Necessity and death: lessons from Latimer and the case of the conjoined twins

The availability of the defence of necessity in cases of homicide is a complex issue in both Canadian and British jurisprudence. This article examines the divergent judicial and academic views and argues that, while necessity may be available for certain kinds of homicide, it should be rejected as a legitimate defence to intentional killings. The author looks closely at two recent cases in which the question arose as to whether or not killing a human being is ever justifiable or excusable on the basis of necessity: the Canadian case of R. v. Latimer and the British case of Re A (Children). The author argues that the approach of the Latimer court is preferable, advancing this position from a number of angles. Underlying rationales for the defence of necessity in Anglo-Canadian jurisprudence are examined, as well as the conceptually similar defence of duress, both at common law and in s. 17 of the Criminal Code. Both of these points are reinforced and analyzed via a discussion of the sanctity-of-life principle in Canadian criminal law. The article makes clear the essential nature of the issues raised in both Latimer and Re A (Children), as they engage fundamental questions of value for our society.