The Ontario Court of Appeal recently considered the defence of necessity in the case of R. v. Guillemette. Guillemette spent an evening at a bar where she consumed at least four large beers while waiting for a friend who did not arrive. She acknowledged that she had consumed too much alcohol to drive herself home, yet she still decided to drive, noting that several men had made her fearful for her safety. While driving home, she got into an accident, injuring one of the men and damaging her car. 

Guillemette claimed at trial that she should be excused for her crimes because she acted out of necessity. The trial judge rejected her position, and she was convicted of: impaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to stop at an accident, receiving a 16 and half-month custodial sentence. 

Guillemette appealed her conviction and sentence on the grounds that: 

(1) her right to silence was breached; 

(2) the reasons for judgment reflect unwarranted assumptions about human behaviour; and

(3) the trial judge failed to properly assess the credibility and reliability of certain Crown witnesses. 

In reviewing the evidence, the Court of Appeal ordered a new trial, on the grounds that the trial judge erred by allowing the trial Crown to elicit evidence of her silence and in drawing an adverse inference from her silence. 

Defence of Necessity 

There was no dispute that Guillemette was significantly intoxicated when she drove and that she significantly damaged her car, however, she argued at trial that she had an excuse for committing the offences as it was necessary to protect herself.  Whether the appellant in fact acted out of necessity was the main issue at trial.

There are three elements to the defence of necessity: 

  1. The accused was faced with an urgent situation involving “clear and imminent” peril.

The peril must be near and unavoidable with the situation “so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable” (R. v Hibbert, SCC).

  1. There was “no reasonable legal alternative” to the accused breaking the law.

The question of reasonableness turns on the particular circumstances of the case with necessity requiring that compliance with the law be demonstrably impossible (R. v Hibbert, SCC). The second part of the test considers whether the accused had any real choice or their actions were so necessary as to make them effectively not “morally voluntary.”

In considering this, the Supreme Court has previously stated that an accused “need not be placed in the last resort imaginable, but he must have no reasonable legal alternative” (R. v. Latimer, SCC). 

In evaluating the defence, the judge also does not need to consider every potential possibility in hindsight. 

  1. There exists a “proportionality between the harm inflicted and the harm avoided” by the accused. 

To be proportional, the harm avoided does not need to “clearly outweigh” the harm inflicted.  The harm avoided must only be of “comparable gravity” to the harm inflicted. Or alternatively, it must be “less than” the harm that was sought to be avoided.[3]

In considering this element on an impaired charge. The harm associated with the offence is grave. The fact that no one is hurt is of little importance. The comparator harm avoided should relate to the “preservation of life.”

Once the defence shows that there is an air of reality to each element of necessity, the onus shifts to the prosecution to disprove one or more of the essential elements of the defence beyond a reasonable doubt.

An accused may be disentitled to using the defence when they have contributory fault. Where the circumstances causing the offence were clearly foreseeable to a reasonable observer and the accused contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then their actions would not be considered involuntary so as to meet the criteria of the defence. 

The Court of Appeal in the instant case noted that while necessity is often referred to as a defence, it is a defence that operates to excuse, but not justify, criminal behaviour. In limited circumstances, it will excuse a person of their crime because the commission of that crime arose from a genuine emergency. 

The Court of Appeal explained that the genesis of the defence of necessity in Canadian law goes back to a 1984 Supreme Court of Canada decision (R. v. Perka), where Dickson J. (as he then was) focused upon the injustice involved in punishing someone for a choice to break the law when that person really had no true choice at all:

At the heart of this defence [of necessity] 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.

The appellant’s evidence-in-chief was directed at these three elements of necessity. She explained the significant fear she was in from the moment that one of the men from the bar entered her car, grabbed her leg, and would not hand over her phone. This fear was combined with what she said was another person’s aggressive behaviour, which included him yelling at her to move her car. The fear only escalated when she got to the end of the alleyway, realized it was a dead-end, and another man entered her car through the driver’s side window. In short, she was surrounded by four men at the end of an alleyway with no way to easily escape. That is why she says that she did what she did. 

Guillemette’s evidence, however, differed from that of the Crown witnesses, making the case turn on her credibility.  

Contact Hicks Adams in Toronto to Assist with Your Criminal Defence 

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