Necessity in Canadian law

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For a general discussion of the necessity defense, see necessity defense.

Canadian criminal law allows for a common law defence of necessity. The leading case for the defence is Perka v. The Queen [1984] 2 S.C.R. 232 in which Dickson J. described the rationale for the defence as a recognition that:

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.

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 :

  1. the accused must be in imminent peril or danger
  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 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 R. v. Latimer (2001) at §§ 32-34). The third requirement for the defence of necessity, proportionality, must be measured on an objective standard.

In R. v. Latimer (2001), the Supreme Court of Canada affirmed that the defense of necessity is not available to a defendant when (1) the killing occurred when there was no imminent danger to either the defendant or the victim, (2) reasonable legal alternatives are available besides killing, and (3) the harm inflicted is not in proportion to the harm avoided.

Classification of defence as excuse or justification[edit]

In Perka v. The Queen, the Court explores the history of the necessity defence in order to determine whether it is an excuse or a justification. The legal underpinnings of each are distinct. The majority concludes that under the Canadian Criminal Code, the defence of necessity excuses the accused of blame rather than acts as a justification of their actions. In a concurring opinion, Wilson J. leaves open the door to future case law finding that in some cases the defence can act as justification.

Judicial Antecedents[edit]

The Supreme Court previously discussed the defence of necessity in Morgentaler v. The Queen [1976] 2 S.C.R. 616 where they left open the possibility of its existence but did not conclude either way on the question.