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Is hitchhiking illegal in British Columbia?

Research articles : 
Statutory prohibition against hitchhiking
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Motor Vehicle Act”) regulates highways in British Columbia. Section 182 of the Motor Vehicle Act provides as follows:
 
Pedestrian walking along highway
182 (1) If there is a sidewalk that is reasonably passable on either or both sides of a highway, a pedestrian must not walk on a roadway.
(2) If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.
(3) A person must not be on a roadway to solicit a ride, employment or business from an occupant of a vehicle.
(4) Except for a person who solicits a ride in an emergency situation, a person who contravenes this section commits an offence.
 
Subsection (3) covers hitch hiking and says that a person “must not be on a roadway to solicit a ride”. Therefore, not only is actually putting out your thumb in an attempt to obtain a lift illegal, but merely being on a roadway for the purpose of soliciting a ride is illegal. In other words, just because the police officer does not see you with your thumb out does not mean that you will be able to escape conviction for hitchhiking. If you are standing beside your backpack on a highway onramp in the middle of nowhere, the court will likely infer that you were on the highway for the purpose of soliciting a ride.
 
How do you know if you are on “a roadway”?
Section 183(2) says that a person must not be on a “roadway” to solicit a ride. Roadway is defined in s. 119(1) of the Motor Vehicle Act as follows:
 
"roadway" means the portion of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and if a highway includes 2 or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of them collectively;
 
This definition indicates that “roadways” are objects that are merely part of other larger objects i.e. highways.
 
Consistent with the above definition, the court in R. v Gordon, 2003 BCPC 181 [Gordon] held that the roadway is the portion of the highway that vehicles normally drive on, and that the highway is the larger object comprised of the roadway plus the shoulder:
 
Clearly there is a difference between the shoulder and the roadway which denotes the travel portion of the highway. It is also clear that a highway is more than just the roadway, the travel portion.
 
The Canadian Oxford Dictionary, Oxford University, Press Canada 1998, defines "shoulder" with respect to highways as:
"shoulder" a strip of ground bordering a road, where vehicles may stop in an emergency.
I find that the shoulder of the highway is, in its ordinary meaning, part of the highway. Further, I find that the shoulder is also included in the definition of "highway" found in the Motor Vehicle Act by virtue of being a place used for the general public for the passage of vehicles, albeit in a limited way such as when pulling over to stop in an emergency as well as being a place the public has access to for parking or servicing vehicles, and in the definition of "highway" found in the Highway Act as part of "any other public way".
(Gordon at para. 11-15).
 
The foregoing suggests that hitchhiking may not be illegal so long as one is on the shoulder (and therefore on the highway, but not the roadway) when attempting to obtain a ride.
 
If the purpose of the rule against hitchhiking it to prevent pedestrians hanging about on dangerous highways trying to get rides, this rule seems under inclusive. Nevertheless, persons charged with hitchhiking may want to present this argument as a defence if they were standing on the shoulder when the police officer saw and approached them.
 
How do you know if you are on a “highway”?
The definition of roadway set out above incorporates the definition of highway i.e. it is not a roadway unless it is part of a highway. Therefore, hitchhiking is not prohibited by s. 182(3) unless it is done on a highway. So how do you know if you are on a highway? Section 1 of the Motor Vehicle Act defines “highway” as follows:
 
"highway" includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
 
Part (b) of the definition captures the essence of what types of roads are highways i.e. they are roads used by the general public. The definition of “highway” in the Transportation Act, S.B.C. 2004, c. 44, referred to in part (a) of the definition above, confirms this general principle: 
 
"highway" means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by [an official act of government]
 
The general effect of these two definitions for “highway” is that all public streets, roads, trails, lanes, bridges, trestles, tunnels, ferry landings, ferry approaches and other public ways will all be “highways”.
 
Roads that are excluded from the definitions of highway are industrial roads, and private roads.
 
According to s. 1 of the Motor Vehicle Act, "industrial road" means: industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8(1) of the Petroleum and Natural Gas Act. In other words, industrial roads are roads on Crown or private land that are not ordinarily used by the general public.
 
Private roads that are not ordinarily used by the general public are not highways within the definition in the Motor Vehicle Act. The following cases clarify the distinction between public roads, which are highways, and private roads, which are not:
o       In R. v. Sport (1971) 3 C.C.C. (2d) 477 a road on an Indian reserve was found to be a highway because the court held that the Indian Band had extended an invitation to the general public to use the road for access to commercial ventures within the reserve. 
o       In Galligos v. Louis, (1986) 33 D.L.R. (4th) 638 (B.C.C.A.) a logging road on an Indian Reserve was found to not be a highway. Although there were no physical barriers to public access, there was a “private” at the start of the road and the road was used by the Indians for purposes incidental to the ownership of the property, and not by the general public for their own purposes. 
o       In Dechant v. TNL Equipment Ltd., [1998] B.C.J. No. 2219 (S.C.) (QL) a road, named “Camp Road”, leading to a series of trailers used by workers constructing a highway was found to not be a highway. The court found that Camp Road was not designed or intended for use by the general public, and the public was not invited to nor had access to Camp Road. Camp Road was only for the use of the persons living in the trailers in the camp at the end of the road, and was not a highway.
o       In R. v. Bigeagle (1978), 43 C.C.C. (2d) 528 (Sask. C.A.) a road on an Indian reserve was open to the public and was found to be a highway.  
o       In I.C.B.C. v. Routley (1994), 98 B.C.L.R. (2d) 385 (S.C.) aff’d (1995) 14 B.C.L.R. (3d) 279 (C.A.) an abandoned railroad bed which had been used by the general public for various activities was held to be highway.  
o       In R. v. Fox (1979), 5 M.V.R. 151 (Alta C.A.) a road on a reserve which was marked with no trespassing signs was found not to be a public road, and therefore not a highway.
o       In R. v. Wong, (1997) 29 M.V.R. (3d) 194 (B.C.S.C.), Romilly J. held that a ferry was a highway as its deck was a passageway used by the public through a right of access for the purpose of parking of vehicles.
 
The “not on the roadway” defence will not work on schedule 1 highways
In the section above it was suggested that the prohibition against hitchhiking imposed by section 182(3) might be avoided by standing on the shoulder such that one was on the “highway”, but not the “roadway”.  However, that argument could not be used for schedule 1 highways because according to s. 19.07(1)(d) of Motor Vehicle Act Regulations, B.C. Reg. 26/58 pedestrians are not permitted to be on schedule 1 highways:
 
19.01 (1) Except as authorized by a permit issued by the Minister of Transportation and Infrastructure, and except for crossing a highway at an intersection, use of any highway named in Schedule 1 by the following is prohibited at all times:
(a) vehicles drawn by animals;
(b) livestock, as defined in the Livestock Act;
(c) farm implements and farm machinery, whether self-propelled or towed;
(d) pedestrians, unless attending a disabled vehicle;
(e) vehicles incapable of maintaining a minimum speed of 60 km/h on level road, except construction or maintenance equipment owned or hired by the Ministry of Transportation and Infrastructure while working on or travelling to or from a worksite located on a highway named in Schedule 1.
(2) Subsection (1) does not apply to pedestrians and to operators of pedal cycles and limited speed motorcycles using footpaths constructed adjacent to the travel portion of the highway or the shoulder on the travel portion of the highway where the minister causes signs to be erected designating the footpath or shoulder for such permitted use.
 
Section 19.01 lists the following as Schedule 1 highways:
 
(1) Trans-Canada Highway #1 from the ferry terminal at Horseshoe Bay to the north approach to the Ironworkers Memorial Second Narrows Bridge; from its intersection with Rupert Street to its junction with Route #3 in Hope; from its junction with the Coquihalla Highway (Afton Interchange) on the west approach to Kamloops to its junction with the Yellowhead Highway on the east approach to Kamloops.
(2) Hope-Princeton Highway #3 from its junction with the Trans-Canada Highway in Hope to its junction with the Coquihalla Highway, 7.7 km east.
(3) Coquihalla Highway #5 from its junction with the Hope-Princeton Highway, 7.7 km east of Hope to its junction with the Trans-Canada Highway (Afton Interchange) on the west approach to Kamloops.
(4) Annacis Highway #91 from its interchange with the Vancouver-Blaine Highway to the south approach to the Annacis Bridge; from the north approach to the Annacis Bridge to the south approach to the East Channel Bridge; from the north approach to the East Channel Bridge to the Richmond Connector.
(5) Annacis Highway #91A from the Richmond Connector to the south approach to the Queensborough Bridge.
(6) Vancouver-Blaine Highway #99 from 1st Avenue in Surrey to the south approach of the Oak Street Bridge.
(7) Okanagan Connector Highway #97C from its junction with Highway 5A to its junction with Okanagan Highway 97, a total distance of approximately 84 kilometres.
(8) The Inland Island Highway 19 from Craigs Crossing south of Parksville to its intersection with Highway 19A at Willow/Tamarac in Campbell River.
(9) Highway 19 from its North Cedar Road intersection with Trans-Canada Highway 1, south of Nanaimo, to its intersection with Highway 19A north of Nanaimo.
 
What is the penalty for hitchhiking?
Section 2 of the Offence Act, R.S.B.C. 1996, c. 338 (the “Offence Act”) provides that offences under British Columbia enactments are punishable on summary conviction. Section 4 of the Offence Act is titled “General penalty” and provides that unless noted otherwise “a person who is convicted of an offence is liable to a fine of not more than $2,000 or to imprisonment for not more than 6 months, or to both.”
 
Section 132(2)(d) of the Offence Act provides that fines for contraventions of enactments can be established by regulation. The Violation Ticket Administration and Fines Regulation, B.C. Reg 89/97 specifies the penalties for many Motor Vehicle Act offences, but not for s. 182(3). Therefore, the general sentencing provision applies and the penalty that would be applied is somewhat uncertain.
 
Although the maximum fine under the general penalty provision is $2,000, the fine for a first offence would likely be much more than for failure to obey a red light at an intersection, for which a fine of $142 is specified.
 
Conclusion
The foregoing indicates that hitchhiking generally illegal on schedule 1 highways, but is arguably only illegal on other highways if it is done on the part of the highway that vehicles ordinarily drive on i.e. the roadway, and not the shoulder.
 
Section 182(3) is referenced in few reported cases, and those are generally personal injury cases where hitchhikers have been run over by cars, and then received reduced damages because they were not supposed to be hitchhiking in the first place.