R v Kytwayhat

R. v. Kytwayhat

2004 SKPC 33
Provincial Court of Saskatchewan — J.A. Nightingale, PCJ | February 24, 2004

Background

Frank Kytwayhat received an urgent call at work: his pregnant stepdaughter was going into labour and needed to get to the Meadow Lake Health Centre immediately. The trip from their home in Loon Lake was 60 kilometres on rural highways. Kytwayhat volunteered to drive her, choosing to make the journey at 151 km/h — a speed that RCMP radar caught just east of the Village of Makwa.

The emergency turned out to be a false alarm. The stepdaughter's pains weren't labour, and she delivered a healthy baby a week later after a presumably calmer hospital trip. But Kytwayhat was outraged at being charged with speeding under Saskatchewan's Highway Traffic Act, believing the officer should have shown compassion over law enforcement. The officer testified that he'd considered letting it slide, but two factors changed his mind: Kytwayhat had been caught speeding at 140 km/h just a week earlier, and even ambulance drivers limit themselves to 130 km/h for safety reasons.

Issues

1. Did the circumstances establish a defence of necessity for the speeding offence?
2. If necessity applied, was the degree of speeding proportional to the harm being avoided?

The Defence of Necessity

The court applied the three-part test from Latimer v. The Queen: (1) urgent situation of clear and imminent peril, (2) no reasonable legal alternative, and (3) proportionality between harm inflicted and harm avoided. The Crown bears the burden of proving necessity doesn't apply once the defence is raised.

Judge Nightingale found the first two branches satisfied. There was imminent peril — a situation where "normal human instincts cry out for action and make a counsel of patience unreasonable." And there was no evidence of reasonable alternatives: the Crown presented no proof about medical facilities at Loon Lake, ambulance availability, or whether local doctors could deliver babies. Based on Kytwayhat's reasonable belief that Meadow Lake was the only option, the necessity defence initially looked viable.

But the third branch — proportionality — killed the defence. The judge took judicial notice that the 60-kilometre journey would take 28 minutes at 130 km/h versus 24 minutes at 151 km/h. By traveling at more than 1.5 times the posted limit, Kytwayhat "put himself and his passengers at significant risk of serious bodily harm or death" to save merely four minutes. The court found this "grossly out of proportion to the harm avoided" — even though some measure of speeding might have been justified, 151 km/h was simply too fast.

Key Takeaway

Emergency circumstances can justify breaking traffic laws, but the response must be proportional to the actual risk.

The necessity defence has strict limits: you must face genuine imminent peril with no reasonable alternatives, and your law-breaking can't create risks far worse than what you're trying to prevent. Four minutes of time savings wasn't worth the massive safety risk of extreme speeding.