Canadian criminal law allows for a common law defence of necessity. Necessitas non habet legem; "Necessity knows no law." This well-known maxim reflects the theoretical basis of the defence of necessity: that in dire circumstances of looming peril, the claims of positive law seems to weaken.[1] This controversial common law or judge-made defence has only been firmly recognized in Canadian law since 1984.[1] It is recognized in Canada as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe avenue of escape or legal way out of the situation.[1]
There is an objective or reasonableness requirement that requires the accused to reasonably resist the pressures that led to the commission of the crime.[1] Anyone is entitled, by virtue of s.8(3) of the Criminal Code, to rely upon any excuse or defense available to him at common law.
The defence of necessity
The defence of necessity is an excuse for an illegal act, not a justification for committing the illegal act. The leading case for the defence is Perka v. The Queen [1984] 2 S.C.R. 232[1] in which Dickson J. described the rationale for the defence as a 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.[2]
However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where true "involuntariness" is found.
1. The accused must be in an urgent situation of imminent peril or danger.
The disaster must be imminent and it must be on the verge of transpiring and virtually certain to occur.
2. The accused must have had no reasonable legal alternative to breaking the law
If there is a reasonable legal alternative to breaking the law, then there is no necessity.
3. The harm inflicted by the accused must be proportional to the harm avoided by the accused
The harm inflicted by the accused must not be disproportionate to the harm the accused tried to avoid. The harm avoided must be either comparable to, or clearly greater than the harm inflicted.
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 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.
The first two elements must be proven according to the modified objective standard, which takes into account the situation and characteristics of the particular accused person (see R. v. Latimer (2001) at §§ 32–34). The third requirement for the defence of necessity, proportionality, must be measured on an objective standard. The objective standard being what a reasonable person would do in the circumstances. The two harms, at minimum, must be of a comparable gravity. When evaluating the gravity of the act, a matter of community standards infused with constitutional considerations of the accused and the victim are considered.
In R. v. Latimer (2001), the Supreme Court of Canada affirmed that to charge a jury with respect to the defence of necessity there must be an air of reality for all three aspects of necessity. The court further affirmed that the defence of necessity is not available to a defendant when (1) the killing occurred when there was no imminent danger to either the defendant or the victim, (2) reasonable legal alternatives are available besides killing, and (3) the harm inflicted is not in proportion to the harm avoided.
Perka v The Queen (1984) provides a summary on the nature, basis and limitations on the defence of necessity: (1) the defence of necessity could be conceptualized as either a justification or an excuse; (2) it should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code; (3) necessity as an excuse implies no vindication of the deeds of the actor; (4) the criterion is the moral involuntariness of the wrongful action; (5) this involvement is measured on the basis of society's expectation of appropriate and normal resistance to pressure; (6) negligence or involvement in criminal or immoral activity does 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) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law; (9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; (10) where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.
More recently, in R v Kerr, 2004 SCC 44, [2004] 2 SCR 371 the defence of necessity was made out and the accused acquitted, where an inmate stabbed to death a fellow inmate after being threatened with his life. The Supreme Court of Canada restore the acquittal from trial on the basis that the accused "had a reasonable belief that the circumstances afforded him no legal way out" and the lethal attack he sought to avoid outweighed his breach of s. 88(1) (at para 96). Justice Binnie dissented in this case as he disagreed with applying necessity as he decided the accused had a double intention of carrying the knife (at para 85) as a defence tool and as a more general and regular purpose of carrying a knife.
In R. v Bridges (1989), 48 C.C.C. (3d) 535, 61 D.L.R. (4th) 12 (B.C.S.C), the defence of necessity was not made out to an accused charged with contempt of court for a violation of a court order against interfering with an abortion clinic. The defence is available when wrongful acts are committed under pressure in which no reasonable person could withstand. In these circumstances, reasonable person could withstand the pressure to defy the court order and thus, the accused's honest belief that abortion was immoral does not change this fact. This decision was upheld at the British Columbia Court of Appeal R. v Bridges (1990), 62 C.C.C. (3d) 455, 78 D.L.R. (4th) 529 (B.C.C.A)
In R v Shewchuk (2014) SKPC 164, The defence of necessity was not made out to an accused charged with impaired driving. The defendant had become intoxicated while ice fishing in a rural area and was unable to reach help. The defendant drove to a hill parking on the centre of the road hoping he would be found by a passerby but was discovered by officers. The court ruled that the defence of necessity would not hold. Thought the threat of hypothermia was sufficient for the first aspect of necessity and that hypothermia was imminent enough for the second aspect to apply. However the requirement that the harm inflicted is not disproportional to the harm avoided. The threat the defendant posed by parking in the centre of a road at night unaware and without lights was found to outweigh the harm avoided.
Classification of defence as excuse or justification
In Perka v. The Queen, the Court explores the history of the necessity defence in order to determine whether it is an excuse or a justification. The legal underpinnings of each are distinct. The majority concludes that it should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code: the defence of necessity excuses the accused of blame rather than acts as a justification of their actions. In a concurring opinion, Wilson J. leaves open the door to future case law finding that in some cases the defence can act as justification suggesting that:
It may generally be said that an act is justified on grounds of necessity if the court can say that not only was the act a necessary one but it was rightful rather than wrongful.
Judicial antecedents
The Supreme Court previously discussed the defence of necessity in Morgentaler v. The Queen [1976] 1 S.C.R. 616 where they left open the possibility of its existence but did not conclude either way on the question. The Court of Appeal of Ontario again considered the defence of necessity in R v. Morgantaler, Smoling, and Scott but in this case they concluded that the defence of necessity should not have been brought before the jury. It was not until 1984 in the case of Perka v. The Queen that the Supreme Court acknowledged the defense of necessity in Canada.
Necessity and abortion
In Morgentaler v. The Queen [1976] 1 S.C.R. 616 the SCC decided that the defense of necessity was not available on these facts. They based this decision on the lack of urgent and real medical need. Only in situations when compliance with the law was demonstrably impossible should necessity be available.
Related Research Articles
In the criminal law of many nations, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. As a matter of political expediency, states usually allow some classes of person to be excused from liability when they are engaged in socially useful functions but intentionally cause injury, loss or damage.
In American jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case. Exculpation is a related concept which reduces or extinguishes a person's culpability, such as a their liability to pay compensation to the victim of a tort in the civil law.
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]". Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law. In criminal law, duress and necessity are different defenses.
In law, provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self control. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice. It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness."
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, entrapment and the statute of limitations.
In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.
In criminal law, automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability (unconsciousness) or excuse. Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act.
Voluntary manslaughter is the killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions. Voluntary manslaughter is one of two main types of manslaughter, the other being involuntary manslaughter.
R. v. Perka, [1984] 2 S.C.R. 232 is, along with R v Latimer, a leading Supreme Court of Canada decision on the criminal defence of necessity.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
In English law, the defence of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person and that the accused was in genuine risk of immediate harm or danger.
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.
The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides:
§ 35.05 Justification; generally.
Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land.
Criminal law is a system of laws that is connected with crimes and punishments of an individual who commits crimes. In comparison, civil law is where the case argues their issues with one entity to another entity with support of the law. Crimes can vary in definition by jurisdiction but the basis for a crime are fairly consistent regardless.
The South African law of delict engages primarily with 'the circumstances in which one person can claim compensation from another for harm that has been suffered'. JC Van der Walt and Rob Midgley define a delict 'in general terms [...] as a civil wrong', and more narrowly as 'wrongful and blameworthy conduct which causes harm to a person'. Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.
South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
Peterson v Minister of Safety and Security is an important case in South African criminal law. For the appellant appeared J Whitehead SC, instructed by JL Martinson & Company, Cape Town; for the respondents, A Schippers SC and S O'Brien, instructed by the State Attorney, Cape Town.
References
1 2 3 4 5 Kent Roach et al, Criminal Law and Procedure (Toronto: Emond, 2015) at 961.
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