Canadian Criminal Law/Defences/Necessity

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General Principles[edit | edit source]

The common law provides for a defence of necessity commonly referred to as "duress of circumstances," for "emergency situations where normal human instincts, whether self-preservation or of altruism, overwhelmingly impels disobedience."[1] The defence provides a legal excuse (as opposed to a justification) for conduct making out the offence.[2]

The defence is to be "strictly controlled and scrupulously limited" to situations of true involuntariness.[3]

The elements to make out the defence of necessity:

  1. the accused must be in imminent peril or danger[4]
  2. the accused must have had no reasonable legal alternative to the course of action he or she undertook
  3. the harm inflicted by the accused must be proportional to the harm avoided by the accused

The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable. At the least, "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."[5]

To be proportional, the harm avoided must be at least comparable to the harm inflicted.

The elements of imminent peril and no alternative is determined on a modified objective standard taking into account the situation and characteristics of the accused.[6] The element of proportionality is measured on an objective standard.

The defences first set out in R v Latimer, however, had previously been considered as potentially available in the case of Morgentaler v. The Queen, [1976] 2 S.C.R. 616.

Necessity remains a common law defence in Canada, preserved by s 8(3) of the Criminal Code.This has created some confusion in Canada as opposed to other jurisdictions that have codified this defence.

  1. R v Perka, [1984] 2 S.C.R. 232
  2. R v Perka, [1984] 2 SCR 232
  3. R v Perka, [1984] 2 SCR 232
    R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at paras. 26 to 34
  4. See Morgentaler v. The Queen, 1975 CanLII 8, [1976] 1 S.C.R. 616, at p. 678
  5. R v Perka, [1984] 2 SCR 232
  6. R. v. Latimer, 2001 SCC 1, [2001] 1 SCR 3 at 32 to 34

Case digests[edit | edit source]

  • R v Dirk, 2012 SKPC 61 -- impaired driving -- accused drove a few feet in order to avoid person who was smashing his car-not proportionate, or without alternatives
  • R. v. Valauskas, 2012 ONCJ 790 (CanLII) - impaired driving - the accused drove drunk to escape attackers
  • R. v. Murray, 2010 ABQB 784 -- impaired driving charge -- accused co-worked beaten unconscious and a group of angry men threatened to beat him--defence accepted
  • R v Maragh, [2003] O.J. No. 3574 - flight from police
  • R v McCain, [2003] O.J. No. 1762 (C.J.) -- Breach of recognizance
  • R v Burgess, [2003] O.J. No. 4633 (C.J.) -- failing to remain at the scene
  • R v Sanders, [2001] O.J. No. 2207 -- cultivation --
  • R v Hill [1999] B.C.J. No. 933 (Prov.Ct.) -- failing to remain at the scene
  • R v Gourlay (1996), 182 A.R. 126 (ABPC) - theft
  • R v Lalonde (1995), 22 O.R. (3d) 275 (Gen.Div.) - fraud -
  • R v West (1994), 123 Nfld. & P.E.I.R. 234, (NLSC) - impaired driving - successful. accused was driving to corner store to call police to eject a guest
  • R v Stevenson, [1986] 42 Man.R.(2d) 133 (MBQB) -- mischief
  • R v Fry (1977), 36 C.C.C.(2d) 396 (SKPC) - dangerous operation - successful