R v Dryka

Her Majesty The Queen v. Justin Wade Dryka

2000 CanLII 19584 (SK PC)
Provincial Court of Saskatchewan — Judge H.W. Goliath | January 31, 2000

Background

Justin Dryka was driving north on Highway #2 near Northside, Saskatchewan when he encountered a van driven by Mr. Greening, a driving instructor. Greening had pulled off the highway to check his tires, then re-entered the traffic flow during heavy traffic conditions. As Greening accelerated to match traffic speed, Dryka approached rapidly from behind. Instead of slowing down or waiting, Dryka first attempted to pass on the left, saw oncoming traffic, then swerved right and passed Greening on the shoulder of the highway.

Greening, who had considerable experience as a driving instructor, considered the maneuver dangerous and followed Dryka to a gas station to discuss the incident. This led to Dryka being charged under section 48(1)(b) of The Highway Traffic Act for passing on the right, which requires drivers to pass on the left except at intersections.

Issues

1. Whether Dryka's admitted violation of the Highway Traffic Act could be excused by the defence of due diligence
2. Whether the defence of necessity applied to justify the illegal passing maneuver

The Defence of Necessity

Judge Goliath found that while due diligence didn't apply (Dryka hadn't taken all reasonable steps to avoid the situation), the defence of necessity did. Drawing on the Supreme Court of Canada's decision in Perka v. The Queen, the court explained that necessity applies when external forces create such an emergent situation that compliance with the law becomes impossible, and failure to act could endanger life or health.

The key finding was that an emergency situation had been created — whether by Dryka's speed, Greening's re-entry into traffic, or both. By the time Dryka realized he couldn't safely pass on the left due to oncoming traffic, he could no longer safely slow down or stop. His choice became: pass illegally on the right, or collide with the van. The court found this created the type of emergency that justifies breaking traffic laws.

Importantly, the judge noted that even if Dryka contributed to creating the dangerous situation (by driving too fast or following too closely), this doesn't prevent him from claiming necessity. As the Perka case established, "negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity."

Key Takeaway

The defence of necessity can excuse traffic violations when an emergency situation makes compliance with the law impossible and more dangerous than breaking it.

Even if you contributed to creating the emergency through your own poor driving, you can still claim necessity if you're forced to choose between breaking a traffic law and risking serious harm. However, this is a very fact-specific defence that requires proving the situation was truly emergent with no other reasonable options.