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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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