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Perka v The Queen, [1984] 2 SCR 232

Facts:

P drug smuggler. P was delivering drugs to Alaska on boat. Waters rough had to stop on shores of Canada. Had to unload drugs. Charged with trafficking. Defence was they were not planning to bring drugs into Canada

Issue(s):

Can P claim the defence of necessity?

Ratio:

Defence of Necessity - 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

Analysis:

If the accused’s fault consists of actions whose clear consequence were in the situations that actually ensued, then he was not really confronted with an emergency which compelled him to commit the unlawful act he now seeks to have excused – defence unavailable.

Sum of Defence of Necessity
*1. The defence could be conceptualized as either a justification or an excuse
*2. It should be recognized in Canada as an excuse
*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 involuntariness is measures on the basis of society’s expectation of appropriate and normal resistance to pressure
*6. Negligence or involvement in a 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 the defence
*8. The existence of a reasonable legal alternative similar disentitles
**a.To be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of actions 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

There is a distinction between justifications and excuses (imp) – 2 kinds of offences
**A justification challenges the wrongfulness of an action which technically constitutes a crime
***Defence of necessity cannot be a justification
**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 (ex. sleepwalker, drunker)
***When looking at it as an excuse the defence is less open to criticism.

It is better to focus on involuntary – if the necessitous situation was clearly foreseeable to a reasonable observer, then it is doubtful that what confronted the man was actually an emergency.

Holding:

Defence of necessity was available


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