What is the Defence of Necessity?

If you’re charged with a criminal offence in Canada, the Crown prosecution must prove that you acted voluntarily to secure a conviction.

Sometimes, if the actions you took were due to certain circumstances that left you with no other realistic choice, the defence of necessity can be used by a criminal defence lawyer to explain your actions during your case.

If it is adequately proven that you had no other realistic option, you can escape liability for the crime because Canadian law only punishes voluntary criminal conduct. This is an action taken from one’s free will and with a controlled body.

However, specific rules apply to the use of the defence of necessity and it takes an experienced criminal defence lawyer to successfully argue this defence.

General principles of the defence of necessity

Although there is a strict Criminal Code that punishes illegal behaviour, Canadian law recognizes that sometimes people have a legitimate reason for their actions and, essentially, acted “involuntarily”.

This aspect of the law is used for “emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.”

So, even though the individual’s actions were wrong, there is a legally valid reason for them, as covered in section 8(3) of the Criminal Code and developed with case law.

The defence of necessity is similar in some ways to the defence of duress but, with duress, the argument is that another person threatened imminent harm if the defendant did not act to commit the crime.

The key principles of the defence of necessity are as follows:

• It requires “moral involuntariness of the wrongful action”, with true involuntariness measured against “society’s expectation of appropriate and normal resistance to pressure”
• The act must be “inevitable” and “unavoidable”.
• The defence is not available if actions/circumstances indicate that the wrongful deed was not truly involuntary” or where a reasonable alternative existed.
• The accused has the burden to establish an “air of reality” that the defence applies and if successful, the Crown will need to establish beyond a reasonable doubt that one or more of the elements of the defence does not apply.

It is also important to note that for a defence of necessity to be applied, the harm caused by the defendant must be strictly proportionate to the harm that he/she was trying to avoid.

Common law and the Criminal Code

The defence of necessity began in English common law, which recognizes that the greatest social good may not always be furthered by strict adherence to the letter of the law.

The Canadian Criminal Code incorporated it in 1985 but even before that, the Supreme Court of Canada had made a precedent-setting decision that allowed for the necessity defence in the following circumstances:

• If there is some type of imminent peril or danger that cannot be avoided.
• If there were no reasonable legal alternatives other than to commit the offence.
• If the harm caused by the accused’s crime was not disproportionate to the harm they were trying to avoid.

When can the defence of necessity be used?

If you’ve been charged with a criminal offence due to actions while involved in a situation that put you at imminent peril or danger, the defence of necessity may be used.

Simply claiming that you had no other choice than to take the actions that led to the commission of the crime will not work. You need to demonstrate that your actions were truly involuntary.

An experienced criminal defence lawyer will be able to advise you whether your actions could be construed as such.

A good example would be a man who was arrested for speeding or dangerous driving while driving a victim of a shooting incident to the hospital. He may have been speeding but it was an emergency and if he hadn’t arrived at the hospital in time, the victim may have died.

Another example might be a lady who was charged with assault after punching someone who was making unwanted sexual advances. She doesn’t deny the assault but says she acted in the belief that if she hadn’t taken the action, she would have not been able to escape and would have been sexually assaulted.

When does the defence of necessity not apply?

If a defendant placed himself/herself in a perilous situation due to his/her actions, (i.e., the defendant should have known that his/her actions would have created an emergency that would require the law to be broken), a defence of necessity is unlikely to be successful.

Likewise, if the actions of the defendant were disproportionate to the threat involved, this defence will fail. For instance, in the above example, if the lady shot the individual who made unwanted verbal sexual advances, it is unlikely to be considered a “proportionate” response.

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To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.