While the decision should not be political, elected representatives should be able to identify the community's priorities, and make sure those are taken into account in how the authority makes decisions.  Third, when removals are being made, notice should be given to the community, and an opportunity to present reasons why the crosswalk should be maintained.  Fourth, where crosswalks are deemed to be unsafe, enhancing safety through signals and other engineering measures should be considered instead of just removal.  Finally, as I stated in my last post, better education and enforcement is needed to make all crosswalks, marked and unmarked, safer for all users of the road.

Monday, November 19, 2012

Crosswalk Safety: Part 1: When Everyone's Responsible, No-One's Responsible

Crosswalk safety has been back in the news  recently for a couple of reasons.  First, the last year in Halifax has seen a number of accidents involving pedestrians that have resulted in serious injury and even death.  A few examples include:
The second reason crosswalk safety has been in the news is the recent decision by the Traffic Authority to remove a number of marked crosswalks in the HRM.  (I will address this in more detail in my next blog post.)

Although the two are not directly connected, they do seem to illustrate a larger disconnect between decisions regarding crosswalks and the on-the-ground reality that drivers and pedestrians are facing.  We are repeatedly told that crosswalk safety is everyone's responsibility: drivers, pedestrians and all users of the road alike.  Yet at the end of the day, who is really responsible?

What is a crosswalk?

A crosswalk is defined in section 2(h) of the Motor Vehicle Act (the "MVA") as: "that portion of a roadway ordinarily included within the prolongation or connection of curb lines and property lines at intersections or any other portion of a roadway clearly indicated for pedestrian crossing by lines or other markings on the surface".  In other words, crosswalks can be marked or unmarked.  And since most intersections in HRM have some gap between curb and property lines, and its not possible to tell where there is one, it is safe to assume that basically every intersection is a crosswalk whether it is marked or not.  

An intersection is anyplace where two roads (be they highways, alleys, or anything in between) join each other at an angle, whether or not one highway crosses the other.   So this applies at T-junctions as well as four (or more) way intersections.

Who has to stop for whom at crosswalks?

The MVA has a number of rules around crosswalks, including at intersections with traffic signals (see s. 93).  Section 125 of the MVA deals with intersections where there are no traffic signals, and states "the driver of a vehicle shall yield the right of way to a pedestrian lawfully within a crosswalk or stopped facing a crosswalk".  In other words, as a driver, you are not only expected to stop for pedestrians already in a crosswalk, but also where a pedestrian is stopped and waiting to cross.  Remember, that responsibility applies whether at a marked crosswalk, or at any intersection without signals.

This section of the MVA goes on to place some responsibility on pedestrians as well, stating that "A pedestrian shall not leave a curb or other place of safety and walk or run into the path of a vehicle that is so closely approaching that it is impractical for the driver of the vehicle to stop."  So as a pedestrian, while cars should be stopping for you at crosswalks, that doesn't mean you should be running out in front of them.  The section goes on to say that at crosswalks with pedestrian beacons, the pedestrian shall not leave the curb until the beacon is activated, and that a pedestrian crossing a road other than in a crosswalk has to yield to vehicles.  The Act also provides that none of the above relieves either drivers or pedestrians from exercising "due care".  

What are the penalties?

Failure to obey this section of the MVA can have very serious consequences for both drivers and pedestrians, including a fine of $687.41 on conviction.  Of course failure to obey these laws often results in serious injury or death for the pedestrian, regardless of who is at fault.  As such, it is incumbent on both pedestrians and drivers to be extremely careful at crosswalks, whether marked or unmarked.  

So what's the problem?

In spite of the penalties and the obviously serious consequences, the number of serious accidents above would suggest that many Haligonians (pedestrians and drivers alike) are not taking crosswalk safety seriously enough.  

I use many crosswalks daily, and while most drivers are respectful of marked crosswalks, more days than not I see someone ignore a marked crosswalk altogether.  Most of the accidents described above took place at marked crosswalks.  Further, most drivers seem to be completely unfamiliar with the obligation to stop at an unmarked crosswalk.  Not infrequently, I also see pedestrians entering crosswalks in an unsafe manner.  

Better public education is needed to clarify the rules of crosswalks.  In particular, people need to be made clear on the fact that every intersection is a crosswalk, and that drivers do need to yield to pedestrians, whether they are in the road, or waiting to cross.  However, pedestrians need to be reminded that having the right of way does not mean they should enter the road in an unsafe manner, and they should not be doing so where it is impractical for a driver to stop.

One could also argue that stiffer penalties might be needed.  While a $650 ticket seems like a hefty price for a moment's inattention, it remains a relatively small price compared to a human life, which is often the cost of inattention.

However, laws are only effective if enforced, and I think there has been a lack of attention to enforcement of crosswalk rules.   We should not have to wait for someone to get hit in order for someone to be ticketed, and if someone is hit, other charges beyond failure to yield should be seriously considered.  At the end of the day, clear rules, properly and consistently enforced, are the only way to make the roads safe for all users.

(In my next post, I will talk about the government's role in crosswalk safety, and in particular, the recent decision by the traffic authority to remove several crosswalks in the HRM.)