R v Card

R. v. Card

[2000] O.J. No. 2333
Ontario Court of Justice — Livingstone J. | January 10, 2000

Background

Gary Card was driving on a country road at 11 p.m. after meeting his son to exchange cash when a vehicle began following him. The vehicle behind him wouldn't pass even when Card slowed down, and sped up whenever Card sped up. Card couldn't see who was driving and became frightened, thinking he might be in danger on this dark, lonely road. He sped up to 140 km/h in an 80 km/h zone to try to get away from what he thought was a threatening situation.

It turned out the vehicle following him was a police officer investigating a stolen vehicle report, who then noticed Card speeding. The officer was doing his job properly, but Card had no way of knowing this — the officer hadn't turned on his emergency lights. When the officer finally activated his roof lights, Card immediately pulled over. Card was charged with speeding under the Highway Traffic Act.

Issues

1. Whether the defence of necessity can apply to a speeding charge
2. Whether the Justice of the Peace properly applied the law when she said speeding is an "absolute offence" with no available defences

The Defence of Necessity

The trial Justice of the Peace got confused about the law. She said she didn't believe the defence of necessity was made out, but then added that "speeding is an absolute offence to which there is no defence." Justice Livingstone found this reasoning impossible to follow and identified it as an error in law.

The court referenced the Supreme Court of Canada decision in Perka and the Ontario case Laudanski, which establish that necessity can be a defence even to regulatory offences like speeding. Laudanski specifically gave an example: "if you were on a lonely road and there is a guy toting a pistol following you in a car, that is an emergency situation." Card's situation fit this template — he was on a lonely road, being followed by an unknown vehicle that was acting threateningly.

The key legal test is whether there was an imminent risk that justified breaking the law. Card's evidence showed he genuinely feared for his safety, couldn't identify the pursuing vehicle, and only sped up to escape what he reasonably perceived as a threat. The court found this was credible evidence that could support a necessity defence.

Key Takeaway

The defence of necessity can apply to Highway Traffic Act charges if you can prove you broke the law to avoid imminent harm.

If you're charged with a traffic offence but honestly believed you had to break the law to protect yourself from immediate danger, document everything about the emergency situation and consider raising necessity as a defence. The key is showing you had no reasonable alternative and faced genuine imminent risk.