Canadian law only punishes voluntary conduct – behavior that is the product of a free will and controlled body. It is only when someone’s actions are truly voluntary that their conduct should attract the stigma of criminal liability. There are times when someone has no other realistic option than to commit a criminal offence. When this happens, the person may have a legal excuse for what they did. Although their action remains wrong, they are not morally blameworthy because they acted in a morally involuntary way. When someone does something because they have no choice, they may be able to rely on the defence of necessity or of duress depending on the circumstances of their case. This article will discuss the defence of necessity.
Canadian law has very specific rules about when the defence of necessity can apply. If you think necessity applies in your case, you should contact a lawyer at Pringle Law to discuss whether you would be successful and how to best advance your defence.
WHEN DOES THE DEFENCE OF NECESSITY APPLY?
If you have been charged with a criminal offence, it is not enough to simply claim that you had no other choice than to do what you did. Where someone does something in response to imminent peril or danger, that person’s actions cannot be said to be truly voluntary. This is when the defence of necessity may apply.
Canadian law has a narrow test that sets out this defence. The defence of necessity is found in section 8(3) of the Criminal Code of Canada and in the caselaw that has developed over time. It is not the accused’s responsibility to prove that what he did was involuntary because of the presence of some imminent danger and inability to do anything else. Rather, it is the Crown prosecutor’s responsibility to prove, beyond a reasonable doubt, that what the accused did was the result of his own free choice.
The defence of necessity requires that:
- There was some type of imminent peril or danger;
- There was no reasonable legal alternative other than commit the offence; and
- That the harm caused by the accused was not disproportionate to the harm he was trying to avoid.
PART ONE – IMMINENT PERIL OR DANGER
Was the accused in clear and imminent peril or danger?
This is the first step of the test. The defence of necessity requires that the accused is in clear and imminent danger. By imminent, we mean that the situation the accused finds himself in must be one of clear and unavoidable harm. Disaster must be about to strike. Peril means that the accused is in great danger of death, injury, or harm. An example of imminent peril could be a sinking ship or some unexpected natural disaster. It is not enough that the disaster is likely to happen, it must be on the verge of happening and be unavoidable. This defence is not available, however, to a person who puts himself in a dangerous situation where he should have been able to foresee the risks.
To determine whether the accused was in imminent danger or peril, the judge or jury will consider whether a reasonable person in the shoes of the accused would have considered him or herself in the same danger. Would a reasonable person, in that same situation have thought the same thing as him or her? Would they also have believed that they were in clear, immediate and unavoidable danger? Keep in mind, the “reasonable person” here has the same personal traits and background as the accused. That is, they are the same age, gender, race, physical ability etc. as the accused person.
PART TWO – NO REASONABLE LEGAL ALTERNATIVE
Did the accused have any reasonable legal alternative to doing what he did?
Second, the accused must have had no reasonable legal alternative to doing what he did. At this stage, the judge or jury would consider whether the accused could have realistically avoided the danger or peril without breaking the law. Were there realistic alternatives that were available to the accused?
To decide whether the accused had a reasonable legal alternative available to him, the judge or jury will consider whether a reasonable person in the shoes of the accused would have considered there to be no alternative to breaking the law in the accused’s circumstances. Again, the “reasonable person” that the accused is being compared to is the same age, gender etc. as the accused. Here, the judge or jury asks whether the reasonable person would have seen a different, legal, way out. If there was a reasonable alternative to breaking the law, this part of the test fails, and the accused cannot claim necessity.
PART THREE – HARM CAUSED VERSUS HARM AVOIDED
Was the harm the accused caused less serious than the harm he tried to avoid?
Finally, for the defence of necessity to succeed, the harm that was caused by the accused cannot be disproportionate to the harm that he was trying to avoid. Canadian law does not excuse a person who causes greater harm to someone else to avoid lesser harm to themselves. Our law also expects individuals to display ordinary resistance to external pressure. Here, a judge or jury would consider how the actions of the accused compare with what we expect in Canadian society of a reasonable person with the same characteristics of the accused and in the same situation as the accused. They will ask themselves if a reasonable person would be expected to suffer the harm the accused was facing rather than break the law. The harm caused by the accused will be disproportionate if it was worse than the harm he was trying to avoid.
ONUS ON THE CROWN
It is not the job of the accused to prove that his actions were only done because he was in imminent peril with no reasonable, legal alternative therefore making his actions involuntary. The exact opposite is true. It is the job of the Crown prosecutor to prove, beyond a reasonable doubt, that what the accused did was truly voluntary. The Crown must prove that the accused’s actions were deliberate and were the result of his own free choice. This is done if the Crown prosecutor can establish that one of the elements of the necessity test set out above is absent. The defence of necessity can only succeed if all the elements of the test have been met.
Even though it is the job of the Crown prosecutor to establish that at least one element of the test is absent, the accused does have the responsibility of providing the Court with enough evidence to put the defence into play. This is usually done by the accused taking the stand and testifying in his own defence. Although an accused person has the right to silence and never has to testify, it is common when advancing this type of defence for the accused to testify to meet this basic threshold. The decision to testify and the impact it may have on your case can be complicated and it’s crucial that you talk to a lawyer when making these types of decisions about your case.
WHEN DOES NECESSITY NOT APPLY
There are certain cases where an accused person cannot argue necessity. Part of this defence requires that the accused find himself in a situation of unavoidable and immediate danger. However, if the accused put himself in that dangerous situation or contributed in some way to the situation of peril, the defence will likely fail. The law is clear that if the accused should have realized that his actions would likely give rise to an emergency that would require the law to be broken in some way, he may be the author of his own misfortune. A judge or jury will consider whether the accused did anything to contribute to the imminent peril or danger he found himself in when determining whether the accused truly acted out of necessity.
HIRING A LAWYER
Canadian society expects and requires obedience of the law by one and all. It is not enough to claim that you had no choice but to do what you did or that your actions were simply “necessary” in the circumstances that you found yourself in. The defence of necessity can only be applied in very specific circumstances. It is a challenging defence to advance because it requires that compliance with the law be demonstrably impossible. Like the related defence of duress, this is among the more complicated defences used in our criminal justice system and talking to a lawyer at Pringle Law about whether it applies on the facts of your case is crucial. Please contact us for a free consultation.