Canada’s Charter of Rights and Freedoms guarantees “life, liberty and personal security.” Are roadside responders included? We’re about to find out.
It’s early October 2024, and Don Affleck’s company, Peninsula Towing, has had two contact strikes in the span of three days. One was a cone, and one was nearly Affleck himself, “A motorhome just missed me and cleaned its mirror off on the back of the box truck, and they just kept right on going, too.”
Luckily, no one was injured (or killed) this time, but that smashed cone could just as easily have been an employee.
Tow operators are some of the most vulnerable people on Canada’s highways. This is no secret. Tow and recovery professionals are struck, injured, or killed on the job every day. Enter the words “tow truck drivers killed roadside Canada” in a search engine like Google, and you will land on countless stories.
November-December 2024
To stem the carnage, Slow Down, Move Over legislation was implemented years ago, intended to protect the operators of emergency and law enforcement vehicles, as well as tow operators. Unfortunately, many motorists still lack situational awareness, or don’t care, compelling the need for further measures. In B.C., when a driver sees flashing lights, the law requires them to slow down to 70km/h when in an 80km/h or above speed zone, and 40km/h when in an under 80km/h zone.
In an effort to combat the threat to life and limb posed by distracted or inattentive drivers, towing and recovery professionals across Canada (often through their local trade association), have been lobbying for the right to use flashing coloured lights in addition to the amber lights typically found on tow trucks and support vehicles.
There is significant scientific evidence confirming the effectiveness of flashing coloured lights with respect to increasing the visibility of roadside emergency workers, which Tow Canada has reported on repeatedly over the years. A blue lights program for tow and recovery operators in particular have been successfully implemented in Alberta, and Saskatchewan, while in Quebec, tow operators are permitted to use flashing green lights.
Unfortunately, British Columbia appears to be behind the bell curve on this one, and a couple of tow and recovery operators have decided to do something about it.
“Unfortunately, British Columbia appears to be behind the bell curve on this one…”
Meet Don Affleck of Peninsula Towing and Dave LeQuesne of Westshore Towing, both of whom operate on Vancouver Island, B.C. Affleck has been in the business in North Saanich for 35 years, and LeQuesne’s history in the industry also goes back decades. His grandfather, Ernie, established the first towing business in Langford and Colwood back in 1925. Both industry veterans are members of the Automotive Retailers Association, and both have made the pages of Tow Canada before.
Following a number of near misses that nearly ended in tragedy, both Affleck and LeQuesne decided to add a blocker truck equipped with rear-facing red lights to their respective fleets. The blocker trucks greatly improved the roadside safety of their employees and created public awareness in the community. You can read more about the success of this strategy in an article published by Tow Canada in 2020, Blocker Trucks Unblock the Road to Safety.
Note how the red lights mounted on each truck increase their visibility.
Affleck and LeQuesne’s fight to improve roadside safety for tow and recovery operators, roadside workers, and the public, however, has run into a literal roadblock. Despite ample evidence that in addition to the use of amber lamps, the use of flashing red lights improves safety, their use on tow and recovery vehicles in B.C. remains prohibited.
In 2021, both Affleck and LeQuesne were ticketed and charged for using rear-facing red lights on their blocker vehicles, and they ended up before a court over this very issue. While the judge was bound by the law to uphold the fines, the judge was also sympathetic. The decision was published as R v. Westshore Towing and D.R. Affleck Holdings Ltd., 2023 BCPC 91, and Judge Z. Makhdoom wrote as follows:
I agree that the tow-car drivers are faced with multiple hazards and that the Legislature has a duty to protect life and limbs of these workers. Furthermore, I agree that these workers are essential to safe and efficient mobility of individuals and commerce. I’m also mindful of the Legislative efforts at ensuring the foregoing… There is evidence that Mr. Affleck’s son narrowly escaped a real threat to his life while performing his job as a tow-truck driver. Perhaps the Legislature may take such examples of safety concerns into consideration.
Affleck and LeQuesne have been lobbying the Commercial Vehicle Safety and Enforcement (CVSE), WorkSafeBC, and the provincial government, for a long time, since well before 2021. In the past, they have met with various government representatives including the former premier of British Columbia, John Horgan, and Mike Farnworth, the province’s former Minister of Public Safety.
Recently, with the assistance of their barrister and solicitor, Albert Berns, Affleck and LeQuesne sent a formal request for an exemption from MVAR s. 4.02(5) to the CVSE’s director of operators, and they encourage all towing companies in B.C., including BCAA operators, to do the same. The final paragraph of the letter well explains their rationale:
We emphasize the urgency and importance of the matter. In a majority of cases, tow cars are often the first and only professionals to respond to highway accidents. Tow car operators must single handedly halt and divert high-speed traffic to clear an accident, which is hazardous for everyone involved; for those involved in the accident, the tow car operators, and the highway drivers. Especially in inclement weather, rear facing, flashing red lights are not only valuable for promoting public safety but necessary. Finally, we emphasize the public good that tow cars provide in facilitating traffic. Barring any legitimate reasons why tow cars should not have rear-facing, flashing red lights, the MVAR should not restrict tow car operators’ provision of an important public good.
Now, Affleck and LeQuesne and have embarked on a new strategy to get the law changed. They are planning to challenge the current regulation on constitutional grounds, making it a Charter-based challenge.
And what is a Charter challenge?
“The Charter allows individuals to challenge government actions that are believed to violate rights or freedoms… In the past, these challenges have set legal precedents and also inspired significant changes to federal, provincial and territorial laws.
Affleck and LeQuesne’s lawyer, Berns, had this to say about the case:
“Now, this time, we have provided under the Constitutional Questions Act notice that we are challenging the legislation for violating Section 7 of the Charter of Rights and Freedoms, which guarantees ‘the life, liberty and personal security of all Canadians.’ So we interpret that as everyone’s entitled to a safe workplace. That’s the way we’re going to be casting it.”
Needless to say, if this initiative is successful, the entire industry in B.C. will benefit. However, mounting a legal case such as this is no small endeavour, and it’s an expensive one. Affleck has taken on this challenge of his own volition, splitting the costs with a very supportive LeQuesne, and they would deeply appreciate the support of other tow and recovery operators in B.C. who are capable of seeing the bigger picture. Industry support is key to the success of this endeavour.
How can you help? There are two ways.
First, you can send a request to the CVSE for an exemption to MVA s. 4.02(5). As mentioned, a letter template has already been prepared and can be obtained through Affleck, LeQuesne, or their barrister and solicitor, Albert Berns.
Second, you can help by donating towards the legal costs of this case. If you are in the business of towing and recovery, it is in your interests to participate at whatever level you can. It is also Bern’s intention to call upon the party leaders to address this issue as part of the election cycle.
Donations are accepted through Albert Berns Law Corporation (email: berns@sll.ca, phone: 250-381-4040).
You may reach Don Affleck at D.R. Affleck Holdings Ltd/Peninsula Towing via email info@peninsulatowing.ca, or phone 250-656-6911; and Dave LeQuesne at Westshore Towing via dave@westshoretowing.com, or phone 250-474-1369.
Tow Canada will continue to provide updates on this case as it progresses through the courts.