Primus c. R., 2010 QCCA 1541
[21] The Court refined the parameters of the defence of necessity, but harkening back to the reasons of Dickson, J. in Perka, it reiterated that "[…] the defence of necessity must be of limited application."[8] It then went on to consider the application of the three criteria required to allow the defence to be considered: first, imminent peril or danger; second, no reasonable alternative to disobeying the law; and third, proportionality between the harm inflicted and the harm avoided.[9] In doing so, it dismissed the appeal against conviction that had been affirmed by the Saskatchewan Court of Appeal.[10]
[22] A recent application of the defence of necessity can be seen from the judgment of Bourque, J. of the Ontario Court of Justice in R. v. Costoff.[11] He described the analytical framework a trial judge must adopt when the defence of necessity is raised in the following manner:
17 The defence of "necessity" is set out in Perka v. R., 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232 (S.C.C.). 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 (Ont. C.J.) 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. S. (L.), [2001] B.C.J. No. 3062 (B.C. Prov. Ct.), 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 R. v. Latimer, 2001 SCC 1 (CanLII), [2001] S.C.J. No. 1 (S.C.C.), 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)
I agree with that statement of the law.
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