Case Brief Wiki


  1. When must the defence of necessity be charged to a jury?


Conviction and prison sentence upheld


The court states that the defence of necessity does not apply here because there was no air of reality in respect to any of the three necessary elements for necessity. Tracy was not in immediate peril as there was no indication that she was going to die any time soon and Latimer had no reason to believe that there was. There were obviously lots of legal alternatives to killing her. The proportionality test fails because killing someone is more serious then them being put through pain (although this raises the question of whether death is ever better than pain). Generally in cases of necessity it is the accused that is in an emergency and going to suffer if they do not act illegally, not someone else who is in the "emergency" while the accused faces no risk.

Latimer also argued that having second-degree murder impose a mandatory life sentence amounted to "cruel and unusual punishment" in this case, and that he should receive a constitutional exemption from the minimum sentence. This argument is rejected because he cannot show that the sentence is "grossly disproportionate" to the punishment for the most serious crime known to man – murder.


To charge a jury with respect to the defence of necessity there must be an air of reality for all three aspects of necessity.