R. v. Costoff, 2010 ONCJ 109 (CanLII)
[17] The defence of “necessity” is set out in R. v. Perka 1984 CanLII 23 (S.C.C.), [1984] 2 S.C.R. 232. There are three elements to the defence of necessity:
• Imminent danger and peril.
• No reasonable legal alternative to what the defendant did.
• A relationship between the harm inflicted and the harm avoided.
[18] For the defence to be successful, I must have a reasonable doubt about each of these elements. Where an accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt (R. v. Gyetvan [2005] O.J. No. 5813 para 18:
“The state of the law, therefore, is that for the necessity defence to prevail, the trial judge must be satisfied that there is evidence sufficient to give an air of reality of each of the three requirements. Having considered the evidence in this case and the applicable law, I am satisfied that the evidence here is sufficient to give an air of reality to each of these requirements.”
[19] In a significant review of the law in R. v. L.S. [2001] B.C.J. No. 3062, the justice observed at para 25:
“Generally, if there is clear evidence that the accused, or someone under his or her protection is at an immediate risk of physical harm, if no reasonable alternative is available and, if the driving is for no longer than is necessary to escape the harm, the defence of necessity will succeed”.
[20] In Regina v. Latimer [2001] S.C.J. No 1, the court observed that the standard is a modified objective test which takes into account the situation and characteristics of the particular accused:
“The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open.” (para. 33)
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