(July 2009)
I will now instruct you on the defence of necessity.
(NOA) is justified in breaking the law on grounds of necessity if all of the following three conditions are present:
1. (NOA) reasonably believed that s/he (or (NO3P)) faced a clear and imminent[1] danger[2] (or other, specify); and
2. (NOA) reasonably believed that s/he had no reasonable, lawful alternative to breaking the law; and
3. The harm (NOA) caused was not disproportionate to the harm s/he was trying to avoid.
(NOA) is not required to prove that s/he acted under necessity. The Crown must prove beyond a reasonable doubt that s/he did not.
Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for necessity was absent, you must acquit (NOA) of (specify offence).
First – Has the Crown proved beyond a reasonable doubt that (NOA) did not reasonably believe that s/he (or (NO3P)) faced a clear and imminent danger (or other, specify)?
Second – Has the Crown proved beyond a reasonable doubt that (NOA) had a reasonable lawful alternative to breaking the law?
Third – Has the Crown proved beyond a reasonable doubt that the harm (NOA) caused was disproportionate to the harm s/he was trying to avoid?
If each of you finds that the answer to one or more of these questions is “yes”, the defence of necessity fails. You do not all have to agree on which of these questions is answered “yes”.
If you agree that the answer to all three questions is “no”, the conditions for necessity are present and you must acquit (NOA) of (specify offence).
I will now review each of these questions with you.
If it has, the defence of necessity fails.
Necessity will excuse a person’s unlawful conduct only if he or she is facing a clear and imminent danger. A person must believe that he or she is forced to take action because of a crisis of urgent and pressing circumstances. He or she must also believe that the harm is imminent - that is, on the verge of occurring - and that if something is not done to avoid it the consequences are virtually certain to occur. Consider whether at the time of the offence, (NOA) believed that s/he faced a risk of imminent harm.
(NOA)’s belief must have been reasonable. Consider all the evidence and ask yourselves whether a reasonable person in the same circumstances and with (NOA)’s personal characteristics, such as his/her age, gender, and background (set out other relevant personal characteristics), would have perceived the same risk of imminent harm.
The following instruction concerns contributory fault. This issue will not arise in all cases of necessity. Include it only where it arises on the facts.
It does not matter whether (NOA)’s negligence contributed to a situation of necessity. It also does not matter if (NOA) was engaged in some form of wrongdoing at the time. On the other hand, if (NOA) deliberately created these circumstances, s/he cannot claim that s/he acted out of necessity.
Judges may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.
If it has, the defence of necessity fails.
Necessity excuses unlawful conduct only if a person believes that the force of circumstances and the risk of harm are so great that he or she had no real choice but to break the law. In addition, that belief must be reasonable.
The circumstances must be so compelling that no reasonable person could be expected to act differently. The circumstances must afford no reasonable opportunity for an alternative course of action that would avoid a breach of the law.
Ask yourselves whether (NOA) believed that s/he had no real choice but to break the law. (NOA)’s belief must be reasonable. One factor you must consider is whether there was a reasonable lawful alternative. Another factor you must consider is whether a reasonable person in the same circumstances and with (NOA)’s personal characteristics would have believed there was no real choice.
The Crown must prove beyond a reasonable doubt that (NOA) did not believe that s/he had no reasonable, lawful alternative, or that (NOA)’s belief was not reasonable. In either case, the defense of necessity fails.
(Consider whether to review relevant evidence here.)
If it has, the defence fails.
Necessity excuses unlawful conduct only if the harm caused by that conduct is not disproportionate to the harm it avoids.
You must consider this question on a purely objective basis, that is, whether a reasonable person would think (NOA)’s response was proportionate to the harm s/he was trying to prevent.
Compare the harm (NOA) was trying to avoid (specify) with the harm (NOA) caused (specify).
(Consider whether to review relevant evidence here.)
To sum up:
(Review relevant evidence here if you have not done so already.)
Ask yourselves:
If it has, the defence of necessity fails. If not, then consider the next question.
If it has, the defence of necessity fails. If not, then consider the next question.
If it has, the defence of necessity fails. If it has not, you must acquit (NOA) on the basis of necessity.
To repeat, if each of you finds that the answer to any one of these three questions is “yes”, the defence of necessity fails. It does not matter if you do not all agree on which of these questions is answered “yes.”
If you all agree that the answer to all three questions is “no”, then the conditions for necessity are present and you must acquit (NOA) of (specify offence).
[1] See R. v. Latimer, [2001] 1 S.C.R. 3, and R. v. Perka, [1984] 2 S.C.R. 232.
[2] Although there is no appellate authority on the point, there are trial decisions that apply the defence of necessity to the preservation of property: see R. v. Hill (1999), 42 M.V.R. (3d) 141 (B.C.P.C.). Lexis Advance Quicklaw].