Necessity in Canadian law
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Canadian criminal law allows for a common law defence of necessity. Necessitas non habet legem; "Necessity knows no law." This well-known maxim reflects the theoretical basis of the defence of necessity: that in dire circumstances of looming peril, the claims of positive law seems to weaken.[1] This controversial common law or judge-made defence has only been firmly recognized in Canadian law since 1984.[1] It is recognized in Canada as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe avenue of escape or legal way out of the situation.[1]
There is an objective or reasonableness requirement that requires the accused to reasonably resist the pressures that led to the commission of the crime.[1] Anyone is entitled, by virtue of s.8(3) of the Criminal Code, to rely upon any excuse or defense available to him at common law.
The defence of necessity
The defence of necessity is an excuse for an illegal act, not a justification for committing the illegal act. The leading case for the defence is
a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.[2]
However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where true "involuntariness" is found.
Three elements are required for a successful defence (R v Latimer, 2001 SCC 1, 1 SCR 3, at para 28):
1. The accused must be in an urgent situation of imminent peril or danger.
- The disaster must be imminent and it must be on the verge of transpiring and virtually certain to occur.
2. The accused must have had no reasonable legal alternative to breaking the law
- If there is a reasonable legal alternative to breaking the law, then there is no necessity.
3. The harm inflicted by the accused must be proportional to the harm avoided by the accused
- The harm inflicted by the accused must not be disproportionate to the harm the accused tried to avoid. The harm avoided must be either comparable to, or clearly greater than the harm inflicted.
The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.
At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.
With regard to the second element, if there was a reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted.
The first two elements must be proven according to the modified objective standard, which takes into account the situation and characteristics of the particular accused person (see
In
More recently, in R v Kerr, 2004 SCC 44, [2004] 2 SCR 371 the defence of necessity was made out and the accused acquitted, where an inmate stabbed to death a fellow inmate after being threatened with his life. The Supreme Court of Canada restore the acquittal from trial on the basis that the accused "had a reasonable belief that the circumstances afforded him no legal way out" and the lethal attack he sought to avoid outweighed his breach of s. 88(1) (at para 96). Justice Binnie dissented in this case as he disagreed with applying necessity as he decided the accused had a double intention of carrying the knife (at para 85) as a defence tool and as a more general and regular purpose of carrying a knife.
In R. v Bridges (1989), 48 C.C.C. (3d) 535, 61 D.L.R. (4th) 12 (B.C.S.C), the defence of necessity was not made out to an accused charged with contempt of court for a violation of a court order against interfering with an abortion clinic. The defence is available when wrongful acts are committed under pressure in which no reasonable person could withstand. In these circumstances, reasonable person could withstand the pressure to defy the court order and thus, the accused's honest belief that abortion was immoral does not change this fact. This decision was upheld at the British Columbia Court of Appeal R. v Bridges (1990), 62 C.C.C. (3d) 455, 78 D.L.R. (4th) 529 (B.C.C.A)
In R v Shewchuk (2014) SKPC 164, The defence of necessity was not made out to an accused charged with impaired driving. The defendant had become intoxicated while ice fishing in a rural area and was unable to reach help. The defendant drove to a hill parking on the centre of the road hoping he would be found by a passerby but was discovered by officers. The court ruled that the defence of necessity would not hold. Thought the threat of hypothermia was sufficient for the first aspect of necessity and that hypothermia was imminent enough for the second aspect to apply. However the requirement that the harm inflicted is not disproportional to the harm avoided. The threat the defendant posed by parking in the centre of a road at night unaware and without lights was found to outweigh the harm avoided.
Classification of defence as excuse or justification
In
It may generally be said that an act is justified on grounds of necessity if the court can say that not only was the act a necessary one but it was rightful rather than wrongful.
Judicial antecedents
The Supreme Court previously discussed the defence of necessity in
Necessity and abortion
In