Saskatchwan woman cites rare ‘defence of necessity’ for driving drunk

Matthew Coutts
Saskatchwan woman cites rare ‘defence of necessity’ for driving drunk

A Saskatchewan woman who admitted to driving under the influence was acquitted last month under the rare legal defence that she was forced to break the law out of necessity.

Serena Maxay was charged last year with two counts of operating a motor vehicle with a blood alcohol level above the legal limit, which she testified came after fleeing the home of an abusive relative.

According to a September ruling released this week, Maxay, 32, of Saskatchewan's White Bear First Nations, said she a two other women drove to her brother-in-law's home and had a few drinks.

Maxay had planned to stay the night but the brother-in-law, who had been previously drinking at a bar, "lost it" and began flipping furniture and threatening Maxay, even picking her up and throwing her.

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The three women fled the home and felt the only safe thing to do was to drive away. The brother-in-law caught up to them in his truck and rammed into her car, sending them into the ditch, where police later found them.

Judge James Benison said he believed Maxay only got behind the wheel to escape a dangerous situation, dismissing the charges on the grounds of necessity.

According to the court's analysis, the defence of necessity requires three elements:

  • The accused must be in imminent peril or danger

  • There must be an absence of legal alternative

  • There must be proportionality between the harm inflicted and the harm avoided.

Jeff Howe, Maxay's lawyer, told the National Post that the necessity defence is rare and very uncommon. It is rarer still for them to succeed. Three of the most famous Canadian necessity defences were rejected, nullified or overturned.

Here are three occasions in which "defence of necessity" has been cited:

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Dr. Henry Morgentaler, on abortion rights: 1976

The infamous abortion doctor employed the defence of necessity in his first trial, arguing that abortions were necessary for his patients' health. One patient testified that she would have been willing to do anything, and pay any price, had Morgentaler rejected her request.

Morgentaler was acquitted by a jury, however the Quebec appeal court (later supported by the Supreme Court) overturned the acquittal in 1976 and sentenced him to prison. The case would later lead to the passing of the Morgentaler Amendment, meaning appeal courts could order a new trial but not replace a jury acquittal with a conviction.

William Francis Perka, 'accidental' drug smuggling: 1984

Drug smugglers including William Perka cited the necessity defence after an elaborate operation to collect a supply of cannabis that had been dropped by an airplane off the coast of Washington and transport it to Alaska hit rough waters and ended up running afoul of the RCMP.

The ship took damage during its trip to Alaska. Fearing the ship would sink, the crew testified they were forced to land in Canada and unload their shipment, at which time they were caught. The defence suggested they did not mean to smuggle the drugs into Canada, but were left with no choice.

The Supreme Court later found that the crew could not rely on a defence of necessity. This case established precedent on whether the necessity defence was used as a justification or an excuse.

Robert Latimer, Supreme Court of Canada: 2001

Latimer is a Saskatchewan farmer who was convicted in 1997 of second-degree murder his disabled daughter's death. The case led to intense debate over the ethics surrounding mercy killings. The court determined that the defence of necessity argument was not relevant in Latimer's case because the circumstances did not constitute an immediate emergency at the time of the death and that there were options other than killing his daughter.

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