During a criminal jury trial involving allegations connected to the use of forged travel documents to bring a minor from Sri Lanka to Canada, the court was required to determine whether there was an air of reality to the common law excuse of necessity.
The alleged peril related to a third party, a young Tamil male who later obtained refugee protection in Canada due to risks of detention, disappearance, or torture in Sri Lanka.
The court reviewed the governing legal framework for necessity from Supreme Court of Canada jurisprudence and considered whether the evidence could support findings of imminent peril and absence of reasonable legal alternatives.
Although the accused did not testify, circumstantial evidence suggested they may have acted to help the child escape danger rather than for profit.
The court concluded that the evidentiary record was capable of supporting the inference required and that the defence of necessity should be left with the jury.
