Defences Introduction to Defences

Conceptualization of Necessity as an Excuse or Justification

Perka v The Queen SCC 1984 [Defence of Necessity as Justification vs. Excuse; Excuse = morally involuntary, had no legal reasonable alternative]

Issue: Should boat get acquitted on defence of necessity?

Decision: New Trial. Should have put to jury: was there reasonable legal alternative?

Reasons: (Dickson J)

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  Defence of necessity exists
  
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  Criminal theory recognizes distinction btw justifications and excuses
  
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    Sankoff: does not buy distinction  look at self defence being justified, or excuse.
    

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  Restrict Defence to Urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible
  
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    Restriction focuses on “moral involuntariness” on behavior by providing number of tests for determining if wrongful act was only realistic option – or was it a choice
    
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      If it was a choice, then it could not have been involuntary
      
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    1) Requirement for urgent/imminent peril  tests whether it was unavoidable for actor to act at all. Must be so pressing that human instinct crys out for action.
    
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    2) Compliance with law be “demonstrably impossible  Could have acted to avoid peril/harm without breaking the law? Was there a legal way out?
    
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      Must be no reasonable legal alternative
      
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    3) Proportionality: no excuse for infliction of greater harm to allow actor to avert lesser evil
    
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  If one is already doing something illegal, and peril comes up, past conduct colours response to emergency as also wrongful
  
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  Necessity goes to EXCUSE conduct, not to JUSTIFY it  does not vindicate the act
  
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  Case at hand:
  
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    Were defence to succeed = not vindicate importing weed.
    
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    The question is not is what he did wrongful but  is what he did VOLUNTARY?
    
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    Maybe they came into Canadian waters due to self-preservation
    
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    Fact that they were engaged in illegal conduct would not disentitle them to raise the defence alone
    
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    Trial judge directed jury properly to necessity but should have posed questions
    
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      Was emergency real? Did it constitute immediate threat of harm? Was response proportionate? Was the danger one that social would reasonable expect average person to withstand? Was there reasonable legal alternative?
      

1. 
   DoN conceptualized as either justification or an excuse
   
2. 
   Should be recognized in Canada as an excuse by virtue of s 8(3) of code
   
3. 
   Necessity as an excuse implies no vindication of deeds
   
4. 
   The criterion is moral involuntariness of the wrongful action
   
5. 
   Involuntariness is measured on basis of society’s expectation of appropriate and normal resistance to pressue
   
6. 
   Negligence or involvement in criminal/immoral activity dos not disentitle the actor to the excuse of necessity
   
7. 
   Actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle
   
8. 
   Existence of reasonable legal alternative disentitles, since involuntary requires inevitable, unavoidable, afford not reasonable opportunity for alternative course of action that does not involve breach of law
   
9. 
   Defence only applies in circumstances of imminent risk where act was taken to avoid direct and immediate peril
   
10. 
    Where accused places before court sufficient evidence to raise the issue, onus is on crown to meet it BYD
    
11. 
    If necessitous situation was foreseeable to reasonable observer, and actor contemplated that action could give rise to emergency requiring breaking the law, then defence not available
    

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  Disagrees with closing door on justification as appropriate judicial basis in some cases
  
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  Fact that one act done out of urgency, and another after some contemplation = not sufficient distinguish
  
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  Justification must be premised on need to fulfill duty conflicting with one which the accused is charged with having breached
  
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    Ie. Conflicting duty
    
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      Ie. Necessary to rescue someone to whom one owes a positive duty of law to rescue
      
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  Where necessity is invoked as justification for violation,
  
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    1) justification must be restricted to situations where accused’s act constitutes performance of a duty recognized by law
    
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    2) Proportionality: defence rests on rightfulness of accused’s choice of one duty over the other
    
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  Note: Calculation is not simply mere utilitarian calculation of lives saved vs. deaths avoided, must assess nature of rights and duties
  
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  Crucial question for justification defence: whether the accused’s act can be said to represent a furtherance of or a detraction from the principle of the universality of rights
  

TH: Dickson CJ says: "no system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value". This corresponds closely with:

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  Section 19: Ignorance of the law is not an excuse
  

TH: Which of the following accused has a better chance at raising a necessity defence:

A) Jim breaks into a house to retrieve something he feels the homeowner took from him. An alarm goes off, and private security surround Jim. He grabs a bike and takes off.

OR

B) Fred breaks into a car. Riot breaks out. Hotwires the care to escape.

1. 
   Is peril foreseeable? (In A - no, not clear he will face physical danger) (B – could face danger)
   
2. 
   If there is a legal alternative (In A – he can get caught. That is legal) (B – must leave)
   

TH: Accused went to party to retrieve stolen keg. Knew it would be problematic. Drove up, 40ppl attack his car, drives away and in the process, injures 2 ppl. Charged with dangerous operation of car causing bodily harm.

Valid claim of necessity?

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  Is the danger that is causing the peril foreseeable? Yes.
  
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  Does he have much choice? Is there an alternative legal alternative? NO. He was morally involuntary.
  

TH: Accused at end of 60 day fast, breaks into house in winter, with hypothermia to eat food. Passes out. Charged with breaking and entering.

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  Was imminent peril foreseeable? Yes.
  
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  Is there an alternative legal alternative? Yes. Knock on someones house. He was morally voluntary. He had options.