Driving Offences

“It Was My Only Option”: The Defence of Necessity

Written on behalf of Barrison Law

If an accused would otherwise be found guilty of an offence, they may be able to rely on a defence to escape liability, for example, if they acted in self-defence. Another possible defence is that of necessity, which may excuse a person of their crime if it arose from a genuine emergency. 

This article reviews the specific requirements for the defence of necessity to excuse criminal behaviour. It will also review a recent decision of the Court of Appeal for Ontario in which the accused sought to overturn her conviction and relied on the defence of necessity.


What is the defence of necessity?

Acting out of necessity may excuse an accused from criminal liability. Although commonly referred to as a defence, it is more accurately characterized as an excuse which can operate to invalidate liability where the accused’s conduct occurred in an emergency situation and was necessary to avoid an even greater danger.

As the Supreme Court of Canada explained in the 1984 case of R. v Perka:

“At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.”


What are the elements of the defence of necessity? 

For an accused to be able to rely on the defence of necessity, three elements are required:

  1. the accused must have been facing an urgent situation involving clear and imminent peril;
  2. there must be no reasonable legal alternative to breaking the law; and
  3. the harm inflicted by the accused must be proportionate to the harm sought to be avoided.

These elements are assessed from the perspective of a reasonable person. However, the accused’s perceptions are relevant to the first two elements, provided that they are reasonable.

Finally, the accused must show that there is “an air of reality” to each element. If they do so, it is up to the jury or judge to decide if the elements exist in the circumstances. Importantly, if the accused shows that the defence possesses the required air of reality, it is up to the prosecution to disprove one or more of the three elements beyond a reasonable doubt.


Accused was charged with driving offences after driving drunk and causing injury

Tuning to the recent decision in the case of R. v Guillemette, the accused was charged with three driving offencesimpaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to remain at the scene of an accident.

On the night in question, the accused went to a bar expecting to meet a friend that never showed up. She drank some beer and then claimed that she went to her car to retrieve her phone to call a taxi. 

She explained that a man followed her, asking that she go with him to his home. When she declined, he entered her car and grabbed her purse containing the phone. When a bartender told her that she had to move her car to avoid it being towed, she drove down an alleyway to a dead end.

At this point, other men approached her car. The accused feared for her safety when one of them reached inside, placing his arm against her chest. She revered the car, injuring one of them. 


The men told a different story of events

The men described the accused as belligerent and intoxicated. While the man who got into her car did not testify at trial, the bartender said he understood she was going to his home. After the bartender said her car would be towed if left overnight, the accused decided to drive her car and he phoned emergency services.

The bartender and two other men followed when she drove down the alleyway. They heard a loud noise and noticed that she crashed the car. One of the men tried to remove the keys from the ignition and was injured when the accused reversed the car. 

After the incident, the accused drove home. The accused did not tell the police about the incident involving the men. 


The accused was convicted at trial, with the judge relying on her silence

The key issue at trial was whether the accused could rely on the defence of necessity, which depended on the trial judge’s assessment of the parties’ credibility. 

At trial, the prosecution argued that the accused was not telling the truth because if she had been attacked, she would have said something to the police immediately after the incident. The trial judge agreed, finding that the accused fabricated the story because she did not immediately tell the police. 

The Court convicted the accused and the accused appealed. 


Court of Appeal set aside the convictions

The Court of Appeal explained that, with limited exceptions, an accused’s silence cannot be used to incriminate them or impeach their credibility. The Court decided that the prosecution’s questioning as to why the accused did not tell the police of the attack turned the accused’s right to silence into a sword from which an inference of guilt could be drawn. Furthermore, the trial judge relied on this adverse inference to convict the accused. 

As a result of these errors, the Court set aside the convictions and ordered a new trial. 


Contact the Criminal Defence Lawyers at Barrison Law in Oshawa Regarding Driving Charges

The criminal defence lawyers at Barrison Law are experienced in helping clients deal with various charges that fall within the category of driving offences. Convictions can have severe consequences on your life, so it is important to work with a lawyer to ensure that you have a strategic defence. We can help you by understanding your story and advocating on your behalf. Barrison Law provides a free initial consultation with prospective clients. We also have a 24-hour emergency phone service if you need us right away. Please call us at 905-404-1947 or contact us online.