In Canadian criminal law, necessity as a legal defence in Canada is recognised as a narrow exception that excuses a person for committing an offence when they act in response to imminent danger. Courts approach this defence carefully because it allows conduct that would normally be unlawful and reserve it for rare situations where a person had no meaningful choice.
For anyone facing charges in British Columbia, understanding when necessity may apply is important. This article explains the criteria, highlights key Canadian case law and outlines how courts in BC interpret the concept of legal necessity.
What Is the Necessity Legal Defence in Canada?
The necessity defence is based on the idea that someone who commits an offence while responding to an urgent threat should not be held criminally responsible if they had no meaningful choice. It operates as an excuse rather than a justification. In other words, the act remains wrongful in law, but the person may be excused because the circumstances left them with no reasonable alternative.
Canadian courts have consistently stressed that necessity is not a broad escape route from criminal liability. It is used only in extreme cases where the accused acted to avoid immediate harm and where compliance with the law was impossible.
The Three-Part Test for Necessity
Canadian case law establishes a clear three-part test. All three elements must be met.
1. Imminent Peril or Danger
The threat must be immediate and serious. The danger must exist at the moment the offence was committed, and it must be unavoidable.
2. No Reasonable Legal Alternative
The accused must show that no safe, practical or lawful option was available. Courts examine alternatives closely because the defence fails if a reasonable choice existed.
3. Proportionality Between the Harm Caused and the Harm Avoided
The response must be proportional to the danger faced. The harm caused by breaking the law must be less serious than the harm that was likely to occur without action.
These criteria originate from leading Canadian Supreme Court decisions and remain the foundation for necessity assessments across the country.
Key Canadian Case Law on the Necessity Defence
R v Perka (1984 SCC)
R v Perka is the landmark case that shaped the modern approach to necessity. The Court held that necessity can excuse criminal conduct only in rare situations. In this case, drug smugglers argued that weather conditions and mechanical issues forced them to bring narcotics into Canada. The Court rejected the defence, noting that the accused had voluntarily engaged in illegal conduct and that the danger was not truly unavoidable.
Perka confirmed that necessity is reserved for exceptional cases where strict requirements are met.
R v Latimer (2001 SCC)
In R v Latimer, the Supreme Court reaffirmed the narrow scope of necessity. Latimer argued that ending his disabled daughter’s life was necessary to relieve her suffering. The Court held that the defence could not apply because the threat was not imminent and legal alternatives were available. The decision emphasised that necessity is limited to urgent and immediate crises.
R v Kerr (BC Courts)
In R v Kerr (BC Provincial Court), the accused drove while prohibited and argued that a medical emergency involving his child left him no choice. The Court reviewed the facts and reiterated that the defence requires real and immediate danger and no reasonable alternative. While the outcome depends on the circumstances of each case, Kerr remains a helpful example of how BC courts evaluate emergency-based arguments.
Necessity in British Columbia: Practical Considerations
BC courts use the same strict test developed by the Supreme Court of Canada, but local cases often involve emergencies connected to BC’s geography and environment. These situations may involve urgent medical issues in remote areas or immediate threats requiring swift action.
Necessity will not apply simply because a person feels stress or pressure. The danger must be serious, imminent, and unavoidable.
Examples where necessity may arise include:
- Driving without a licence to escape a violent situation
- Breaking into a cabin during a life-threatening storm
- Taking control of a vehicle to prevent imminent harm
Even in these scenarios, the accused must still show that no reasonable alternative existed and that their response was proportional to the danger.
Why Necessity Is Difficult to Prove
Courts apply the necessity defence carefully for two main reasons.
Protection of the rule of law
If necessity were applied too broadly, people could attempt to justify unlawful actions whenever circumstances felt difficult. Courts, therefore, require clear evidence of urgent and unavoidable danger.
Objective standards
A person’s subjective belief is not enough. Courts assess whether a reasonable person in the same situation would have acted similarly and whether alternatives truly did not exist.
Because of these strict requirements, necessity is typically argued only in well-documented and exceptional cases.
Necessity vs Duress
Necessity is often confused with duress. Both involve a person acting under pressure. However, duress involves threats from another person, while necessity involves pressure from circumstances. Proper legal analysis is essential to determine which defence, if any, applies.
If You Believe Necessity May Apply to Your Case
If you have been charged in British Columbia and believe you acted because of an emergency, the necessity defence may be relevant. These cases are highly fact-specific. Courts require strong evidence of imminent danger and the absence of reasonable alternatives.
A knowledgeable defence lawyer can review your case, analyse the facts and determine whether necessity is a viable argument.
Contact Michael Shapray for Experienced Criminal Defence Guidance
If you are facing criminal charges related to an emergency situation or believe the necessity defence may apply, contact Michael Shapray. He has extensive experience analysing urgent fact patterns and building effective defence strategies grounded in Canadian law. Reach out today for advice tailored to your case and protect your rights moving forward.