Defence of Necessity

This page was last substantively updated or reviewed July 2020. (Rev. # 95317)

• < Criminal Law
• < Defences

General Principles

The common law provides for a defence of necessity (sometimes called "duress of circumstances") for "emergency situations where normal human instincts, whether of self‑preservation or of altruism, overwhelmingly impel disobedience." The defence provides a legal excuse (as opposed to a justification) for conduct making out the offence.

Purpose of Defence

The key basis for the common law defence is the "criterion" of "moral involuntariness of the wrongful action." Involuntariness is measured against "society's expectation of appropriate and normal resistance to pressure."

Availability

To be truly involuntary. The act must be "inevitable" and "unavoidable."

There is no need for an accused to have clean hands to engage the defence. Negligence or involvement in a criminal or immoral activity is not a bar to the defence.

However, the defence will not be available where "actions or circumstances which indicate that the wrongful deed was not truly involuntary" or where there exists a reasonable legal alternative..

Limited Scope

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

Burden of Proof

The accused has the burden to establish an air of reality that the defence applies. This requires at least some evidence that all the elements of necessity may be satisfied. Once established the burden moves to the Crown to establish beyond a reasonable doubt that at least one of the elements of the defence does not apply.

Elements

The elements to make out the defence of necessity requires proof that:

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; and
3. the harm inflicted by the accused must be proportional to the harm avoided by the accused.

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. This involves, the trier-of-fact determining whether the accused's "perception of his situation, and of the absence of any lawful alternatives, had an objectively reasonable foundation."

The element of proportionality is measured on an objective standard.

Imminent Peril or Danger

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."

The consequence must be "imminent or harm unavoidable and near... It must be on the verge of transpiring and virtually certain to occur."

Necessity "may be applied only in truly emergent circumstances, and only when the person at risk has no alternative but to break the law." It cannot apply to conduct that had "been specifically enjoined", nor can it "operate to avoid a peril that is lawfully authorized by the law."

No Reasonable Legal Alternative

The question of reasonableness turns on the particular circumstances.

Necessity requires that compliance with the law be "demonstrably impossible"

The inquiry in the second requirement focuses on whether the accused had any real choice. Where he has no real choice then his actions are effectively not "morally voluntary."

The accused "need not be placed in the last resort imaginable, but he must have no reasonable legal alternative."

The judge need not consider every potential possibility in hindsight.

In an impaired driving case, it has been accepted that the accused need not knock on the doors of strangers late at night during a storm to find someone who would drive them.

Proportionate Consequences

To be proportional, the harm avoided does not need to "clearly outweigh" the harm inflicted. The harm avoided must only be of "comparable gravity" to the harm inflicted. Or alternatively, it must be "less than" the harm that was sought to be avoided.

In considering this element on an impaired charge. The harm associated with the offence is grave. The fact that no one is hurt is of little importance. The comparator harm avoided should relate to the "preservation of life."

Contributory Fault

An accused's contributary fault will also disentitle them from using the defence. Where the circumstances causing the offence "was clearly foreseeable to a reasonable observer" and the accused "contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law", then their actions would not be involuntary.

Specific Types of Offences

Mischief

Necessity was not available for an accused who burned a highway bridge in order to draw attention to its need for repair as there were reasonable alternatives.

Impaired Driving

Where the accused or someone in his protection is at "immediate risk of physical harm, if no reasonable alternative is available and, if the driving is for no longer than is necessary to escape the harm, the defence of necessity will succeed."

Necessity no longer applies where the driver drove longer than is necessary in the circumstances.

Dangerous Driving

Necessity is a potential defence for dangerous driving causing death where the accused had reason to flee from gunshots that were putting his life at risk.

Break and Enter

Necessity has been considered in relation to break and enter.

Fraud and Related

A woman was found not guilty of fraud for failing to report her co-habitation to social services due to suffering from battered wife syndrome and believed she had no other choice. Battered wife syndrome was not successful in a necessity defence for possession and laundering proceeds of crime.

False pretenses not available where there are other options available.

Case digests

• Case Digests