Motorcyclist avoids conviction of traffic offence because judge deems evasive action a necessity

The actions of a young motorcyclist who t-boned a Toyota Prius on Highway 28 west of Campbell River and was charged with crossing a double yellow line were involuntary but necessary, a judge has ruled.

The 16-year-old motorcycle driver suffered eight breaks to his femur, five to his wrist, damage to his vertebrae and jaw, and a fractured skull causing a severe concussion. He also fell into a coma for five or six days in a Victoria hospital.

He was charged under the Motor Vehicle Act with two offences not directly related to the collision but based on information gathered during its investigation, Judicial Justice Hunter Gordon said in his reasons for judgment handed down Feb. 21 in a hearing in Campbell River but made available to the public last week. The motorcyclist was charged with driving contrary to a restriction on his driver’s licence contrary to section 24(15) and crossing a solid double line contrary to section 155(1)(a)

“I find that given the speed of (the) motorcycle at the point of perception, the close proximity to the Prius and the Prius’ unexpected movement, he had no reasonable legal alternative to cross(ing) the solid double line in order to move farther from the Prius on his right to avoid an imminent collision,” Justice Gordon says.

The case illustrates the legal principle that “liberal and humane law” can’t hold people to the strict obedience of laws in emergency situations that threaten self-preservation or altruism.

“Such acts are still wrongful,” the judge quotes a legal precedent (R.v.Perka), “but in the circumstances, they are excusable.”

On May 31, 2015, the driver, who cannot be identified due to his age, ran into a Prius that had begun turning right off Highway 28 onto McIvor Lake Road then swerved back across the highway in front of oncoming traffic apparently intending to cross to the entrance to a gravel pit on the other side of the highway.

The motorcycle driver was three weeks short of his 17th birthday and had obtained his class 8 (motorcycle) learner’s licence a month before. He was on a ride with other motorcycle enthusiasts and was riding a 2004 Kawasaki Vulcan 500 LTD. Because he was operating with a learner’s licence, he needed a supervisor for the ride. One accompanied him on the ride, which was a regular event with this group of motorcycle enthusiasts.

The group ride was headed for Gold River at the other end of the Highway 28 from Campbell River. Soon after leaving Campbell River, westbound Highway 28 climbs for several kilometres up General Hill which has a posted speed limit of 80 km/h.

One of the restrictions on the driver’s licence was that he could not drive the motorcycle at a speed exceeding 60 km/h, Justice Gordon says. According to a witness driving a pickup truck who was passed by the motorcycle in question, the bike must have been exceeding 80 km/h because the driver had set his cruise control at 80.

As the witness rounded a corner on Highway 28, about 800 metres from the McIvor Lake Road turnoff, he began to close distance on a Toyota Prius and the following motorcycle, which were slowing down as he was catching up to them.

“About 200 metres from them,” the judge says, “he noticed the Prius had its brake lights on and its right signal flashing. He assumed the Prius was turning right onto McIvor Lake Road. As the Prius moved to the right, partially off the travel lane just as it approached McIvor Lake Road, he also the left signal light of the motorcycle and it moved to the left, accelerating.”

The witness testified the motorcycle went over the double solid line. The witness also saw the Prius swing left across Highway 28 towards Ladore Pit on the east side of the highway. He saw the motorcyclist hit the brakes and slam into the driver’s (left) side of the Prius

The motorcycle driver was thrown from his motorcycle “some distance,” the judge says.

The motorcycle driver testified that when he saw the Prius engage its right turn signal and move to the right near the intersection with McIvor Lake Road, he assumed it would be continuing to turn right onto the road. He intended to to move his motorcycle to the left portion of the travel lane to pass it. He said he turned on his left turn signal to let those behind him know he intended to pass the Prius.

He said he began to move further left when he saw the Prius move back into the lane of travel and then the Prius made a sudden turn across the highway causing the motorcyclist to brake hard.

The motorcycle driver pleaded guilty to the charge of driving contrary to a restriction on his licence, driving greater than 60 km/h. That left it up to the judge to decide on the remaining charge of driving to the right of a sold double line.

The charge was based on the witness’ testimony and his evidence had the most weight. The judge decided the witness’ testimony and the driver’s testimony were both credible and there were consistencies between the two.

The issue remained, did the motorcycle driver drive over the solid double line prior to or after the point of perception of imminent peril? Based on the evidence, it could be either, the judge says, but the judge decided that the motorcycle did not cross the solid double line before the driver perceived that he would have to take evasive action.

“I conclude the action of (the driver) in crossing the solid double line was in response to his perception of a clear and imminent peril,” Justice Gordon says.

The driver raised the defence of necessity because he was responding to a clear and imminent peril and the judge agreed.