Necessity Necessity



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Necessity
Necessity - an offence committed under circumstances of great urgency and where there was no opportunity to pursue an alternative cause of action that did not involve a breach of the law

  • complete defence

  • common law defence

The defence of necessity asserts that, in certain emergency situations, persons cannot he held to a strict obedience of the law.

However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where true "involuntariness" is found.



Elements

  1. The accused must be in imminent peril or danger

  2. There must be no reasonable legal alternative to disobeying the law.

  3. The harm inflicted by the accused must be proportional to the harm avoided by the accused.

1Threshold test - there must be an “air of reality” before the judge will

present the defence to the jury

- once defence is accepted, it is up to the crown to prove b.a.r.d. that it was not necessity

1Related cases

- The Queen v. Dudley & Stephens (p.946)

- Perka et al. v. The Queen (p.956)

- R v. Derksen (p.964)

- R v. McKay (p. 966)

- R v. Lalonde (p. 978)




Necessity Common Law

Canadian criminal law allows for a common law defence of necessity. The leading case for the defence was established in the case of Perka v. The Queen [1984] 2 S.C.R. 232. In it, Dickson J. described the rationale for the defence as recognition that:



a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.

Each element must be proven on an objective standard. The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.



At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

With regard to the second element, if there was a realistic or objectively reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted.

In R. v. Latimer, the Courts ruled that assisted suicide could not be excused by a defence of necessity.

Perka et al. v. The Queen
Facts:

- 1984, Supreme Court of Canada

- in 1979, appellants were to deliver a $6 million load of cannabis (marijuana) from Columbia to Alaska

- the ship encountered many mechanical problems and bad weather

- for safety they decided to dock on the shore in British Columbia and make repairs

- as the ship was coming into shore it hit the bottom because the depth sounder was broken

- the ship was listing severely to the starboard side

- they feared that the ship would capsize (tip over)

- they decided to throw the cargo overboard to help keep the ship afloat

- the police came and seized the marijuana

- they were charged with importing drugs and possession with the purpose of trafficking

- they claimed that they did not plan to import the drugs to Canada, they just stopped to repair the ship

- they claimed that it was necessity because the ship was in danger of sinking
Trial - acquitted

- crown appeals


Court of Appeal - reversed

- new trial ordered


Supreme Court
Issues:

- did the trial judge err when he presented the defence of necessity to the jury

- was there “reasonable alternative”


Ratio:

- new trial ordered

- judge did err - he explained

- emergency is real

- immediate threat of peril

- beyond normal appropriate resistence to pressure

- response must be proportional to peril (threat)
- but forgot to include “no reasonable alternative”


R v. McKay and White
Facts:

- 1992, British Columbia Court of Appeal

- Jan, 1998, Oakalla Prison

- there was a riot which is brought under control

- McKay and White had been moved to the Segregation Unit following the riot

- they escaped, but were found and arrested 4 days later


- they claimed that escape was a necessity because they were wet and cold after being hosed down in the riot, no dry clothes, and insufficient bedding
Trial - guilty

- judge said there was no “air of reality”

- they appealed
Court of Appeal
Issue:

- was there an alternative


Ratio:

- appeal dismissed

- jails are expected to be uncomfortable sometimes

- there was an alternative





R v. Derksen
Facts:

- 26 Feb, 1992 - charged with impaired driving

- Derksen went drinking at the Arbuckle Pub

- he drove there, but arranged a ride home

- at closing time, he saw a guy pushing around a girl out in the parking lot

- Derksen went over to break up the fight

- the guy broke a bottle over Derksen’s hand

- Derksen’s hand is severely cut

- he went back into the pub to try to stop the bleeding with some paper towel

- he tries to phone a cab, but the phone is in use

- his friend who was supposed to pick him up was too drunk to drive

- Derksen finale just drives himself to the hospital

- the nurse notices his erratic driving and calls the police

- Derksen stopped bleeding by the time he got to the hospital

- the police took him and gave him a Breathalyzer test

- they charge him with impaired driving

- he claims necessity
Issues:

- does it meet all the elements of the defence of necessity


Ratio:

- acquitted

- all the elements were met


R v. Lalonde
Facts:

- 1995, Sudbury, Ontario

- Lise Lalonde charged with fraud of Social services

- Lise is 33, has 5 children, applied for financial assistance

- in order to qualify she had to be a single parent living alone with children

- she lied on the application

- she lived with Peter van Deyl, the father

- Peter was abusive to her


- she claimed that it was necessity because Peter was an alcoholic

- if she admitted that she lived with him, then the cheque would be made out in his name and he would spend it all on alcohol

- she feared that it would put the children at risk

- Peter would not support the family


Issues:

- did she meet the elements of necessity


Ratio:

- acquitted

- she did not really meet the element of

- no reasonable alternative



- an imminent threat
- so the judge used the R v.Lavalée precedent and applied “battered woman syndrome”

- in her mind there was no alternative and there was an imminent threat


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