Is It Against the Law to Pass Another Vehicle By Using the Unpaved Shoulder?
Using An Unpaved Shoulder to Pass On the Right Violates Section 150 of the Highway Traffic Act. The Applicable Fine May Be Up to $1,000 Plus Victim Surcharge and Court Costs. A Guilty Driver Will Also Receive Three (3) Demerit Points and Possible Insurance Rate Increases.
Understanding the Restrictions Against Passing On the Right of Another Vehicle Including a Left Turning Vehicle
A driver that attempts to pass to the right side of another vehicle by using an unpaved shoulder creates a significant risk of an accident that could involve serious injuries or death, to the driver, to passengers, to other motorists, to pedestrians, to bicyclists, and to others; and accordingly, the law frowns on such conduct.
The prohibition against using an unpaved shoulder to pass another vehicle on the right, including another vehicle that is stopped and waiting to make a left-hand turn, is found in section 150 of the Highway Traffic Act, R.S.O. 1990, c. H.8, which specifically states:
Passing to right of vehicle
150 (1) The driver of a motor vehicle may overtake and pass to the right of another vehicle only where the movement can be made in safety and,
(a) the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn;
(b) is made on a highway with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction; or
(c) is made on a highway designated for the use of one-way traffic only.
Driving off roadway prohibited
(2) No driver of a motor vehicle shall overtake and pass another vehicle by driving off the roadway.
Non-application of subs. (2)
(a) a motor vehicle overtaking and passing to the right of another vehicle where the shoulder to the right of the roadway is paved and the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn;
(b) an ambulance or fire department vehicle;
(c) a police department vehicle or a vehicle being driven by an officer appointed for carrying out the provisions of this Act;
(d) a tow truck where the driver is responding to a police request for assistance;
(e) a road service vehicle; or
(f) a motor vehicle overtaking and passing to the right of a road service vehicle or road-building machine where a person apparently employed by or on behalf of the authority that is engaged in the highway maintenance operation has directed the driver to pass it and the movement can be made in safety.
The charge of passing on the right via an unpaved shoulder carries potential penalties as prescribed in section 214 (1) d of the Highway Traffic Act, which states:
214 (1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $1,000.
Additionally, a convicted driver receives three demerit points and may also face adverse affects to insurance rates.
A passing on right of vehicle charge, although generally treated as a minor offence, may still pose serious concern, especially in circumstances where the charge arises from an accident where people were injured and civil liability issues may be involved. Additionally, concerns may arise for a driver with a poor record due to a history of previous convictions and thus the driver is on the cusp of a licence suspension or significant consequences to insurance rates.
When defending a passing right of vehicle charge, during the examination phase of the court trial, meaning during questioning of the witness for the prosecution, who is most likely a usually a police officer who laid the charge, questions can be posed which help to diminish the strength of the testimony by the police officer. Questions that can help diminish the strength of testimony may include asking the police officer, or other witnesses:
- To state how far away the police officer was when the alleged observations were made;
- To state where the alleged passing on the right incident occurred;
- To state whether the vehicle in front that was turning left stopped suddenly;
- To state whether the vehicle in front that was turning left signalled properly;
- To state details about the width of the roadway at the place where the passing on the right incident allegedly occurred;
- To state details about what the construction materials are for the roadway at the place where the passing on the right incident allegedly occurred;
- To state other facts that may be relevant as may be determined upon review of the evidence, among other things.
Accordingly, putting up a strong fight, by knowing what to ask during witness examinations as well as knowing what to avoid asking, may be wise and necessary.
Upon a finding of guilt for unlawful passing on the right of another vehicle, a driver may be fined up to $1,000 plus victim surcharge and court costs. A driver will also receive three (3) demerit points and may receive insurance rate hikes.