Is necessity an excuse or a justification?

Two problems with thinking of it as a "lesser evils" justification:

1. "To go beyond [what the Criminal Code has specified] and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law."

2. "It [also] would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions."


These problems are avoided if we conceptualize necessity as an excuse:

"The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable."

Necessity excuses because actions performed under necessity are in some sense involuntary. It isn't a failure of proof defence because such actions are normatively rather than physically involuntary.


Limitations on the defence:

1. It is available only "in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible."

2. "[T]he harm inflicted must be less than the harm sought to be avoided."

And:

Illegality is not in itself a bar to the availability of the defence.

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