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What is the Defence of Necessity and Does it Apply to Your Case?

The lawyers at Aitken Robertson are equipped with the knowledge and practical legal training to defend your criminal matter. To do so, they rely on a number of statutory defences as well as what is referred to as “common-law defences”. For the purposes of this blog, we will be discussing the defence of necessity. This is quite an interesting one.

What is the Defence of Necessity?

The defence of necessity is recognized as a common law defence. Its underlying rationale is that it is inappropriate to punish actions that are normatively involuntary. The defence of necessity is available where there is an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible.

The Required Elements to Make Out the Defence of Necessity

At a minimum, the situation must be an emergency and the peril must be so pressing, that normal human instincts cry out for action and make a prospect of being patient unreasonable. The peril or danger must be more than just foreseeable or likely.  It must be near and unavoidable. A further requirement for a successful necessity defence is that compliance with the law be demonstrably impossible. If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of necessity and human instincts. The final requirement for a necessity defence is that the harm inflicted must be less than the harm sought to be avoided. Most situations of necessity fall into a grey area that requires a difficult balancing of harms. In this regard, it should be noted that the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted), rather the two harms must, at a minimum, be of a comparable gravity.

The fact that an accused was engaged in illegal or immoral conduct when the emergency arose will not disentitle an individual to rely on the defence of necessity. Normally, voluntariness can be presumed, but if the accused places before the court, through his or her own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so perilous that failure to act could endanger life or health and, upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused.

In sum, the defence of necessity provides a legal excuse, as opposed to a justification, for conduct making out the offence. The defence is to be “strictly controlled and scrupulously limited” to situations of true involuntariness.

The Aitken Robertson Team

So how can the lawyers at Aitken Robertson help you with your case? Well, the first thing we do is assess the case against you. We discuss with you the nature of your charge and the penalty it attracts. We then inform you of the level of serious jeopardy you may be facing. Then, we give you a broad overview of how your case will unravel and what we can do for you. Give us a call today to get your free 30-minute consultation and begin fighting your charge(s).

Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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Some of Our Google Reviews

I had my first trouble with law couple of months and we found Edmund Chang. He helped me through all the process professionally moreover, he really cares about my best interest, he will check if I comfortable with all decisions we were going to make and if not, he will not push it. Other things that really stand out, he is approachable as well as responsive to follow up. In the end, we settled the case and I can move on.read more
Krystal Stacy
17:19 15 Jun 18
I was charged with over 0.80 and Impaired Driving charges. I didn't think I had any chance, but Justin Marchant managed to get me out with a careless driving charge. Thanks to him, I don't have a criminal record!!! Very friendly, sharp, professional, and dedicated individual. He did a great job prepping me for the trial, and prepping for the case. I highly recommend this firm, as if it wasn't for them, I'm not sure what would have happened to my life. I made a nasty mistake, one which I will never ever make again. Some lessons have a big price to be learned.read more
Sean Jamali
15:20 07 Jun 18
Recently I was charged with over .80, Justin Marchand help me WIN this charge, from the moment I contacted him, he was very professional and upfront, He always responded to my calls and answered all my questions, He prepared me really well before trial. I would 100% recommend him and his team, Job Well done… “Sometimes good people make mistakes”read more
S F
17:16 07 Jun 18
Mr. Marchand is an amazing lawyer. He is very personable and professional. My case was a very long and drawn out case, but Mr. Marchand always kept up with everything and I was always well informed. I really appreciated that he would take the time to fully explain his thought process/strategy and was never condescending. Even though this was a stressful time, Mr. Marchand made it a great experience and took care of everything.read more
Rochelle Jenifer
17:30 15 Jun 18
Once again amazing ! I am writing this review as I always refer my friends to this firm. THEY ARE THE BEST ! My friend was pulled over at the us border on a random check and in turn got charged with a refusal. My friend did not know that refusing to take a breathalyzer was a criminal offence. In fact as soon as he realized it he asked the officers to take it but they refused him. In turn he was charged with a refusal. Aitken Robertson specializes in DUI and cases such as this.. so it was an immediate call to them that i put in for him. Right then and there they took over. As usual, they offered a payment plan and of course they took care of everything all the pre-trial meetings etc. Justin was the laywer for him and not only is he the MOST thorough he is the most out for justice. He found the errors that the officers made and he used it to my friends advantage. He went above and beyond to find the best resolution with the crown. He went above and beyond to give my friend all his options. And the best part is that NO CRIMINAL CHARGES. It was reduced basically down to a speeding ticket as a result of Justins hard work. The whole firm is stellar. They take time to go through your disclosure to confirm any and all details are correct.The justice system is a corrupted one and im thankful these lawyers know how to find a way to help us through that. Justin once again did an amazing job. Susan at the firm is great she helps out with payment plans etc. Brenda is great. Robert of course its just a great team of laywers. Do not go anywhere else ! I will recommend them time and time again.read more
TAYLOR STEVENS
19:28 26 Jun 18
When my daughter's boyfriend had a problem I looked up Jordan Tekenos-Levy. Jordan did an amazing job defending this young man. He showed compassion and care in a very sensitive issue. Jordan is a great lawyer, he fights hard for his clients and ensures their loved ones are kept in the loop during the entire process. He is honest and doesn't sugar coat the situation. I would highly recommend his services. We owe him a huge debt of gratitude and I wish him all the best in the future.read more
Laurene Smith
02:58 16 Nov 18
I was falsely accused of a crime and I sought out representation. I did not know exactly where to go, I was in a panic as I've never seriously run afoul with law enforcement. Mr. Nathan Baker and his staff were assigned to my case, and I am thankful that they were. Knowing I was innocent I still was worried about how everything was going to play out as I wondered 'how could this even be happening'. Mr Baker and his staff helped walk me through the court process that was completely unfamiliar to me, besides what Id seen on television. It was a two year process, and every step of the way all my questions and inquisitions were answered and put at ease. I give this Firm my full endorsement, they believed in me, supported my case and followed through on every detail pertaining to it, and defended me to a correct Not Guilty verdict. For that I will be forever grateful. I've never had the need for an attorney to represent me before the false accusation, and I hope I never need it again. But if I do, I'd want this firm to represent me.read more
Zak Piva
03:06 28 Oct 18
I would like to thank the lawyers at Aitken Robertson especially Philip Stiles and Lavina Inbar for helping me thru this most difficult time.Everyone i was in contact with were very polite and professional.Being a very high stress time of my life i could not have been happier to hear a "Not Guilty " verdict.I will always recommend Aitken Robertson to anyone i hear of needing a good lawyer.Thank you all very muchMauriceread more
Maurice Flight
20:22 31 Oct 18
Justin provided thorough and caring representation for my friend who had a court proceedings. I would recommend Justin and the Aitken Robertson team to anyone in a similar situation. Thanks!
Rexy H
19:26 08 Sep 18
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