Does the defence of necessity have an air of reality?

The defence of necessity may only be considered by the trier of fact if there is an air of reality to it. For the defence of necessity to have an air of reality, the question is whether there is sufficient evidence of all three requirements for the defence that, if believed, could allow the trier of fact to conclude that the defence applied and to acquit the accused: R v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 3 at paras. 35-36.

The trial judge must assume that the evidence provided in support of the defence is true in determining whether the defence may be considered. At this stage, the trial judge should not assess credibility, make findings of fact, or draw factual inferences: R v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29 at paras. 53-54. The trial judge may perform only a limited, common sense weighing of the evidence in assessing whether the defence has an air of reality: R v. Larose, 2013 BCCA 12 at paras. 27-28.