A Victoria man was acquitted of a speeding charge issued on the Malahat because the judge found it was necessary for him to accelerate at that moment.
Gabriel Raoul Nicol Milne was issued a speeding ticket in March 2019, and while he never contested that he was speeding, Milne’s defence was necessity.
The incident took place on a short stretch of the Trans-Canada Highway that descends southbound towards Greater Victoria, just past the South Shawnigan Lake turn off. The two-kilometre stretch is the last opportunity for drivers to pass before reaching Westshore Parkway.
In a judgment posted on Feb. 27,Justice Hunter Gordon noted the Malahat has been the scene of numerous serious and deadly accidents, which are often attributable to speed, but stated that this particular stretch of the road has contributed considerable revenue to provincial and municipal coffers.
Gordon pointed to the fact that in December alone on this short stretch of the road there were 19 excessive speed tickets issued on one day and on another day that month, 63 speeding tickets were issued, including 10 for excessive speeding.
Milne testified that he had been traveling in the right lane behind a small tourist bus, which had started to slow aggressively. Not wanting to get stuck behind the bus as he was approaching the long stretch of single-lane highway, Milne pulled out to pass it.
As he pulled into the left lane, Milne noticed a large transport truck that had also moved into the right lane directly behind him at the same time and “was so close that given its size and speed he feared it would rear-end him.”
Fearing for his safety, Milne accelerated before pulling into the right lane in front of the tourist bus and slowing his speed. Several hundred meters past the point where the two lanes merged to one, at the bottom of the hill, was an officer with the Capital Regional District Integrated Road Safety Unit. The officer clocked Milne at 105 km/hr, more than 20 km/hr over the posted limit.
According to Milne, he made the point of why he was speeding to the officer when he was stopped, although the constable could not recall this and didn’t make any note of it.
“Such an excuse is not uncommon in traffic court and such a defence might open the flood gates,” stated Gordon, adding that he found Milne to be a credible witness.
Gordon found that once Milne had made the decisions to move to the left lane and pass the tourist bus, he committed himself to do so and only then realized the truck behind him was “bearing down” on him.
“I find that he increased his speed only until he was safely past the tourist bus and he then pulled back to the right lane out of harm’s way and slowed to the posted speed. The harm of speeding was proportional to the harm of an imminent accident,” stated Gordon.
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