For a general discussion of the necessity defense, see necessity defense.
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Canadian criminal law allows for a common law defence of necessity. Necessitas non habet legem; "Necessity knows no law." This well-known maxim reflects the theoretical basis of the defence of necessity: that in dire circumstances of looming peril, the claims of positive law seems to weaken.[1] This controversial common law or judge-made defence has only been firmly recognized in Canadian law since 1984.[1] It is recognized in Canada as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe avenue of escape or legal way out of the situation.[1]
There is an objective or reasonableness requirement that requires the accused to reasonably resist the pressures that led to the commission of the crime.[1] Anyone is entitled, by virtue of s.8(3) of the Criminal Code, to rely upon any excuse or defense available to him at common law.
^ abcdKent Roach et al, Criminal Law and Procedure (Toronto: Emond, 2015) at 961.
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