Definition: Necessity excuses criminal conduct where the accused was acting in response to emergency circumstances in order to prevent a greater evil from occurring
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- R. v. Perka 1984 SCC
- Questions raised by this cases and answers provided
- R. v. Latimer 2001 SCC
- Questions raised by this case and answers provided
- R. v. Ungar 2002 Ont C.J.
- Questions this case answers
- Defence Evidentiary burden Persuasive burden
- Mistake of law ( due diligence)
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Crim law: week 9 Necessity (and burdens of proof in defences) Overview of Necessity: Definition: Necessity excuses criminal conduct where the accused was acting in response to emergency circumstances in order to prevent a greater evil from occurring. -a common law defence recognized in Perka; applies to all offences in Code. -question raised in Latimer as to whether it could apply to murder. R. v. Perka 1984 SCC A (x 4) were on a boat conveying cannabis from one destination in international waters to another. The boat started to have difficulties, so they made an emergency landing in a bay on Vancouver Island. Their evidence was that they intended to repair the boat, reload the drugs, and proceed. They were charged with importing cannabis. Per Dickson J (+3) recognizes a defence of necessity. This operates as an excuse rather than a justification, and is confined to circumstances in which A’s actions were normatively involuntary. Points to Glean: -There are three elements to defence of necessity: (13-6)
-It is not directly relevant that A’s preceding conduct was illegal, but A cannot cause a situation where the clear consequences are what actually ensued, and then seek recourse to necessity. -Defence must raise an air of reality about elements, then Crown must disprove _________. Questions raised by this cases and answers provided: Q – what is the test / elements for the defence of necessity? A- Q – does an accused’s illegal conduct preclude reliance on the defence? A – no, except if the situating giving rise to the emergency was a ____________ ________________ consequence of the accused’s conduct. Q – does the defence of necessity apply to any criminal offence? A – Q – does the accused have the burden of proving this defence on a b. of p.? A – no, A only has burden of establishing an ‘air of reality’ for all 3 elements; once that threshold has been met, the Crown must prove, BRD, that it _______ ______ _________. R. v. Latimer 2001 SCC A killed his daughter, who suffered from severe cerebral palsy and experienced continual pain. He pleaded necessity in defence to 2nd degree murder, but TJ refused to leave this defence to the jury. Per curiam Necessity is narrow and of limited application. There was no air of reality to any of three elements of the defence in this case. First two elements set out by Dickson J. in Perka are assessed on a modified objective standard, and A must have an honest belief in both factors. Proportionality is assessed on a purely objective standard – “harm avoided must be either comparable to, or clearly greater than, the harm inflicted” (13-13). Court expressed doubt about whether homicide could ever be a proportionate response, but left this question for another day. (i.e., ‘modified objective standard’ in this case means: “an objective evaluation [of first two stages of necessity test], but one that takes into account the situation and characteristics of the particular accused person.”) (13-13) Points to Glean: -all three stages of the Perka test are assessed objectively; the first two are also assessed _______________. -i.e., Did the accused believe there was an emergency with a serious peril to be avoided; and was there no legal alternative? In assessing both questions, the “reasonable person” is assumed to be in a similar situation, with similar ________________ _________________ to the accused. -a “mercy-killing” of this kind is not _______________ under the defence of necessity. Questions raised by this case and answers provided: Q – Is the ‘reasonable person’ assessing the first two stages of the test in a similar situation to that of the accused? A – Q – what is meant by ‘proportionate’ response in the third stage? A – the act must be _____ to or ______ __________ than the harm sought to be avoided. Q – can you rely on the defence of necessity if you take a person’s life to spare them from serious, ongoing pain which is life-threatening? A – no; there is ___________________; no lack of ________ alternatives; and killing the person is a _____________________ response to the victim’s pain. R. v. Ungar 2002 Ont C.J. A was charged with dangerous operation of a motor vehicle. He drove on the wrong side of the street and broke the speed limit with lights flashing while driving to deliver emergency medical assistance to an injured woman. Lampkin J. It was not a reasonable legal alternative to fail to respond to the call for assistance. The defence of necessity succeeds and the Crown should have exercised its discretion not to prosecute. Questions this case answers: Q – will speeding / driving dangerously be excused by necessity if a person’s life is in peril? A – Burdens of Proof in Defences
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