Imagine that a medical emergency required you to drive a friend to the emergency room despite being too drunk to drive. Let’s say that Ontario police saw you speeding towards the hospital, followed you to the emergency room entrance, and then initiated an investigation of the incident as your friend was tended to by EMTs. They realize you were obviously impaired, order you to undergo roadside screening, and subsequently arrest you for DUI.
Given the emergency, do you have a viable criminal defence that can lead to an acquittal or dropped charges?
While not one of the more common defence strategies in Canada, the necessity defence is still sometimes raised by defendants who argue that the criminal act was committed out of necessity. As an affirmative defence, the defendant admits to the crime but seeks a legal excuse — and forgiveness — for committing it.
When Does the Defence of Necessity Apply?
While it originally evolved from English common law, the necessity defence is supported under Canada’s Criminal Code and by court precedents. Under common law, necessity is considered a valid defence when a defendant commits a criminal act to prevent more significant harm from arising from an emergency.
Section 8 (3) of the Criminal Code supports this sentiment by stating:
“Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.”
Its use as a defence was more narrowly tailored by the Supreme Court of Canada’s decision Perka v. The Queen  2 SCR 232, which established three primary factors needed to validate a successful necessity defence.
- Unavoidable imminent peril or danger.
- No reasonable legal alternatives to mitigate the emergency other than committing the offence.
- That the harm caused by the defendant’s crime was not disproportionate to the harm they were trying to avoid.
Imminent Peril or Danger That Cannot Be Avoided
The high court justice held that a viable necessity defence requires the emergency to go beyond foreseeable to be near at hand and unavoidable. “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,” noted the court’s decision.
There Can Be No Reasonable Legal Alternatives
This factor is straightforward, and is used by the court to examine the reasonableness of the criminal action in relation to the emergency. In short, did the defendant have any options other than the criminal act to avoid the peril or danger posed by the crisis? If so, then the validity of the defence is weakened if not nullified.
As a subjective exercise, courts cannot consider every possible reaction in hindsight, but should examine the circumstances as experienced by the defendant.
Balancing the Harm Caused Versus Harm Avoided
The Court uses this third factor to balance the proportionality between the harm avoided by committing the criminal act versus the potential damage inflicted by committing the criminal act. Any apparent harm caused by the criminal act must amount to less than that of the damages that the defendant was trying to avoid.
However, when assessing proportionality, the courts consider the apparent harm of the offence rather than any actual damage done.
When Does Necessity Not Apply?
High court precedents also established that the Crown must only disprove one of the three primary factors to nullify the claim of necessity. Thus, if you successfully introduce the necessity defence in court, the onus is on the Crown to invalidate at least one of the primary factors.
The high court’s decision in R. v. Latimer  1 SCR 3 added a fourth factor that also nullifies the validity of the defence, in the case that the defendant played any role in creating the emergency that led to the need to take “necessary” criminal action.
Contact Vilkhov Law to Assist with Your Criminal Defence
While the necessity defence is one of the least common defence strategies used by criminal defence lawyers, the need to commit a crime to avert more serious harm does still occasionally arise.
Our experienced team at Vilkhov Law is intimately familiar with all viable criminal defence strategies and can help you develop a defence plan to challenge your criminal charges. Contact Vilkhov Law today to schedule your free initial consultation.