Necessity Defence In Alberta – The Lesser Of The Two Evils

October 13, 2022

Necessity Defence In Alberta - The Lesser Of The Two Evils

While every Canadian province strictly abides by various provincial and federal regulations and sets stringent penalties for criminal offences, there is reasonable room for the benefit of the doubt for the defendant. That is, you shouldn’t fear a conviction until and unless you voluntarily engage in an act prohibited by the Criminal Code or any other legislation thereof.

In truth, there are circumstances in which an act may appear illegal or harsh, but there is a need to judge events from the defendant’s perspective.

Read Also: What Are Your Rights As A Suspect During A Criminal Investigation?

Did the accused commit the offence out of their free will, or was there a dire need to do so? During our years of practice in Edmonton as top-rated criminal defence lawyers, we have encountered numerous instances where the accused turned out innocent in light of the circumstances that prompted their actions. The best examples of such occurrences are self-defence, defence of duress, and necessity defence.

However, it is not simply sufficient for you to claim that an offence was an act of self-defence. Only an experienced and reputed criminal defence lawyer has the prerequisite expertise to navigate the judicial system to build a strong self, duress, or necessity defence case.

In this regard, the most complex aspect is differentiating the above three defences from each other. For the purpose of this blog post, we shall have a systematic look at the defence of necessity and its legal applicability. While the three defences appear to be almost the same, their legal connotations and applications are widely dissimilar.

Self, Duress, And Necessity Defences

The stigma of criminal liability is a scary concept. Given the stringent regulations surrounding assault and other aggressive offences in Canada, it is not difficult to understand why. Like any other civilized society, the nation has strict laws in place to protect every citizen’s rights.

However, that does not mean the accused doesn’t stand a chance after criminal charges are pressed against them.

In the Canadian legal system, three main instances where a supposedly illegal act does not attract any criminal prosecution include:

Self Defence

Although we discourage individuals from taking the law into their hands, the legal system allows people to defend themselves using means that are reasonable in the current circumstances when their life or property is in danger. In this case, there are three factors the courts will consider including:

  • The defendant had reasonable grounds to believe that the alleged victim would have used force or carried out their threats
  • Whether the defended truly intended to protect themselves
  • Whether the act was reasonable in the prevailing circumstances

For instance, if an unarmed robber breaks into your house, kicking them between the legs would be a reasonable act of self-defence. However, shooting them would be unreasonable.

Defence Of Duress

Duress means coercing someone by means of violence or threats to perform a specific act. In the case of this defence, the accused claims that they had no choice but to perform the illegal deed due to death or severe injury threats. This defence is closely related to self-defence, but the slight difference here is that another individual threatens the accused to perform the illegal act.

The following must be present for duress:

  • The accused faced a reasonable present or future death or injury threat
  • The accused had reasonable grounds to believe that the person coercing them had the means to carry out the threats
  • The defendant had other means of escape except performing the act
  • The consequences of the accused’s actions are not disproportionate to the harm threatened to them

An example would be an individual placing a loaded gun on the accused’s head and asking them to steal all the cash from their employer.

Necessity Defence

As the name suggests, this defence claims that an accused did what was reasonable and necessary in the situation they faced. While duress deals with coerced acts, necessity defence deals with a choice between two illegal or harmful acts. Although there is no coercion, there must be reasonable grounds that indicate that the crime was not voluntarily committed.

In this case, the accused has no choice, but two choose the lesser of the two evil alternatives. Mainly, this kind of defence applies to situations whereby people commit an illegal and less harmful crime during an emergency in order to prevent substantial harm. Thus, there must be clear evidence that the accused committed the crime in light of imminent danger or risk of peril.

So for the defence of necessity to be applicable, the following must be present:

  • Clear, imminent danger or chances of peril
  • The accused had no other legal choice but to proceed with one of the illegal acts to prevent significant harm
  • The harm caused by the accused’s action should not be disproportionate or more than the damage avoided

The Onus To Prove Necessity

The defendant does not have the responsibility to prove that there was a risk of peril and that they did not have any other choice but to choose one of the evil acts. In fact, it is upon the Crown to prove that the aforementioned factors were not present at the time of the offence.

Nonetheless, it is crucial to seek defence services from a reputed criminal defence lawyer that can diligently build your defence and save you from the legal and reputational damages of a conviction.

About Slaferek Law

We are a long-standing team of highly reputed criminal defence lawyers in Edmonton with hands-on experience in all aspects of criminal law. Learn more about Slaferek Law and our team.

Are you facing assault charges? Contact us now for unrivalled defence services.

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contact Darin H. Slaferek

Providing a dedicated focus on criminal law, practicing ethical, effective, and efficient solutions to serve the best interests of our clients.

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