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No Choice but to Drive Drunk? The Rare Defence of “Necessity.”

Although it is never a good idea to get behind the wheel while under the influence of drugs or alcohol, there are certain – and rare — circumstances when drivers have may feel that they have no choice but to drive impaired. This unique defence is known as “necessity” or, more colloquially, the “lesser of two evils” defence.

In Canada and the United States, courts have recognized that, on rare occasions, drivers have a legitimate excuse to engage in impaired driving. Canadian common law, as developed through court cases, includes several examples of situations in which drivers used the necessity defence to overturn or defeat impaired driving charges.

According to Canadian jurisprudence, a driver must prove three elements to prove necessity:

  1. The accused must be in imminent danger or peril;
  2. The accused must have had no reasonable legal alternative to driving impaired; and
  3. The harm inflicted by the accused’s actions must be less than the harm he tried to avoid.

These elements were first set forth in 1984 by the Supreme Court of Canada in Perka v. The Queen. Although the necessity defence had been used successfully in Canada before, the High Court in Perka established a definitive test for determining if the facts of a particular case qualify as “necessity.” The Perka court also indicated that the necessity defence should also be “strictly controlled and scrupulously limited” to those cases where a defendant truly had no other choice but to violate the law.

Cases Where Drivers Were Acquitted Using Necessity

Although the necessity defence is quite rare, there are several cases in which defendants have successfully applied it to their particular facts.

In R. v. Murray, a 2010 case out of Alberta, the court overturned a driver’s conviction, holding that he was justified in driving away from a bar after he and his friends were beaten and pursued by their aggressors. The defendant drove his work van to safety.

In 2013 in R. v. Pleau, a judge in Nova Scotia acquitted Roger Pleau of an impaired driving charge under the necessity defence. After an evening of drinking, Mr. Pleau had been smoking a cigarette with a friend outside their apartment building when his friend slipped on some stairs and gashed his head open. Because the other gentleman was having difficulty breathing, Pleau panicked and drove his friend to a nearby hospital. A nurse called the police after suspecting he was drunk. Although the judge accepted the necessity defence, he noted that it is a rare exception to the law.

In another 2013 case out of Saskatchewan, the defendant in R. v. Maxay was acquitted of impaired driving because she only drove to escape her sister’s enraged boyfriend, who had violently attacked her and had a history of violence. After she fled her sister’s home, he pursued her in his vehicle and rammed it into the back of her car.

Necessity Is a Rare Defence

As the case law demonstrates, necessity is a rare defence that is only applicable in certain situations. Not having taxi fare or wanting to get home in time to watch the game do not constitute “necessity.” Although there are always exceptions to any law, the safest decision when you have been drinking is to leave the driving to someone else.

The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of law familiar to our firm lawyers. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website as such.

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