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A pedestrian walks a crosswalk painted in a 3-dimensional style for a pilot project, in the Montreal borough of Outremont in July, 2018.Ryan Remiorz/The Canadian Press

I’m having a disagreement with a friend. He believes that if pedestrians cross when the hand is flashing red, they are in the wrong and he has the right of way. Even though the pedestrian is being a jerk by crossing at the last second, I believe the pedestrian still has right of way. – Michelle, Vancouver

The pedestrian might be in the wrong, but since you’re the one cocooned in tons of metal, you still have to stop – if you can.

“The pedestrian should have stopped and waited – but that doesn’t give a cyclist or vehicle carte blanche to run into them,” said Const. Jason Doucette, Vancouver police spokesman. “If the vehicle has time to stop, then they have to make an effort to stop.”

The Oxford English Dictionary defines right of way as the “legal right of a pedestrian, vehicle or ship to proceed with precedence over others in a particular situation or place.”

In British Columbia, the law says that when the hand appears – like it does during the countdown – pedestrians must not enter the road. And, it says anyone who was already crossing must get to the other side as quickly as possible and “has the right of way for that purpose over all vehicles.”

That means that if you start crossing after the countdown started, you don’t have the right of way – technically, at least, said Kerry Grieve, a Vancouver personal injury lawyer.

“If a statute tells you not to do something, you won’t have the right of way, per se,” Grieve said.

“But as a driver, it doesn’t matter in the least whether the pedestrian has right of way – if you can avoid hitting them, you have to avoid hitting them.”

Not a magic shield

Sure, the right of way might matter when deciding who turns at an all-way stop, but Grieve said the it’s, to some extent, “a meaningless concept” when it comes to determining how you should drive – or how you should cross the street.

If you’d started crossing before the countdown and got hit because 'another driver did something stupid that you couldn’t see coming,' you might get 100 per cent of damages.Kevin Van Paassen/The Globe and Mail

“Regardless of who has right of way, you have the overriding duty to look out for yourself and others,” Grieve said.

As a pedestrian, it won’t protect you from getting hit. But right of way will determine whether you could get a ticket and, if you’re hit, how much a settlement you might get in a lawsuit.

For instance, if you’d started crossing before the countdown and got hit because “another driver did something stupid that you couldn’t see coming,” you might get 100 per cent of damages.

“But if you stepped out on that white walk sign and a vehicle was approaching and everybody else saw it and you should have seen it – you might be considered partially at fault,” Grieve said.

If a pedestrian darted out and a driver couldn’t reasonably stop, the pedestrian might be deemed 100 per cent at fault and not get any cash at all.

And, even if you’ve got the signal to cross, you could lose your right of way if you’re “lollygagging” – if you stop to text or chat with friends, say, and don’t get across as quickly as you could, Grieve said.

Drivers might not see you

The laws are similar in most provinces. Regardless of the right of way, drivers must yield to pedestrians – when they can.

That’s true in Quebec too, but the countdowns work differently there – the countdown starts with the white walk symbol and, generally, you have right of way until the countdown ends

“It would be nice if you could just trust [right of way] without question, but, for your safety, you have to make sure you’re being seen,” said Sgt. Daniel Thibaudeau, Sûreté du Québec spokesman. “We encourage drivers and pedestrians to make eye contact – that simple act can prevent tragedy.”

In Vancouver so far this year, there have been four pedestrians killed by cars.PETRAS MALUKAS/AFP/Getty Images

In Vancouver so far this year, there have been four pedestrians killed by cars. In the city over the five years from 2013-2017, 700 pedestrians, on average, were hit by cars each year. Across B.C., on average, 56 pedestrians were killed and 2,500 injured each year over that same time.

“A lot of [pedestrians] get hit when they have the right of way and are doing the right thing and drivers have failed to see them,” said Kay Teschke, professor emeritus at UBC’s school of population and public health. “When drivers are turning left or right, they’re looking for other vehicles and not looking for pedestrians or people cycling – they look but fail to see.”

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