A driver who was ticketed for speeding on the Malahat Highway near Langford, B.C., has been cleared, after arguing he had no choice but to speed in order to get away from a semi-trailer coming down the hill behind him.

Gabriel Milne was pulled over after an RCMP officer on patrol caught him breaking the speed limit in a passing lane on the Malahat Highway, just outside Langford, on March 26, 2019.

Milne was charged with speeding under the Motor Vehicle Act, but fought the charge in B.C. Provincial Court. Using the defence of necessity, he argued he had to speed to protect his personal safety.

Judicial Justice Hunter Gordon sided with Milne in his decision last week, changing his mind after an initial "gut reaction" told him to dismiss the argument.

"[Milne] honestly believed, on reasonable ground, that he faced a situation of imminent peril that left no reasonable legal alternative open," wrote Gordon.

Downhill stretch notorious for speeding

Milne was coming down a section of the Malahat well-known to police as a hotspot for speeding when he was pulled over. The stretch runs downhill between Shawnigan Lake Road and Westshore Parkway, through Goldstream Provincial Park.

The speed limit is 80 km/h.

Southbound drivers often speed through the area as it's the last opportunity to pass slower drivers before two lanes merge into one at the bottom of the hill.

On the day he was ticketed, Milne was coming down the far-right lane behind a tourist bus. Not wanting to get stuck behind the bus after the merge, Milne pulled out to pass when the bus slowed down.

As he did so, the judgment said, a large semi-trailer did the same — ending up directly behind him.

Milne said he was worried about being rear-ended, so he sped up past the speed limit. He testified he knew he was going too fast, but pulled back into the right lane and slowed down once he was past the tourist bus.

An RCMP officer on patrol with a radar at the bottom of the hill pulled Milne over after clocking his speed at 105 km/h.

Change of mind

The judicial justice said his first reaction to hearing Milne's argument was that the defence of necessity wouldn't work for a speeding case. (Judicial justices in B.C. are judicial officers who have authority under various provincial and federal laws. They often deal with traffic matters and do not deal with offences that could end in a prison sentence.)

Gordon said the excuse is common in traffic court. A win, he added, could set a precedent and "open the 'flood gates'" for more drivers to challenge tickets.

He researched previous cases on the issue and found, in some situations, the act of breaking the law can be excused.

A previous case Gordon referred to gave criteria for the defence of necessity to work: there must have been danger or "imminent peril" to avoid, and the accused can't have had any other reasonable, legal alternatives.

The amount of harm avoided also needs to be greater than the negative impact of breaking the law.

In Milne's case, Gordon believed the driver truly thought he was in immediate danger when he saw the semi-trailer bearing down behind him. The judicial justice also believed Milne only sped enough to get around the tourist bus, slowing down as soon as he was back in the right-hand lane.

Ultimately, he ruled the harm done by speeding was less than the harm that could have come from a crash.