Perka v. The Queen

Perka v. The Queen
Collection
Supreme Court Judgments
Date
1984-10-11
Report
[1984] 2 SCR 232
Case number
17217
Judges
Ritchie, Roland Almon; Dickson, Robert George Brian; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha
On appeal from
British Columbia
Subjects
Appeal
Criminal law
Statutes
Notes
SCC Case Information: 17217
Decision Content
Supreme Court of Canada
Perka v. The Queen, [1984] 2 S.C.R. 232
Date: 1984-10-11
William Francis Perka, Paul Oscar Nelson, William Terry Hines and Stephen Earl Johnson Appellants;
and
Her Majesty The Queen Respondent.
File No.: 17217.
1984: January 31, February 1; 1984: October 11.
Present: Ritchie, Dickson, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Defences—Necessity—Illegal drugs found on distressed vessel seeking refuge in Canadian waters—Charges of importing narcotics and of possession for the purpose of trafficking—Whether defence available—Criminal Code, R.S.C 1970, c. C-34, s. 7(3)—Narcotic Control Act, R.S.C 1970, c. N-1,s. 7(2).
Criminal law—Drug offences—Botanical defence—Whether the Narcotic Control Act intended to include all forms of marihuana—Narcotic Control Act, R.S.C. 1970, c. N-1, s. 2.
Interpretation—Technical and scientific terms—Meaning of the phrase “Cannabis sativa L.”—Meaning frozen at the time of enactment—Narcotic Control Act, R.S.C 1970, c. N-1, s. 2, Schedule: item 3.
Appeal—Arguments on appeal—Whether respondent limited to appellants’ points of law—Rules of the Supreme Court of Canada, SOR/83-74, Rule 29(1).
Following the seizure of their cannabis cargo by the police in Canadian waters, appellants were charged with importing cannabis into Canada and with possession for the purpose of trafficking. At trial, the accused advanced the defence of necessity claiming that they did not plan to import into Canada as their destination was Alaska but that, following a series of mechanical problems aggravated by deteriorating weather, they had decided for the safety of ship and crew to seek refuge on the Canadian shoreline to repair the vessel. The vessel found a sheltered cove but grounded amidships on a rock. The defence tendered evidence that the captain, fearing he was going to capsize, ordered the men to offload the cargo. When the police arrived on the scene most of the marihuana was onshore. The accused also relied upon a “botanical defence” arguing that the Crown had failed to prove that the ship’s cargo was “Cannabis sativa L.” as provided for in the schedule to the Narcotic Control Act. The trial judge, however, withdrew the botanical defence from the jury. The appellants were acquitted. The Court of Appeal set aside the acquittal and ordered a new trial holding that the trial judge erred in refusing to grant the Crown’s application to call rebuttal evidence with respect to the condition of the vessel. The Court also held that the trial judge was correct in withdrawing the botanical defence from the jury.
Held: The appeals should be dismissed.
Per Ritchie, Dickson, Chouinard and Lamer JJ.: The defence of necessity is available in Canada and should be recognized as an excuse operating by virtue of s. 7(3) of the Criminal Code. The essential criteria for the operation of the defence is the moral involuntariness of the wrongful action measured on the basis of society’s expectation of appropriate and normal resistance to pressure. The defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril. The act in question may only be characterized as involuntary where it was inevitable, unavoidable, and where no reasonable opportunity for an alternative course of action that did not involve a breach of the law was available to the accused. As well the harm inflicted by the violation of the law must be less than the harm the accused sought to avoid. Where it was contemplated or ought to have been contemplated by the accused that his actions would likely give rise to an emergency requiring the breach of the law it may not be open to him to claim his response was involuntary; mere negligence or involvement in criminal or immoral activity when the emergency arose, however, will not disentitle an accused from relying upon the defence. Finally, where sufficient evidence is placed before the Court to raise the issue of necessity the onus falls upon the Crown to meet the defence and prove beyond a reasonable doubt that the accused’s act was voluntary; the accused bears no burden of proof. In this case, the trial judge was correct in instructing the jury upon necessity, however, he erred in his directions to them. Although he adequately charged the jury upon the majority of issues pertinent to the proper test for neces- sity he did not direct their attention to the issue of the availability of a reasonable legal alternative. This error goes to the heart of the defence and justifies a new trial.
The trial judge was correct in withdrawing the appellants’ botanical defence from the jury as the phrase “Cannabis sativa L.” in the Narcotic Control Act was meant to embrace all forms of marihuana. In keeping with the doctrine of contemporanea expositio the meaning to be given to this phrase is the meaning the botanical community ascribed to it when the Act became law in 1961. At that time, botanists were virtually unanimous in holding that cannabis (marihuana) consisted only of one species and that the plants which some botanists referred to as “Cannabis indica Lam.” and “Cannabis ruderalis Jan.” were merely subspecies of “Cannabis sativa L.”. Where the legislature has deliberately chosen a specific scientific or technical term to represent an equally specific and particular class of things, it would do violence to Parliament’s intent to give a new meaning to that term whenever the taxonomic consensus among members of the relevant scientific fraternity has shifted.
Since a new trial must be ordered there is no need to decide whether the trial judge erred in refusing to allow the Crown to tender rebuttal evidence.
Per Wilson J.: The defence of necessity must be grounded either on excuse or on justification. The only way in which the defence of necessity can be applied as an excuse is where the accused’s act is done in the interest of self-preservation. Such an act must be characterized not by the voluntariness of the act but by its unpunishable nature. As such, the act may be exempted from culpability if it arose in a life-threatening situation of necessity. Where, however, a defence by way of excuse is premised on compassion for the accused or on a perceived failure to achieve a desired instrumental end of punishment, the judicial response must be to fashion an appropriate sentence but to reject the defence as such. Where necessity is invoked as a justification, the accused must show that he operated under a conflicting legal duty which made his seemingly wrongful act right. Such justification must be premised on a right or duty recognized by law. This excludes conduct attempted to be justified on the ground of an ethical duty internal to the conscience of the accused as well as conduct sought to be justified on the basis of a perceived maximization of social utility resulting from it. Rather, the conduct must stem from the accused’s duty to satisfy his legal obligations and to respect the principle of the universality of rights. The justification therefore does not depend on the immediacy or “normative involuntariness” of the accused’s act. Finally, the justification is not established simply by showing a conflict of legal duties. Since the defence rests on the rightfulness of the accused’s choice of one over the other, the rule of proportionality is central to the evaluation of the justification.
Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Salvador (1981), 59 C.C.C. (2d) 521; R. v. Gilkes (1978), 8 C.R. (3d) 159; R. v. Doud (1982), 18 M.V.R. 146; R. v. Byng (1977), 20 N.S.R. (2d) 125; R. v. Walker (1979), 48 C.C.C. (2d) 126; Reniger v. Fogossa (1551), 1 Plowd. 1; R. v. Dudley and Stephens (1884), 14 Q.B.D. 273; United States v. Holmes, 26 Fed. Cas. 360 (1842); United States v. Bailey, 444 U.S. 394 (1980); United States v. Moylan, 417 F.2d 1002 (1969); United States v. Cullen, 454 F.2d 386 (1971); United States v. Randall, 104 Daily Wash. L. Rep. 2249 (1976); United States v. Richardson, 588 F.2d 1235 (1978); R. v. Morgentaler (1976), 33 C.R.N.S. 244; R. v. Guenther (1978), 8 Alta. L.R. (2d) 125; R. v. Pootlass (1977), 1 C.R. (3d) 378; R. v. Fry (1977), 36 C.C.C. (2d) 396; R. v. Morris (1981), 61 C.C.C. (2d) 163; Southwark London Borough Council v. Williams, [1971] Ch. 734; Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653; Dairy Foods, Inc. v. Co-opérative Agricole de Granby, [1976] 2 S.C.R. 651; The SS. “Tordenskjold” v. The SS. “Euphemia” (1908), 41 S.C.R. 154; Dormuth v. Untereiner, [1964] S.C.R. 122; Brown v. Dean, [1910] A.C. 373; Sharpe v. Wakefield (1888), 22 Q.B.D. 239; Gambart v. Ball (1863), 32 L.J.C.P. 166; Edwards v. Attorney-General for Canada, [1930] A.C. 124; Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127; R. v. Herbert, Coombs and Spanks (1975), 28 C.C.C. (2d) 423; R. v. Deslaurier, Paskell and Pinney, Ont. Co. Ct. (District of York), July 1974; People v. Hamilton, 105 Cal. App. 3d 113 (1980); United States v. Lupo, 652 F.2d 723 (1981); United States v. Kelly, 527 F.2d 961 (1976); United States v. Gavic, 520 F.2d 1346 (1975); United States v. Spann, 515 F.2d 579 (1975); United States v. Walton, 514 F.2d 201 (1975); United States v. Honneus, 508 F.2d 566 (1974); United States v. Kinsey, 505 F.2d 1354 (1974); United States v. Sifuentes, 504 F.2d 845 (1974); United States v. Gaines, 489 F.2d 690 (1974); United States v. Moore, 446 F.2d 448 (1971); Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347; State v. Green, 470 S.W. 2d 565 (1971); People v. Whipple, 279 P. 1008 (1929); People v. Noble, 170 N.W. 2d 916 (1969); State v. St. Clair, 262 S.W. 2d 25 (1953); Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287; R. v. Instan, [1893] 1 Q.B. 450; Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (1910); Ploof v. Putman, 71 A. 188 (1908); Home Office v. Dorset Yacht Co., [1970] A.C. 1004; Mouse’s Case (1608), 12 Co. Rep. 63; Ch. corr., Amiens, April 22, 1898, Ménard’s Case, S. 1899.2.1, referred to.
APPEALS from a judgment of the British Columbia Court of Appeal (1982), 69 C.C.C. (2d) 405, 38 B.C.L.R. 273, allowing the Crown’s appeal from the acquittal of the accused and ordering a new trial. Appeals dismissed.
Clayton c. Ruby, for the appellant Nelson.
Jeffrey Green and Janice R. Dillon, for the appellants Perka, Hines and Johnson.
S. David Frankel, for the respondent.
The judgment of Ritchie, Dickson, Chouinard and Lamer JJ. was delivered by
DICKSON J.—In this case we consider (i) a recurring legal problem, the “necessity” defence; (ii) what is commonly known as the “botanical” or “cannabis species” defence.
I Facts
The appellants are drug smugglers. At trial, they led evidence that in early 1979 three of the appellants were employed, with sixteen crew members, to deliver, by ship (the Samarkanda) a load of cannabis (marihuana) worth $6,000,000 or $7,000,000 from a point in international waters off the coast of Colombia, South America, to a drop point in international waters 200 miles off the coast of Alaska. The ship left Tumaco, Colombia, empty with a port clearance document stating the destination to be Juneau, Alaska. For three weeks the ship remained in international waters off the coast of Colombia. While there, a DC-6 aircraft made four trips, dropping into the water shrimp nets with a total of 634 bales of cannabis which were retrieved by the ship’s longboats.
A “communications” package was also dropped from a light aircraft, giving instructions for a rendez-vous with another vessel, the Julia “B”, which was to pick up the cargo of cannabis from the Samarkanda in international waters off the coast of Alaska. En route, according to the defence evidence, the vessel began to encounter a series of problems; engine breakdowns, overheating generators and malfunctioning navigation devices, aggravated by deteriorating weather. In the meantime the fourth appellant, Nelson, part owner of the illicit cargo, and three other persons left Seattle in a small boat, the Whitecap, intending to rendez‑vous with the Samarkanda at the drop point in Alaska. The problems of the Samarkanda intensified as fuel was consumed. The vessel became lighter, the intakes in the hull for sea water, used as a coolant, lost suction and took in air instead, causing the generators to overheat. At this point the vessel was 180 miles from the Canadian coastline. The weather worsened. There were eight-to-ten-foot swells and a rising wind. It was finally decided for the safety of ship and crew to seek refuge on the Canadian shoreline for the purpose of making temporary repairs. The Whitecap found a sheltered cove on the west coast of Vancouver Island, “No Name Bay”. The Samarkanda followed the Whitecap into the Bay but later grounded amidships on a rock because the depth sounder was not working. The tide ran out. The vessel listed severely to starboard, to the extent that the Captain, fearing the vessel was going to capsize, ordered the men to offload the cargo. That is a brief summary of the defence evidence.
Early on the morning of May 22, 1979 police officers entered No Name Bay in a marked police boat with siren sounding. The Samarkanda and the Whitecap were arrested, as were all the appellants except Perka and Nelson, the same morning. The vessels and 33.49 tons of cannabis marihuana were seized by the police officers.
Charged with importing cannabis into Canada and with possession for the purpose of trafficking, the appellants claimed they did not plan to import into Canada or to leave their cargo of cannabis in Canada. They had planned to make repairs and leave. Expert witnesses on marine matters called by the defence testified that the decision to come ashore was, in the opinion of one witness, expedient and prudent and in the opinion of another, essential. At trial, counsel for the Crown alleged that the evidence of the ship’s distress was a recent fabrication. Crown counsel relied on the circumstances under which the appellants were arrested to belie the “necessity” defence; when the police arrived on the scene most of the marihuana was already onshore, along with plastic ground sheets, battery operated lights, liquor, food, clothing, camp stoves, and sleeping bags. Nevertheless, the jury believed the appellants and acquitted them.
The acquittal was reversed on appeal. After the close of the case for the accused at trial, the Crown had applied to call rebuttal evidence with respect to the condition of the vessel. The trial judge refused the Crown’s application. He held that the defence evidence relating to the happenings in the engine room should not have caught the prosecution by surprise and in the circumstances, the conditions for calling rebuttal evidence had not been met. At trial the defence also relied upon a “botanical defence” arguing that the Crown had failed to prove that the ship’s cargo was “cannabis sativa L.”, as provided for in the Schedule to the Narcotic Control Act, R.S.C. 1970, c. N-1. Thus the appellants had committed no offence. The trial judge withdrew the botanical defence from the jury. On appeal by the Crown, the Court of Appeal, in allowing the appeal, held that the trial judge had erred in refusing to grant leave to the Crown to call rebuttal evidence and, on the cross-appeal held that the judge was correct in withdrawing the botanical defence from the jury.
The appellants have now appealed to this Court. In addition to claiming that the Court of Appeal erred in reversing the trial judge on the rebuttal issue, the appellants contend that the Court of Appeal applied the wrong standard in ordering a new trial. The appellants also contend that the botanical defence should have been left with the jury. The Crown, of course, takes the opposite position on each of these questions and has raised one of its own: whether the trial judge erred in charging the jury with respect to the necessity defence. Because the appellants raised a preliminary objection to this Court even addressing this last issue, I will deal with it first.
The appellants argue that this Court should not consider the Crown’s contentions with respect to the necessity defence because the Court of Appeal decided that the defence was available and the jury could properly be instructed on it. Accordingly, the appellants contend the Crown’s argument with respect to the defence of necessity is really in the nature of a cross‑appeal. Since the Crown does not have an appeal as of right to this Court and since leave has not been granted, the appellants say this Court does not have jurisdiction to decide the issues raised by the “cross-appeal”. In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellants’ points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial. See Brown v. Dean, [1910] A.C. 373; Dormuth v. Untereiner, [1964] S.C.R. 122; The SS. “Tordenskjold” v. The SS. “Euphemia” (1908), 41 S.C.R. 154; Dairy Foods, Inc. v. Co-opérative Agricole de Granby, [1976] 2 S.C.R. 651. That is not the case here. The necessity defence was raised and fully argued in both courts below. Therefore, if we regard the Crown’s submission as an argument to sustain the judgment below, this Court undoubtedly has jurisdiction to hear and decide the issue. Even if we regard the Crown’s submission with regard to necessity as seeking to vary the decision of the court below, the Rules of the Supreme Court of Canada, Rule 29(1), would still give this Court the power to treat the whole case as open:
29. (1) If a respondent intends at the hearing of an appeal to argue that the decision of the court below should be varied, he shall, within thirty days after the service of the notice of appeal or within such time as a Judge allows, give notice of such intention to all parties who may be affected thereby. The omission to give such notice shall not in any way limit the power of the Court to treat the whole case as open but may, in the discretion of the Court, be a ground for an adjournment of the hearing.
(Emphasis added.)
In the event, at the hearing of the appeal the Court did treat the whole case as open and ruled that the Court would address the merits of the Crown’s contentions with respect to the necessity defence. That I now propose to do. II The Necessity Defence
a) History and Background
From earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law. Aristotle, in the Nicomachean Ethics, Book III, 1110a (trans. D. Ross, 1975, at p. 49), discusses the jettisoning of cargo from a ship in distress and remarks that “any sensible man does so” to secure the safety of himself and his crew. Pollard, arguing for the defendant in the case of Reniger v. Fogossa (1551), 1 Plowd. 1 at p. 18, maintained:
…in every Law there are some Things which when they happen a Man may break the Words of the Law, and yet not break the Law itself; and such Things are exempted out of the Penalty of the Law, and the Law privileges them although they are done against the Letter of it, for breaking the Words of the Law is not breaking the Law, so as the Intent of the Law is not broken. And therefore the Words of the Law of Nature, of the Law of this Realm, and of other Realms, and of the Law of God will also yield and give Way to some Acts and things done against the Words of the same Laws, and that is, where the Words of them are broken to avoid greater Inconveniences, or through Necessity, or by Compulsion…
In Leviathan (Pelican ed. 1968), at p. 157, Hobbes writes:
If a man by the terrour of present death, be compelled to doe a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory: yet a man would reason thus, if I doe it not, I die presently: if I doe it, I die afterwards; therefore by doing it, there is time of life gained; Nature therefore compells him to the fact.
To much the same purpose Kant, in The Metaphysical Elements of Justice (trans. Ladd, 1965), discussing the actions of a person who, to save his own life sacrifices that of another, says at p. 41: A penal law applying to such a situation could never have the effect intended, for the threat of an evil that is still uncertain (being condemned to death by a judge) cannot outweigh the fear of an evil that is certain (being drowned). Hence, we must judge that, although an act of self-preservation through violence is not inculpable, it still is unpunishable…
In those jurisdictions in which such a general principle has been recognized or codified it is most often referred to by the term “necessity”. Classic and harrowing instances which have been cited to illustrate the arguments both for and against this principle include the mother who steals food for her starving child, the shipwrecked mariners who resort to cannibalism (R. v. Dudley and Stephens (1884), 14 Q.B.D. 273) or throw passengers overboard to lighten a sinking lifeboat (United States v. Holmes, 26 Fed. Cas. 360 (1842)), and the more mundane case of the motorist who exceeds the speed limit taking an injured person to the hospital.
In the United States a general defence of necessity has been recognized in the statutory law of a number of states and has found its way into the Model Penal Code of the American Law Institute. Attempts have been made, with mixed success, in American jurisdictions to apply the defence to multifarious types of conduct, including cases involving prison escapes, United States v. Bailey, 444 U.S. 394 (1980); social protests and civil disobedience, United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), certiorari denied 397 U.S. 910; United States v. Cullen, 454 F.2d 386 (7th Cir. 1971); and unorthodox medical treatments, United States v. Randall, 104 Daily Wash. L. Rep. 2249 (D.C. Super. Ct. 1976); United States v. Richardson, 588 F.2d 1235 (9th Cir. 1978).
In England, opinion as to the existence of a general defence of necessity has varied. Blackstone in his Commentaries on the Law (abridged edition of Wm. Hardcastle Browne, edited by Bernard C. Gavit, 1941) mentioned two principles capable of being read as underlying such a defence. In Book 4, chap. 2, at p. 761, he says: As punishments are only inflicted for the abuse of that free will, which God has given to man, it is just that a man should be excused for those acts, which are done through unavoidable force and compulsion.
Then under the rubric “Choice Between Two Evils” he writes:
Choice Between Two Evils. This species of necessity is the result of reason and reflection and obliges a man to do an act, which, without such obligation, would be criminal. This occurs, when a man has his choice of two evils set before him, and chooses the less pernicious one. He rejects the greater evil and chooses the less. As where a man is bound to arrest another for a capital offence, and being resisted, kills the offender, rather than permit him to escape.
Stephen, A History of the Criminal Law of England (1883), vol. II, p. 108, refers to compulsion by necessity as one of the curiosities of the law, “a subject on which the law of England is so vague that, if cases raising the question should ever occur the judges would practically be able to lay down any rule which they considered expedient”. At page 110 he concedes it just possible to imagine cases in which the expedience of breaking the law would be so overwhelmingly great that people might be justified in doing so but says that “these cases cannot be defined beforehand, and must be adjudicated upon by a jury afterwards”.
Later English commentators have had even more doubts on the matter. Halsbury’s Laws of England (4th ed. 1976), vol. 11, para. 26, has this to say on the subject:
26. Necessity. Although there are cases in which it is not criminal for a person to cause harm to the person or property of another, there is no general rule giving rise to a defence of necessity, and it seems that, outside the specific cases mentioned, it is no defence to a crime to show that its commission was necessary in order to avoid a greater evil to the defendant or to others.
While Glanville Williams (“The Defence of Necessity”, (1953) 6 C.L.P. 216) has been able to assert “with some assurance” that the defence of necessity is recognized by English law, the authors of Smith & Hogan, Criminal Law (4th ed. 1978) at pp. 193-94 state that “the better view appears to be that a general defence of necessity is not recognized by the English courts at the present time”.
A Working Party of the English Law Commission proposed to resolve this uncertainty by recognizing a general defence of necessity, but one that was carefully circumscribed to prevent its being invoked in extravagant and inappropriate cases. The English Law Commission, however, rejected the Working Party proposal and instead made two counterproposals (Law Com. No. 83, Part IV) which recognized the possibility of the existence of a defence of necessity at common law but clearly disapproved of its principles. The Commission proposed:
First, that no attempt should be made to establish the defence by legislation. Secondly, that the proposed Act should expressly abolish any such defence as may exist at common law.
In Canada the existence and the extent of a general defence of necessity was discussed by this Court in Morgentaler v. The Queen, [1976] 1 S.C.R. 616. As to whether or not the defence exists at all I had occasion to say at p. 678:
On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law. If it does exist, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.
Subsequent to Morgentaler, the courts appear to have assumed that a defence of necessity does exist in Canada. On the later trial of Dr. Morgentaler, the defence of necessity was again raised on a charge of procuring a miscarriage. Some admissible evidence was made in support of the plea and the case went to the jury, which rendered a verdict of not guilty. An appeal by the Crown from the acquittal failed: R. v. Morgentaler (1976), 33 C.R.N.S. 244. Leave to appeal to this Court was refused, [1976] 1 S.C.R. x. The defence also succeeded in four other cases: R. v. Guenther (1978), 8 Alta L.R. (2d) 125; R. v. Pootlass (1977), 1 C.R. (3d) 378; R. v. Fry (1977), 36 C.C.C. (2d) 396; R. v. Morris (1981), 61 C.C.C. (2d) 163. In a number of other cases the existence of such a defence was acknowledged but held to be unavailable on the facts. Some examples include: R. v. Gilkes (1978), 8 C.R. (3d) 159; R. v. Doud (1982), 18 M.V.R. 146; R. v. Byng (1977), 20 N.S.R. (2d) 125; R. v. Walker (1979), 48 C.C.C. (2d) 126 and R. v. Salvador (1981), 59 C.C.C. (2d) 521 (N.S.S.C. App. Div.), the case most nearly analogous to the one at bar, of which more anon.
In the present appeal the Crown does not challenge the appellants’ claim that necessity is a common law defence preserved by Criminal Code s. 7(3). Rather, the Crown claims the trial judge erred in (1) instructing the jury on the defence in light of the facts and (2) imposing the burden of disproof of the defence upon the Crown, rather than imposing the burden of proof on the appellants.
b) The Conceptual Foundation of the Defence
In Morgentaler, supra, I characterized necessity as an “ill-defined and elusive concept”. Despite the apparently growing consensus as to the existence of a defence of necessity that statement is equally true today.
This is no doubt in part because, though apparently laying down a single rule as to criminal liability, the “defence” of necessity in fact is capable of embracing two different and distinct notions. As Mr. Justice Macdonald observed succinctly but accurately in the Salvador case, supra, at p. 542:
Generally speaking, the defence of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good. Working Paper 29 of the Law Reform Commission of Canada at p. 93 makes this same point in somewhat more detail:
The rationale of necessity, however, is clear. Essentially it involves two factors. One is the avoidance of greater harm or the pursuit of some greater good, the other is the difficulty of compliance with law in emergencies. From these two factors emerge two different but related principles. The first is a utilitarian principle to the effect that, within certain limits, it is justifiable in an emergency to break the letter of the law if breaking the law will avoid a greater harm than obeying it. The second is a humanitarian principle to the effect that, again within limits, it is excusable in an emergency to break the law if compliance would impose an intolerable burden on the accused.
Despite any superficial similarities, these two principles are in fact quite distinct and many of the confusions and the difficulties in the cases (and, with respect, in academic discussions) arise from a failure to distinguish between them.
Criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime. The police officer who shoots the hostage-taker, the innocent object of an assault who uses force to defend himself against his assailant, the Good Samaritan who commandeers a car and breaks the speed laws to rush an accident victim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, as motivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on the doer.
In contrast, an “excuse” concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor. The perpetrator who is incapable, owing to a disease of the mind, of appreciating the nature and consequences of his acts, the person who labours under a mistake of fact, the drunkard, the sleepwalker: these are all actors of whose “criminal” actions we disapprove intensely, but whom, in appropriate circumstances, our law will not punish.
Herbert Packer, The Limits of the Criminal Sanction (1968), expresses the distinction thus at p. 113:
…conduct that we choose not to treat as criminal is “justifiable” if our reason for treating it as noncriminal is predominantly that it is conduct that we applaud, or at least do not actively seek to discourage: conduct is “excusable” if we deplore it but for some extrinsic reason conclude that it is not politic to punish it.
It will be seen that the two different approaches to the “defence” of necessity from Blackstone forward correspond, the one to a justification, the other to an excuse. As the examples cited above illustrate, the criminal law recognizes and our Criminal Code codifies a number of specific categories of justification and of excuse. The remainder, those instances that conform to the general principle but do not fall within any specific category such as self-defence on the one hand or insanity on the other, purportedly fall within the “residual defence” of necessity.
As a “justification” this residual defence can be related to Blackstone’s concept of a “choice of evils”. It would exculpate actors whose conduct could reasonably have been viewed as “necessary” in order to prevent a greater evil than that resulting from the violation of the law. As articulated, especially in some of the American cases, it involves a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it, and when the balance is clearly in favour of disobeying, exculpates an actor who contravenes a criminal statute. This is the “greater good” formulation of the necessity defence: in some circumstances, it is alleged, the values of society, indeed of the crimi- nal law itself, are better promoted by disobeying a given statute than by observing it.
With regard to this conceptualization of a residual defence of necessity, I retain the skepticism I expressed in Morgentaler, supra, at p. 678. It is still my opinion that, “[n]o 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”. The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrels and in the words of Edmund Davies L.J. in Southwark London Borough Council v. Williams, [1971] Ch. 734, it could “very easily become simply a mask for anarchy”.
Conceptualized as an “excuse”, however, the residual defence of necessity is, in my view, much less open to criticism. It rests on a realistic assessment of human weakness, recognizing 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. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics, supra, at p. 49, “overstrains human nature and which no one could withstand”.
George Fletcher, Rethinking Criminal Law (1978), decribes this view of necessity as “compulsion of circumstance” which description points to the conceptual link between necessity as an excuse and the familiar criminal law requirement that in order to engage criminal liability, the actions constituting the actus reus of an offence must be voluntary. Literally this voluntariness requirement simply refers to the need that the prohibited physical acts must have been under the conscious control of the actor. Without such control, there is, for purposes of the criminal law, no act. The excuse of necessity does not go to voluntariness in this sense. The lost alpinist who on the point of freezing to death breaks open an isolated mountain cabin is not literally behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a “voluntary” one. His “choice” to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. This sort of involuntariness is often described as “moral or normative involuntariness”. Its place in criminal theory is described by Fletcher at pp. 804-05 as follows:
The notion of voluntariness adds a valuable dimension to the theory of excuses. That conduct is involuntary—even in the normative sense—explains why it cannot fairly be punished. Indeed, H.L.A. Hart builds his theory of excuses on the principle that the distribution of punishment should be reserved for those who voluntarily break the law. Of the arguments he advances for this principle of justice, the most explicit is that it is preferable to live in a society where we have the maximum opportunity to choose whether we shall become the subject of criminal liability. In addition, Hart intimates that it is ideologically desirable for the government to treat its citizens as self-actuating, choosing agents. This principle of respect for individual autonomy is implicitly confirmed whenever those who lack an adequate choice are excused for their offenses. I agree with this formulation of the rationale for excuses in the criminal law. In my view this rationale extends beyond specific codified excuses and embraces the residual excuse known as the defence of necessity. At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.
Punishment of such acts, as Fletcher notes at p. 813, can be seen as purposeless as well as unjust:
…involuntary conduct cannot be deterred and therefore it is pointless and wasteful to punish involuntary actors. This theory …of pointless punishment, carries considerable weight in current Anglo-American legal thought.
Relating necessity to the principle that the law ought not to punish involuntary acts leads to a conceptualization of the defence that integrates it into the normal rules for criminal liability rather than constituting it as a sui generis exception and threatening to engulf large portions of the criminal law. Such a conceptualization accords with our traditional legal, moral and philosophic views as to what sorts of acts and what sorts of actors ought to be punished. In this formulation it is a defence which I do not hesitate to acknowledge and would not hesitate to apply to relevant facts capable of satisfying its necessary prerequisites.
c) Limitations on the Defence
If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale, as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively “involuntary”. The appropriate controls and limitations on the defence of necessity are, there- fore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought are truly “involuntary” in the requisite sense.
In Morgentaler, supra, I was of the view that any defence of necessity was restricted to instances of non-compliance “in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible”. In my opinion this restriction focuses directly on the “involuntariness” of the purportedly necessitous behaviour by providing a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice. If he was making a choice, then the wrongful act cannot have been involuntary in the relevant sense.
The requirement that the situation be urgent and the peril be imminent, tests whether it was indeed unavoidable for the actor to act at all. In LaFave & Scott, Criminal Law (1972), at p. 388, one reads:
It is sometimes said that the defense of necessity does not apply except in an emergency—when the threatened harm is immediate, the threatened disaster imminent. Perhaps this is but a way of saying that,