This winter, Ontario will change the Highway Traffic Amendment Act (Bill 194) to exempt Sikh motorcyclists from the requirement to wear a helmet in order to honour their civil rights and religious expression.

Courts across the country have debated whether mandatory helmet laws infringe the Charter of Rights and Freedoms and/or the Ontario Human Rights Code. But as a personal injury lawyer, I also wonder about the associated financial risks, and by whom they should be assumed, when Bill 194 is passed?

While religious freedom ought to be respected, is it fair to distribute the cost of that freedom to the rest of the population?

According to motorcycle safety expert, Raynald Marchand of the Canada Safety Council, helmets can reduce head injuries by as much as 67 per cent and death by 37 per cent.

Currently, section 104 of the Highway Traffic Act requires persons riding or operating a motorcycle or motor assisted bicycle on a highway to wear a helmet. Once passed, however, Bill 194 will exempt the following persons from this requirement:

(a) Members of the Sikh religion;

(b)  Individuals with has unshorn hair; and

(c)  Individuals who habitually wear a turban composed of five or more square meters of cloth.

I’ve had too many clients suffer serious and catastrophic injuries on motorcycles even with protective gear. These injuries require a lifetime of expensive, and extensive care funded by taxpayers through OHIP and contributors of private insurers.

The financial impact does not stop there. The victims must account for loss of income from the inability to work and the emotional and financial strain on their families who must now take on demanding care giving roles.

If we follow the logic provided by the statistics, Bill 194 will increase the incidence of serious motorcycle accident injuries and therefore place a further financial burden on both public and private health insurance plans.

I am curious, what insurers will do in response? Will policies have exclusion clauses for those who choose to ride without helmets? Will premiums rise for those who indicate they intend to ride without a crash helmet?

Further down the line in litigation, it will be more of a challenge to dismiss the arguments of insurers who demand a discount in paying compensatory damages to riders. Contributory negligence is an argument that is available to defendants if they can prove that the plaintiff’s own actions (i.e. failing to wear a helmet) in some way contributed to the severity of the plaintiff’s injuries.

We certainly live in interesting times where there is a lot for law makers and the courts to consider and defend. Wherever you stand on this debate, DRIVE SAFELY.

Michelle Arzaga, is a personal injury lawyer at Pace Law Firm with expertise in litigating claims on behalf of pedestrians, cyclists and motorcyclists seriously injured from accidents with motor vehicles. She can be reached at .