Necessity
The defences of mistake of law, duress and self-defence are not covered here, although the defence of necessity encompasses the latter two to some extent. Not required for the exam: Hibbert, discussed at pp. 502 and 969 (9th ed.), was about a man who was an accomplice in an attempted murder at gunpoint and under fear for his own life. Lavallée was a self-defence case. All of these involve situations of necessity but under different circumstances. They all concern a sort of “moral involuntariness”, as the term is used in Perka. The necessity arises from a situation. Hibbert, decided after Perka, relied on the principle of moral involuntariness from Perka to fashion the rules of duress.
R. v. Dudley and Stephens (1884) Law and morality must not be divorced absolutely.
14 Q.B.D. 273 (C.C.R.)
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FACTS
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Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased Parker, aged 17, were cast away in a storm on the high seas in a yacht. They had barely any supplies, and for three days they had almost nothing to subsist upon. Facing certain starvation, Dudley and Stephens killed the weakened boy and ate him (as did Brooks) in order to subsist. They were rescued four days later and the jury found that they would likely have died had they not killed and eaten one amongst them.
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ISSUES
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Is killing under these circumstances murder?
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HELD
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Yes.
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RATIO
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LORD COLERIDGE C.J.:— “In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men'? The answer must be "No"”
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NOTES
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“But the temptation to the act which existed here was not what the law has ever called necessity.
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“Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it.
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“But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compulsion for the criminal to change or weaken in any manner the legal definition of the crime.”
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According to Wilson J. in Perka at p. 943 (9th ed.), the underlying principle of this case is universality of rights.
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Perka v. R. [1984] Necessity is an excuse, not a justification (3 requirements for the defence).
2 S.C.R. 233
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FACTS
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The appellants are drug smugglers. They loaded a ship with 33 tons of marijuana and set sail from Colombia to Alaska. The ship started falling apart and they weather turned ugly near the B.C. coast. They decided to dock on the West Coast of Vancouver Island. Fearing the vessel was going to capsize, the captain ordered the men to offload the cargo. The police entered the bay the next day, arrested and charged the men with importing cannabis into Canada and possession for the purpose of trafficking. The Crown alleged that the evidence of the ship’s distress was a fabrication. The jury believed (beyond a reasonable doubt) the accused and acquitted them.
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ISSUES
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How should the courts deal with the defence of necessity? Was there a legal alternative to dumping the marijuana in Canada?
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HELD
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Crown’s Appeal dismissed; retrial order sustained (judge did not properly put the question of a “legal way out” before the jury).
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TEST
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The defence of necessity is an excuse, not a justification, i.e., the wrongfulness is not in question. 1The situation must be so emergent and the peril so pressing that normal human instincts cry out for action. 2There must also be no legal way out (demonstrably impossible to comply with law). 3There must be proportionality between the harm inflicted and the harm avoided. Although we speak of defence of necessity, the Crown always bears the burden of proving a voluntary act.
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NOTES
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Jury had to assess the degree of peril in this case.
Criminal theory distinguishes between “justifications” and “excuses”
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Justification: challenges the wrongfulness of an action which technically constitutes a crime.
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Excuse: concedes wrongfulness of the act but asserts circumstances are such that the act ought not to be attributed to the actor.
Does this distinction matter or is it simply academic? The editor of the textbook (Stuart) in his casebook Canadian Criminal Law attaches no significance to the distinction, saying there is nothing practical about the justification and excuse distinction.
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There is nothing laudable or praiseworthy, rightful about what the accused did in this case. The law has not vindicated their act.
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In the Lavallée case there was no other choice (self-defence). In Hibbert it was action under duress. It seems as though all the defences could be called excuses or justifications. (Sklar argues the distinction is academic.)
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All of these cases involve self-preservation and Kant said an act requiring self-preservation is righteous.
However, look at p. 937-8 (9th ed.) where Dickson shows how the distinction can be important:
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In the San Salvador case, the people on the ship called coast guard to tow them into shore. They were towed into a harbour in Nova Scotia and had a shipment of Moroccan marijuana headed for the USA. The crew attempted to burn the ship and everything on it. Clean hands doctrine is at issue. These people were seen as having contributory fault.
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Crime charged against them is compelled by circumstance no matter what their motive is. Taking principles from one discipline (e.g. tort law) and applying them in another (criminal) is theoretically unsound because criminal law seeks to determine whether one is morally blameworthy.
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R. v. Morgentaler, Smoling, and Scott (1985) Necessity recognizes that law must be followed.
(Ont. C.A.) 48 C.R. (3d) 1
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FACTS
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Morgentaler et al. were charged with conspired with intent to “procure the miscarriage of female persons.” The jury acquitted. The Crown brought an appeal challenging the appropriateness of necessity as a defence in this case.
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ISSUES
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Did the judge err in leaving the defence of necessity to the jury?
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HELD
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Yes. The defence was not available to the accused. Appeal allowed.
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RATIO
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The defendants consciously agreed to violate the law out of their dissatisfaction with it. The defence of necessity recognizes that the law must be followed, but there are certain factual situations which arise which may excuse a person for failure to comply with the law.
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NOTES
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The justification/excuse distinction from Perka is salient here.
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The defence of necessity was misconceived [by the trial judge].
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There was nothing involuntary about the agreement that the accused entered into.
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Not only did the defendants fail to make every reasonable effort to comply with the law, but they consciously agreed to violate it.
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This offers no basis for a defence of necessity.
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Lord Denning: “Necessity could very easily become a mask for anarchy.”
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A classic example of necessity is two men on a plank to stop from drowning. If they both hold on, they sink. If one holds on, he can be saved.
R. v. Latimer (2001) Can’t invoke necessity: missing requirements from Perka.
(S.C.C.) 39 C.R. (5th) 1
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FACTS
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Heart wrenching case of man who killed his 12 year old daughter, Tracy. Tracy was stricken with a debilitating, though not terminal, case of cerebral palsy. She had the mental capacity of a 4-month-old baby, had six seizures per day and suffered tremendous pain that medication could not alleviate. The evidence adduced at trial is that the accused was a wonderful father. The trial judge removed the defence of necessity. The jury convicted Latimer of second degree murder. Sask. C.A. dismissed the appeal. Latimer appealed to the S.C.C.
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ISSUES
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Was the trial judge correct to remove the defence of necessity from the jury?
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HELD
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Yes. Appeal dismissed.
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RATIO
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There was no air of reality to Latimer’s defence of necessity (with its three requirements outlined in Perka) and therefore the jury should not have been left to consider this defence.
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NOTES
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The test is a mixed objective/modified objective test falling somewhere between a fully objective and a fully subjective evaluation.
The three requirements are:
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imminent peril (modified objective test)
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There was no urgency as far as the peril is concerned. (Look at the last three lines on p. 957 of 9th ed.) The law cannot allow people to claim necessity based on what they think is right or wrong.
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no reasonable legal alternative (modified objective test)
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the Latimers could have “struggled on” (echoes of Dudley and Stephens)
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proportionality: harm inflicted vs. harm escaped (objective test)
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Is homicide ever proportionate in the context of a necessity defence? The court does not answer this question. P. 960 (9th ed.), English courts allowed doctors to separate conjoined twins which inevitably led to the death of one so that the other could survive.
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SCC: there was no real risk: the harm avoided (allowing her life to continue) was disproportionate to killing her.
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If a person wrongly but honestly believes that parts one and two of the above test have been met, then he is not morally blameworthy.
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In this case, the court found there was no air of reality on all three grounds.
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The constitutionality of the minimum of ten years for this crime (murder in the second degree) was an issue in Latimer but not a topic in this course. We’re only concerned with the necessity defence.
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Note: there was “jury nullification” in the Latimer case in the sense that the accused actually committed a clear first degree murder but was found guilty of second degree.
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Per curiam: when the court wants to emphasize that it is unanimous in its decision. (Sklar says that this is BS; the author of the decision would rather remain anonymous, so they use per curiam instead of identifying the author of the decision.)
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