If you’re a regular reader of our blog, you’ve probably noticed that our lawyers have included a monthly posting highlighting various aspects of criminal defence in Canadian law. We started this series with a blog about the “abandonment” defence in December and most recently added a blog detailing the “mistake of fact or law” defence in June. This month we will examine the “necessity” defence, which is timely given that the Ontario Court of Appeal addressed the defence in its decision to overturn a lower court’s conviction.
As implied by its name, the necessity defence relies on a claim by the defendant that they committed the criminal act out of necessity—that there was no other viable choice. For example, using the recent court of appeal case, the defendant claimed that she had driven drunk, caused bodily harm, and failed to stop at the scene of an accident because she was being attacked by four men and feared for her physical well-being.
This might seem pretty straightforward, but as with all criminal defence strategies, the relevant law is complex and often nuanced. But read on as the Greater Toronto Area criminal defence lawyers at Mass Tsang explain how the law and court system address the necessity defence. Please note that the information in this blog should not be construed as “legal advice,” as it is strictly for educational purposes. Anyone facing criminal charges should always seek the services of an experienced criminal defence lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended thousands of criminal cases and can help you mount an effective criminal defence if needed.
Dictated by Common Law, Criminal Code, and Court Precedence
The necessity defence evolved within English common law based on the idea that the greatest social good may not always be furthered by strict adherence to the letter of the law. Under common law, a crime of necessity was considered a viable defence if a person committed a criminal act during an emergency to prevent more significant harm.
These principles were vaguely codified by Section 8(3) of Canada’s Criminal Code in 1985, which states:
“Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.”
In essence, this provision in the Code allows any defendant to rely upon any excuse or defence available to them in common law. However, the Supreme Court of Canada had already made a precedent-setting decision that specifically allowed for and dictated the use of the necessity defence. In 1984, Canada’s Supreme Court ruling in Perka v. The Queen  2 SCR 232 established three primary points needed to make a valid necessity defence:
- There must be some type of imminent peril or danger that cannot be avoided.
- There were no reasonable legal alternatives other than to commit the offence.
- That the harm caused by the accused’s crime was not disproportionate to the harm they were trying to avoid.
The justices in the Perka decision also established that Canadian law should recognize the necessity defence as an “excuse” for breaking the law rather than a “justification.” They made this distinction to clarify that a successful necessity defence should not suggest vindication. However, they left open its future use as justification in case law by noting that a future court may determine that an illegal act was not only necessary, but also the right action to take.
The high court’s decision also established that if the defence can successfully raise the issue of necessity, the onus is on the Crown to prove the absence of necessity by disproving at least one of the three primary points. This is based upon a principle tenet of Canadian criminal law that requires the Crown to prove intent to secure a conviction for criminal activity.
Subsequent high court decisions — such as R. v. Latimer  1 SCR 3 — clarified and expanded upon the valid use of the necessity defence established by the Perka decision. Among other things, a fourth point was essentially added to the initial three that nullifies the defence if the accused contributed in any way to the emergence of the imminent and unavoidable danger that created the “necessary” criminal action.
The Necessity Defence in the Ontario High Court
The recent Ontario high court case — R. v. Guillemette, 2022 ONCA 436 — primarily hinged upon whether the trial court breached the defendant’s Charter Right to silence. However, because this apparent breach arose in context of the necessity defence offered by the defendant, justices felt compelled to examine it.
The high court found that the defendant had raised a valid necessity defence but found fault with the Crown’s successful efforts to challenge it. Rather than rely on witness testimony to rebut the three primary points of the defendant’s necessity defence, the Crown used cross-examination to show that she did not raise the issue of necessity when first approached by police — that she did not notify officers that she was under physical assault by four men at the time of the incident.
In their ruling, the justices noted that the Crown used the cross-examination to turn the defendant’s right to silence into a snare to use against her:
“[T]he prosecution cannot suggest that the accused’s silence prior to trial informs the veracity of the accused’s testimony at trial. To do so would clearly turn the right to silence into a snare by placing the accused in an intolerable situation of having asserted a constitutional right to silence, only later to learn that an inference of guilt could be taken from the assertion of that right. This is exactly what happened here: the appellant’s assertion of her right to silence was transformed into evidence against her.”
In conclusion, the justices found that the trial judge erred first by allowing the cross-examination testimony to proceed in breach of the defendant’s Charter Right to keep silent. And then erred again by using the testimony to reject the necessity defence and find the defendant guilty. “This was a misuse of the right to silence, resulting in an unfair trial.”
Consult with Mass Tsang for Criminal Defence Expertise
Mass Tsang’s skilled criminal defence lawyers would undoubtedly turn to the necessity defence if warranted by the circumstances and evidence involved with the alleged crime. If you feel that you were arrested due to a crime committed out of necessity, we can review the details of the case to determine whether you can successfully raise the three primary points needed to mount the necessity defence.
The experienced criminal trial lawyers at Mass Tsang strive to develop criminal defence strategies that will secure the best legal outcomes for our clients. If you or a loved one is facing criminal charges in the Greater Toronto Area, contact us today for a free consultation.