7. Necessity

Summary of Necessity #

General Points #

The defence of necessity excuses criminal conduct (resulting in an acquittal) where an accused facing “clear and imminent peril” acts to avoid a greater harm – rendering their conduct “morally involuntary.”  

The Court in Perka recognized the defence at common law; it applies to all criminal offences, possibly including murder. (Latimer)

Before the defence may be put to a jury, the accused must raise an air of reality with respect to each element of the defence; the burden then shifts to the Crown to prove BARD that one or more elements do not apply. (Perka)

The elements of the defence as set out in Perka:

i. the accused was in a situation of “clear and imminent peril”;

ii. there was no “reasonable legal alternative to disobeying the law”;

iii. the harm threatened was proportionate to the harm inflicted.

Involvement in criminal or negligent activity is not a bar to the defence. But an accused cannot make recourse to the defence of necessity where she placed herself in a situation where the peril was reasonably foreseeable. (Perka)

Specifics: #

The SCC in Latimer held that the first two elements of the Perka test are assessed on a modified objective basis, or from the perspective of the reasonable person who shares the situation and characteristics of the accused.

The third element of the test is assessed on a purely objective basis. The harm need not “clearly outweigh” the harm imposed but must be of “comparable gravity.” (Latimer)

Necessity may be a defence to murder if the peril faced was “seriously comparable in gravity to death” and other elements of the defence were established. (obiter in Latimer)

© Robert Diab, TRU Law, 2022