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

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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-

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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.

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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, [1975] 8 (SCC), [1976] 1 S.C.R. 616; R. v. Salvador (1981), [1981] 3357 (NS CA), 59 C.C.C. (2d) 521; R. v. Gilkes (1978), [1978] 3897 (ON CJ), 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), [1979] 2944 (ON SC), 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), [1976] 1255 (QC CA), 33 C.R.N.S. 244; R. v. Guenther (1978), [1978] 733 (AB SCTD), 8 Alta. L.R. (2d) 125; R. v. Pootlass (1977), [1977] 3359 (BC PC), 1 C.R. (3d) 378; R. v. Fry (1977), [1977] 1955 (SK MagCt), 36 C.C.C. (2d) 396; R. v. Morris (1981), [1981] 1216 (AB QB), 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, [1975] 173 (SCC), [1976] 2 S.C.R. 651; The SS. “Tordenskjold” v. The SS. “Euphemia” (1908), [1908] 38 (SCC), 41 S.C.R. 154; Dormuth v. Untereiner, [1963] 95 (SCC), [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, [1929] 438 (UK JCPC), [1930] A.C. 124; Attorney-General for Ontario v. Attorney-General for Canada, [1947] 301 (UK JCPC), [1947] A.C. 127; R. v. Herbert, Coombs and Spanks (1975), [1975] 1314 (BC SC), 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);

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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), [1982] 472 (BC CA), 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

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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

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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

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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”.

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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, [1963] 95 (SCC), [1964] S.C.R. 122; The SS. “Tordenskjold” v. The SS. “Euphemia” (1908), [1908] 38 (SCC), 41 S.C.R. 154; Dairy Foods, Inc. v. Co-opérative Agricole de Granby, [1975] 173 (SCC), [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.

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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:

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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:

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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

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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, [1975] 8 (SCC), [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), [1976] 1255 (QC CA), 33 C.R.N.S. 244. Leave to appeal to this Court was

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refused, [1976] 1 S.C.R. x. The defence also succeeded in four other cases: R. v. Guenther (1978), [1978] 733 (AB SCTD), 8 Alta L.R. (2d) 125; R. v. Pootlass (1977), [1977] 3359 (BC PC), 1 C.R. (3d) 378; R. v. Fry (1977), [1977] 1955 (SK MagCt), 36 C.C.C. (2d) 396; R. v. Morris (1981), [1981] 1216 (AB QB), 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), [1978] 3897 (ON CJ), 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), [1979] 2944 (ON SC), 48 C.C.C. (2d) 126 and R. v. Salvador (1981), [1981] 3357 (NS CA), 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.

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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

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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-

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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

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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.

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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-

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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, until the time comes when the threatened harm is immediate, there are generally options open to the defendant to avoid the harm, other than the option of disobeying the literal terms of the law—the rescue ship may appear, the storm may pass; and so the defendant must wait until that hope of survival disappears.

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.

The requirement that compliance with the law be “demonstrably impossible” takes this assessment one step further. Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way

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Out? I think this is what Bracton means when he lists “necessity” as a defence, providing the wrongful act was not “avoidable”. The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of “necessity” and human instincts.

The importance of this requirement that there be no reasonable legal alternative cannot be overstressed.

Even if the requirements for urgency and “no legal way out” are met, there is clearly a further consideration. There must be some way of assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him. According to Fletcher, this requirement is also related to the notion of voluntariness (at p. 804):

…if the gap between the harm done and the benefit accrued becomes too great, the act is more likely to appear voluntary and therefore inexcusable. For example, if the actor has to blow up a whole city in order to avoid the breaking of his finger, we might appropriately expect him to endure the harm to himself. His surrendering to the threat in this case violates our expectations of appropriate and normal resistance and pressure. Yet as we lower the degree of harm to others and increase the threatened harm to the person under duress we will reach a threshold at which, in the language of the Model Penal Code, “a person of reasonable firmness” would be “unable to resist”. Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.

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I would therefore add to the preceding requirements a stipulation of proportionality expressable, as it was in Morgentaler, by the proviso that the harm inflicted must be less than the harm sought to be avoided.

d) Illegality or Contributory Fault

The Crown submits that there is an additional limitation on the availability of the defence of necessity. Citing R. v. Salvador, supra, it argues that because the appellants were committing a crime when their necessitous circumstances arose, they should be denied the defence of necessity as a matter of law.

In Salvador, Jones J.A. thought it highly relevant that the accused were engaged in an illegal venture when they were forced ashore. He would have denied the necessity defence in such circumstances. At page 528, he said:

Should the appellants who embarked on an illegal venture be now heard to plead necessity when it was the venture which eventually gave rise to that necessity? One who undertakes an ocean voyage in a 56-foot yacht loaded to the gunnels with narcotics could scarcely be surprised at getting into difficulties at sea or eventually running afoul of the law. To put things in perspective, this was a voyage by a band of conspirators with a cargo of contraband having every intention of violating the law of nations from the outset. It is clear from their evidence that they were employed for that purpose. I fail to see how any self-respecting nation, as a signatory to the Convention on Narcotic Drugs, could countenance the defence of necessity or distress in such circumstances.

Macdonald J.A. (Cooper and Hart JJ.A. concurring) said, in agreement, after holding that the necessity defence was not available because compliance with the law was not demonstrably impossible (at p. 545):

Finally I have grave reservations whether the defence of necessity has any application to the circumstances of this case. I entertain such reservation primarily because the appellants were actively engaged in the commission of a joint criminal venture when the circumstances arose

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that they contend gave rise to, or supported, the defence of necessity.

Were it indeed accurate that the fact of doing something illegal when the necessitous circumstances arise will deny one the benefit of the necessity defence, I would nevertheless doubt that this principle would be relevant to the present case. The accused here (as incidentally was also apparently the case in Salvador) were not doing anything illegal under Canadian law when the necessity arose. They were on the high seas. They were conspiring to import marihuana into the United States, not Canada. If such a limitation on the necessity defence were to be formulated, in my view, the accused should, at a minimum, be violating some law of the forum, not just the law of a foreign state.

In any event, I have considerable doubt as to the cogency of such a limitation. If the conduct in which an accused was engaging at the time the peril arose was illegal, then it should clearly be punished, but I fail to see the relevance of its illegal character to the question of whether the accused’s subsequent conduct in dealing with this emergent peril ought to be excused on the basis of necessity. At most the illegality—or if one adopts Jones J.A.’s approach, the immorality—of the preceding conduct will colour the subsequent conduct in response to the emergency as also wrongful. But that wrongfulness is never in any doubt. Necessity goes to excuse conduct, not to justify it. Where it is found to apply it carries with it no implicit vindication of the deed to which it attaches. That cannot be over-emphasized. Were the defence of necessity to succeed in the present case, it would not in any way amount to a vindication of importing controlled substances nor to a critique of the law prohibiting such importation. It would also have nothing to say about the comparative social utility of breaking the law against importing as compared to obeying the law. The question, as I have said, is never whether what the accused has done is wrongful. It is always and by definition, wrongful. The question is whether what he has done is voluntary. Except in the limited

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sense I intend to discuss below, I do not see the relevance of the legality or even the morality of what the accused was doing at the time the emergency arose to this question of the voluntariness of the subsequent conduct.

In Salvador, Jones J.A. cited sources in support of his view that illegal conduct should act as a bar to the necessity defence. These sources do not support that view but do support a closely related notion—that if the accused’s own “fault” (including negligence or recklessness) is responsible for the events giving rise to the necessity, he may not rely on the necessity defence.

This limitation has found expression in several American state statutes codifying the necessity defence, such as those of New York and Illinois and has been adopted by the United States National Commission on Reform of Federal Criminal Laws which recommended that the defence apply only “where the situation developed through no fault of the actor”. A parallel is sometimes drawn between such a limitation and the restrictions placed on the availability of the largely analogous defence of duress. See, e.g., A.J. Ashworth, “Reason, Logic and Criminal Liability”, (1975) 91 L.Q.R. 102 at p. 106.

In my view the accused’s fault in bringing about the situation later invoked to excuse his conduct can be relevant to the availability of the defence of necessity, but not in the sweeping way suggested by some of the commentators and in some of the statutory formulations. Insofar as the accused’s “fault” reflects on the moral quality of the action taken to meet the emergency, it is irrelevant to the issue of the availability of the defence on the same basis as the illegality or immorality of the actions preceding the emergency are irrelevant. If this fault is capable of attracting criminal or civil liability in its own right, the culprit should be

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appropriately sanctioned. I see no basis, however, for “transferring” such liability to the actions taken in response to the emergency, especially where to do so would result in attaching criminal consequences on the basis of negligence to actions which would otherwise be excused.

In my view the better approach to the relationship of fault to the availability of necessity as a defence is based once again on the question of whether the actions sought to be excused were truly “involuntary”. If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency. His response was in that sense not “involuntary”. “Contributory fault” of this nature, but only of this nature, is a relevant consideration to the availability of the defence.

It is on this point that the analogy to duress is especially enlightening. Section 17 of the Criminal Code provides:

17. A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is excused for committing the offence if he believes that the threats will be carried out and if he is not a party to a conspiracy or association whereby he is subject to compulsion…

(Emphasis added.)

The rationale for the proviso making the defence unavailable to a member of a criminal conspiracy or association, is the same as that articulated with regard to the common law defence of duress by Lord Morris of Borth-y-Gest in Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653 at p. 670:

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In posing the case where someone is ‘really’ threatened I use the word ‘really’ in order to emphasise that duress must never be allowed to be the easy answer of those… who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant.

If section 17 and the comments of Lord Morris of Borth-y-Gest embody a notion of “contributory fault” it is not per se on account of the accused’s participation in criminal or immoral activity at the time he became subject to threats, nor on account of any simple negligence on his part, but rather on account of the clear foreseeability of his becoming subject to such threats and domination and the consequent conclusion that he was not “really” threatened.

In my view the same test is applicable to necessity. If the accused’s “fault” consists of actions whose clear consequences were in the situation 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. In such situations the defence is unavailable. Mere negligence, however, or the simple fact that he was engaged in illegal or immoral conduct when the emergency arose will not disentitle an individual to rely on the defence of necessity.

e) Onus of Proof

Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown

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must be prepared to meet that issue. There is no onus of proof on the accused.

The Crown argues, however, that s. 7(2) of the Narcotic Control Act shifts the burden of persuasion to the accused.

Section 7(2) provides:

7.(1) …

(2) In any prosecution under this Act the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.

The Crown contends that the defence of necessity is an “exception, exemption, excuse or qualification prescribed by law”. I find no merit in this contention.

The Narcotic Control Act provides for several statutory exceptions to its broad prohibitions against importation, sale, manufacture, and possession. The offences created by the Act are generally subject to the proviso that the accused not have been acting under the authority of the Act or the regulations thereunder. See sections 3(1) (possession), 5(1) (importation), 6(1) (cultivation). Section 12 of the Act implements this scheme by providing for a set of regulations governing the issuance of licences for, inter alia, the importation, sale, manufacture, or possession of narcotics. One who sells, imports, manufactures or possesses narcotics pursuant to such authority does not commit an offence.

It seems clear that it is to these statutory exceptions that s. 7(2) refers, and not to common law defences such as necessity. One who wishes to plead the possession of a licence or other lawful authority in response to a charge of importation bears, under s. 7(2), the burden of persuading the trier of fact that such licence exists. One who pleads necessity bears no such burden. Section

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7(2) does not place a persuasive burden as to the defence of necessity on the accused.

f) Preliminary Conclusions as to the Defence of Necessity

It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations: (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 involuntariness 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.

g) The Judge’s Charge

The trial judge concluded that there was before him an adequate body of evidence to raise the issue of necessity and proceeded to direct the jury with respect to the defence. As I have earlier indicated, the Crown disputes whether the defence was open to the accused in the circumstances of

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the case and submits further that if it was in fact available, the trial judge erred in his direction.

In my view the trial judge was correct in concluding that on the evidence before him he should instruct the jury with regard to necessity. There was evidence before him from which a jury might conclude that the accused’s actions in coming ashore with their cargo of cannabis were aimed at self-preservation in response to an overwhelming emergency. I have already indicated that in my view they were not engaged in conduct that was illegal under Canadian criminal law at the time the emergency arose, and that even if they were, that fact alone would not disentitle them to raise the defence. The question then becomes whether the trial judge erred in charging the jury in the terms that he did.

The summary of conclusions with regard to necessity in the foregoing section indicates that for the defence to succeed, an accused’s actions must be, in the relevant sense, an “involuntary” response to an imminent and overwhelming peril. The defence cannot succeed if the response was disproportional to the peril or if it was not “involuntary” in the sense that the emergency was not “real” or not imminent or that there was a reasonable alternative response that was not illegal.

In the course of his charge on the issue of necessity the trial judge instructed the jury, using the specific words that appear in Morgentaler, to the effect that they must find facts which amount to an “urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible” in order for the appellants’ non-compliance with the law against importation and possession of cannabis to be excused. That is the correct test. It is, with respect, however, my view that in explaining the meaning and application of this test, the trial judge fell into error.

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The trial judge was obliged, in my opinion, to direct the jury’s attention to a number of issues pertinent to the test for necessity. Was the emergency a real one? Did it constitute an immediate threat of the harm purportedly feared? Was the response proportionate? In comparing this response to the danger that motivated it, was the danger one that society would reasonably expect the average person to withstand? Was there any reasonable legal alternative to the illegal response open to the accused? Although the trial judge did not explicitly pose each and every one of these questions in my view his charge was adequate to bring the considerations underlying them to the jury’s attention on every issue except the last one, the question of a reasonable alternative.

This issue was the determining obstacle to the success of the defence of necessity in a number of the cases referred to earlier, including Gilkes, Doud, Byng and for the present case most notably, because of the similarity of its factual basis, Salvador. Indeed in most cases where the defence is raised this consideration will almost certainly be the most important one.

In his charge, the trial judge did not advert to this requirement. He did tell the jury that they must find facts capable of showing that “compliance with the law [was] demonstrably impossible…” but on his recharge he put before the jury a significantly different test. The test, he said, is:

…can you find facts from this evidence, and that means all the evidence, of course, that the situation of the Samarkanda at sea was so appallingly dire and dangerous to life that a reasonable doubt arises as to whether or not their decision was justified?

And again, at the conclusion of the recharge:

There is no need for the evidence to show you that a certainty of death would result unless the action complained of by the Crown was taken. It doesn’t go so far as that. You have to look at it as reasonable people and

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decide on any reasonable view of the matter, would these people have been justified in doing what they did? That is all that necessity means.

Both of these passages imply that the crucial consideration was whether the accused acted reasonably in coming into shore with their load of cannabis rather than facing death at sea. That is not sufficient as a test. Even if it does deal with the reality of the peril, its imminence and the proportionality of putting into shore, it does not deal at all with the question of whether there existed any other reasonable responses to the peril that were not illegal. Indeed, aside from the initial repetition of the Morgentaler formula, the trial judge did not advert to this consideration at all, nor did he direct the jury’s attention to the relevance of evidence indicating the possibility of such alternative courses of action. In these respects I believe he erred in law. He did not properly put the question of a “legal way out” before the jury.

In my view this was a serious error and omission going to the heart of the defence of necessity. The error justifies a new trial.

III The Botanical Defence

The Narcotic Control Act, s. 2, defines cannabis (marihuana) as “Cannabis sativa L.” At trial, the appellants presented expert testimony to the effect that there are three species of cannabis—Cannabis sativa L., Cannabis indica Lam., and Cannabis ruderalis Jan. The Crown countered with expert testimony that there is only one species of cannabis—the prohibited Cannabis sativa L.

The divergence in views among botanists is of recent origin. Before 1970, there were isolated references in the literature to Cannabis indica (Lamarck 1785) and Cannabis ruderalis (Janis‑chevsky 1924) but the prevailing botanical view

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was that marihuana was monotypic and consisted only of Cannabis sativa L.

It was proven at trial that the Samarkanda’s cargo was marihuana but it was not proven that it was Cannabis sativa L., as opposed to Cannabis indica Lam. or Cannabis ruderalis Jan. The laboratory tests performed by the Crown were not designed to distinguish among the three purported species, the Crown’s experts being of the view that all marihuana was Cannabis sativa L. Counsel for the accused asked the trial judge to put the question whether marihuana was monotypic or polytypic to the jury, with an instruction that if they found there were three species of cannabis and the Crown had not proven that the cannabis in the possession of the appellants was the prohibited species, they should find the appellants not guilty.

The trial judge agreed with the accused that the taxonomic question was one of fact but ruled that its resolution was unnecessary because Parliament, when it used the term Cannabis sativa L. in the Narcotic Control Act, meant to embrace all marihuana. In his view, since all marihuana was prohibited by the Act, it was irrelevant whether the plant was botanically polytypic or monotypic. He declined to put the accused’s “botanical defence” to the jury.

The appellants contend that the trial judge erred in ruling as a matter of law that the term “Cannabis sativa L.” in the Narcotic Control Act embraces all marihuana. They rely principally on the rule of statutory construction that technical terms in statutes should be given their technical meaning.

It is clear that the Latin phrase “Cannabis sativa L.” is a technical term. Botanical nomenclature is governed by an internationally accepted set of regulations which provide that Latin is the official language of botany. Pursuant to the Code of Botanical Nomenclature, plant species are assigned a Latin binomial with the name of the

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author (the taxonomist who first identifies and names the species) appended in abbreviated form. The first word in the binomial identifies the genus, or “family” to which the plant in question belongs; the second word identifies the species. “Cannabis saliva L.” in this naming system designates the species saliva of the genus cannabis. The “L.” stands for Linnaeus, the botanist who discovered the plant in 1753.

It is well established that technical and scientific terms which appear in statutes should be given their technical or scientific meaning: see Maxwell on the Interpretation of Statutes (12th ed. 1969) at p. 28. The question presented in the case at bar, however, is not whether the term “Cannabis sativa L.” should be assigned its scientific or technical meaning. The parties agree that it should. The real dispute, as I see it, is as to when, in temporal terms, that meaning should be fixed. The appellants argue, in effect, for the meaning which the scientific community would today give to the phrase. They submit that a jury could reasonably find from the expert evidence presented that the scientific community is now of the view that there are three species of the genus cannabis, of which Cannabis sativa L. is only one. The Crown, on the other hand, argues that the meaning to be given to the phrase “Cannabis sativa L.” is the meaning which the botanical community ascribed to it when the Narcotic Control Act became law in 1961. In 1961, botanists were virtually unanimous in holding that cannabis marihuana consisted of only 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. The appellants, as I have said, ask that we give the phrase in question the meaning which their experts say it bears at present among members of the botanical community; the Crown asks us to freeze its meaning at the time of enactment.

The doctrine of contemporanea expositio is well established in our law. “The words of a statute

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must be construed as they would have been the day after the statute was passed…” Sharpe v. Wakefield (1888), 22 Q.B.D. 239, at p. 242 (per Lord Esher, M.R.). See also Driedger, Construction of Statutes (2nd ed. 1983) at p. 163: “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held”; Maxwell on the Interpretation of Statutes, supra, at p. 85: “The words of an Act will generally be understood in the sense which they bore when it was passed”.

This does not mean, of course, that all terms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute was enacted. In Gambart v. Ball (1863), 32 L.J.C.P. 166, for example, it was held that the Engraving Copyright Act of 1735, which prohibited unauthorized engraving or “in any other manner” copying prints and engravings, applied to photographic reproduction—a process invented more than one hundred years after the Act was passed. (See also Maxwell, supra, at pp. 102 and 243-44.) This kind of interpretive approach is most likely to be taken, however, with legislative language that is broad or “open-textured”. It is appropriate, as the judgments of Viscount Sankey in Edwards v. Attorney-General for Canada, [1929] 438 (UK JCPC), [1930] A.C. 124, and Viscount Jowitt in Attorney-General for Ontario v. Attorney-General for Canada (the Privy Council Appeals Reference), [1947] 301 (UK JCPC), [1947] A.C. 127, indicate, to the interpretation of the words in constitutional documents, whose meaning must be capable of growth and development to meet changing circumstances. But where, as here, 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 shifted. It is clear that Parliament intended in 1961, by the phrase “Cannabis sativa

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L.”, to prohibit all cannabis. The fact that some, possibly a majority, of botanists would now give that phrase a less expansive reading in the light of studies not undertaken until the early 1970’s, does not alter that intention. The interpretation given to the Narcotic Control Act by the trial judge was consistent with Parliament’s apparent intent in enacting the legislation, and was, in my opinion, correct.

There is no question in my mind that the appellants were given “fair warning” by the Narcotic Control Act that their conduct was illegal. It is common knowledge in our society that marihuana is an illegal drug. It is not common knowledge that some botanists have recently concluded that there are three separate species of the mother plant, based on morphological considerations. Against this background, it seems highly unlikely that the citizen seeking guidance from his country’s laws as to what he may or may not do, would see in the language “Cannabis sativa L.” a basis for the three species botanical argument relied upon by the appellants in the case at bar. It would simply be unreasonable to assume that by using the phrase “Cannabis sativa L.” Parliament meant to prohibit only some intoxicating marihuana and exempt the rest. Such an interpretation would be at odds with the general scheme of the Narcotic Control Act as well as the common understanding of society at large. Under the circumstances, it seems clear that the statute gives ample warning as written. Fairness does not demand that it be more narrowly construed.

This has been the approach taken by the two Canadian courts who have considered the botanical defence, and both have rejected it. See R. v. Herbert, Coombs and Spanks (1975), [1975] 1314 (BC SC), 28 C.C.C. (2d) 423, at p. 439; R. v. Deslaurier, Paskell and Pinney, Ont. Co. Ct. (District of York), July 1974, Steen J. The American cases are in accord. See,

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for example, People v. Hamilton, 105 Cal. App. 3d 113 (1980); United States v. Lupo, 652 F.2d 723 (7th Cir. 1981); United States v. Kelly, 527 F.2d 961 (9th Cir. 1976); United States v. Gavic, 520 F.2d 1346 (8th Cir. 1975); United States v. Spann, 515 F.2d 579 (10th Cir. 1975); United States v. Walton, 514 F.2d 201 (D.C. Cir. 1975); United States v. Honneus, 508 F.2d 566 (1st Cir. 1974); United States v. Kinsey, 505 F.2d 1354 (2nd Cir. 1974); United States v. Sifuentes, 504 F.2d 845 (4th Cir. 1974); United States v. Gaines, 489 F.2d 690 (5th Cir. 1974); United States v. Moore, 446 F.2d 448 (3rd Cir. 1971).

The trial judge was correct in withdrawing the appellants’ botanical defence from the jury.

IV Rebuttal Evidence

The British Columbia Court of Appeal concluded that the trial judge erred in law in denying the Crown the right of rebuttal and based its order for a new trial on this finding. I have already concluded that there must be a new trial owing to the error of law in the trial judge’s charge with respect to necessity. At this new trial the issue of whether in the circumstances of the first trial the Crown was entitled in law to present the rebuttal evidence it sought to adduce will no longer be relevant and will have no effect on the outcome of the case. I do not, accordingly, find it necessary to decide whether the trial judge erred in law in exercising his discretion to refuse to allow the rebuttal.

V Conclusion

On the basis of all the above, it is my conclusion that the Court of Appeal was correct in the result in ordering a new trial and was correct in sustaining the trial judge’s decision to withhold the

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botanical defence from the jury.

I would dismiss the appeals.

The following are the reasons delivered by

WILSON J.—The factual background of this case, the history of the litigation in the courts below and the grounds on which the appeal was taken in this Court are very fully set out in the reasons for judgment of Mr. Justice Dickson (as he was at the date of the hearing) and it is not necessary for me to repeat them. Indeed, inasmuch as Dickson J.’s conclusion as to the defence of necessity seems clearly correct on the facts of this case and his disposition of the appeal manifestly just in the circumstances, I am dealing in these reasons only with the proposition very forcefully advanced by Dickson J. in his reasons that the appropriate jurisprudential basis on which to premise the defence of necessity is exclusively that of excuse. My concern is that the learned Justice appears to be closing the door on justification as an appropriate jurisprudential basis in some cases and I am firmly of the view that this is a door which should be left open by the Court.

As Dickson J. points out, criminal law theory recognizes a distinction between justification and excuse. In the case of justification the wrongfulness of the alleged offensive act is challenged; in the case of excuse the wrongfulness is acknowledged but a ground for the exercise of judicial compassion for the actor is asserted. By way of illustration, an act may be said to be justified when an essential element of the offence is absent, so that the defence effectively converts the accused’s act from wrongful to rightful. Accordingly, those defences which serve to establish a lack of culpable intent on the part of the accused, or which demonstrate that, although the accused intended to commit the act, the act was one which the accused was within his rights to commit, may be labeled justification in so far as they elucidate the innocent nature of the act giving rise to the charge. Such doctrines as mistake of fact, automatism, etc. which, in the words of Lord Hailsham in Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347 (H.L.), are raised in order to “negative” mens rea, may be appropriately placed

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in this category as they are invoked in order to undermine the very ingredient of culpability. Similarly, the accused who claims to have acted out of self-defence or provocation in utilizing aggressive force against another individual raises a justificatory defence in that he asserts the essential rightfulness of his aggressive act.

On the other hand, an excuse requires the court to evaluate the presence or absence of the accused’s will. In contemporary jurisprudence the most forceful champion of excuse in criminal law has been Professor George Fletcher who has advocated a trend toward individualizing the conceptual basis for culpability so that all circumstances subjectively relevant to the accused be considered by the court. As such, the jury is requested to exercise compassion for the accused’s predicament in its evaluation of his claim: “I couldn’t help myself” (Fletcher, “The Individualization of Excusing Conditions”, (1974) 47 S. Cal. L. Rev. 1269). This type of analysis is reflected in the dissent of Seiler J. of the Supreme Court of Missouri in State v. Green, 470 S.W. 2d 565 (1971), in which the accused’s prison escape was seen as excusable due to the intolerability of his confinement with aggressive homosexual inmates by whom he had been repeatedly victimized. The basis of the defence could not have been that of justification based on an objective balance of evils since numerous U.S. courts had already established that the evil of prison escape outweighed the evil of intolerable prison conditions (see, e.g., People v. Whipple, 279 P. 1008 (Cal. App. 1929); People v. Noble, 170 N.W. 2d 916 (Mich. App. 1969)). Rather, the issue for Seiler J. was the blamelessness of an accused in committing an act which, although admittedly wrong, was one for which any juror might have compassion. Thus, the nature of an excuse is to personalize the plea so that, while justification looks to the Tightness of the act, excuse speaks to the compassion of the court for the actor.

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As Dickson J. points out, although the necessity defence has engendered a significant amount of judicial and scholarly debate, it remains a somewhat elusive concept. It is, however, clear that justification and excuse are conceptually quite distinct and that any elucidation of a principled basis for the defence of necessity must be grounded in one or the other.

Turning first to the category of excuse, the concept of “normative involuntariness” stressed in the reasons of Dickson J. may, on one reading, be said to fit squarely within the framework of an individualized plea which Professor Fletcher indicates characterizes all claims of excusability. The notional involuntariness of the action is assessed in the context of the accused’s particular situation. The court must ask not only whether the offensive act accompanied by the requisite culpable mental state (i.e. intention, recklessness, etc.) has been established by the prosecution, but whether or not the accused acted so as to attract society’s moral outrage. In some U.S. jurisdictions this type of evaluation has been utilized to excuse from criminal liability individuals who commit intentional offensive acts but who operate under mental or sociological impairments with which one can sympathize (see State v. St. Clair, 262 S.W. 2d 25 (Mo. S.C. 1953)), or to form the theoretical basis for a defence where the accused confronted a desperate situation for which society might well be expected to express its compassion (see United States v. Holmes, 26 Fed. Cas. 360 (E.D. Pa. 1842)). In evaluating a claim of “normative involuntariness” we seem to be told that the individual’s criminally wrongful act was nevertheless blameless in the circumstances.

The position in English law, by contrast, was most accurately stated in the well-known case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, in which Lord Coleridge warned against allowing “compassion for the criminal to change or weaken in any manner the legal definition of the crime” (p. 288). The underlying principle here is the

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universality of rights, that all individuals whose actions are subjected to legal evaluation must be considered equal in standing. Indeed, it may be said that this concept of equal assessment of every actor, regardless of his particular motives or the particular pressures operating upon his will, is so fundamental to the criminal law as rarely to receive explicit articulation. However, the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one’s own will and in the universal right to be free from the imposition of the impulses and will of others (see Hegel, Philosophy of Right (trans. Knox, 1952), at pp. 226-27) supports the view that an individualized assessment of offensive conduct is simply not possible. If the obligation to refrain from criminal behaviour is perceived as a reflection of the fundamental duty to be rationally cognizant of the equal freedom of all individuals, then the focus of an analysis of culpability must be on the act itself (including its physical and mental elements) and not on the actor. The universality of such obligations precludes the relevance of what Fletcher refers to as “an individualized excusing condition”.

On the other hand, the necessity of an act may be said to exempt an actor from punishment, since the person who acts in a state of what Dickson J. calls “normative involuntariness” may be viewed as having been moved to act by the instinct for self-preservation. If so, the defence does not invoke the Court’s compassion but rather embodies an implicit statement that the sanction threatened by the law (i.e. future punishment in one form or another) could never overcome the fear of immediate death which the accused faced. Accordingly, in such a case the law is incapable of controlling the accused’s conduct and responding to it with any punishment at all. Although such an act dictated by the necessity of self-preservation is a voluntary one (in the normal sense of the word), its “norma-

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tive involuntariness” (in the sense that the actor faced no realistic choice) may form the basis of a defence if this is conceived as based on the pointlessness of punishment rather than on a view of the act itself as one the accused was entitled to commit. Indeed, one finds an explicit warning to this effect in Kant, The Metaphysical Elements of Justice (trans. Ladd, 1965), at pp. 41-42, where it is asserted that “through a strange confusion among jurists” the analysis of the wrongfulness of an act is often intertwined with the unquestionable futility of inflicting punishment on a person who has acted in despair or in circumstances of dire necessity.

It may be opportune at this point to comment briefly on the need to avoid slipping into what may be labeled an “instrumentalist analysis” of the purposes of punishment. For example, an analytic focus on excusing conditions is often premised on the fact that punishment in such situations will not serve the further goals of deterrence, rehabilitation, etc. (see, e.g., Glanville Williams, Criminal Law: The General Part (2nd ed. 1961), esp. at pp. 738-39). Such considerations, however, cannot form the basis of an acceptable defence since they seem to view criminal culpability merely as a phenomenon in a chain of cause and effect. From an instrumentalist point of view the question is not whether liability is demanded in and of itself (as Lord Coleridge insisted must be the case in Dudley and Stephens, supra), but rather whether the infliction of punishment will have some positive consequential effect (see, e.g., J. Bentham, An Introduction to the Principles of Morals and Legislation, vol. II, 2nd ed., 1823, p. 1).

The view of criminal liability as purposive only when it serves as a means to a further end is inherently problematic since the further goals of punishment are by their very nature one step removed from the determination of guilt or inno-

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cence. Just as we do not inquire into the socio-economic effects of a particular remedy for determining parties’ respective rights in civil litigation (see, e.g., Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.)), it does not seem possible to evaluate criminality with regard to the end results which punishment will or will not achieve. Accordingly, if the basis for the accused’s defence is reducible to compassion for his individual attributes or predicament, or the ineffectiveness of punishment in rehabilitating him or deterring future acts, the question raised is the type of remedy and the fashioning of an appropriate sentence. The concerns embodied in such a defence are legitimately addressed to the sentencing process but cannot, in my view, be the basis of a successful defence leading to an acquittal.

This, however, is distinguishable from the situation in which punishment cannot on any grounds be justified, such as the situation where a person has acted in order to save his own life. As Kant indicates, although the law must refrain from asserting that conduct which otherwise constitutes an offence is rightful if done for the sake of self-preservation, there is no punishment which could conceivably be appropriate to the accused’s act. As such, the actor falling within the Dickson J. category of “normative involuntariness” is excused, not because there is no instrumental ground on which to justify his punishment, but because no purpose inherent to criminal liability and punishment—i.e. the setting right of a wrongful act—-can be accomplished for an act which no rational person would avoid.

Returning to the defence of necessity as a justification, 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. When grounded on the fundamental principle that a successful defence must characterize an act as one which the

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accused was within his rights to commit, it becomes immediately apparent that the defence does not depend on the immediacy or “normative involuntariness” of the accused’s act unless, of course, the involuntariness is such as to be pertinent to the ordinary analysis of mens rea. The fact that one act is done out of a sense of immediacy or urgency and another after some contemplation cannot, in my view, serve to distinguish the quality of the act in terms of right or wrong. Rather, the justification must be premised on the need to fulfil a duty conflicting with the one which the accused is charged with having breached.

In discussing justification based on a conflict of duties one must be mindful of the viewpoint expressed by Dickson J. in Morgentaler v. The Queen, [1975] 8 (SCC), [1976] 1 S.C.R. 616 at p. 678, to the effect that “[n]o system of positive law can recognize any principle which would entitle a person to violate the law because in his view the law conflicted with some higher social value”. This statement, in my view, is clearly correct if the “higher social value” to which the accused points is one which is not reflected in the legal system in the form of a duty. That is to say, pursuit of a purely ethical “duty” such as, for example, the duty to give to charity, may represent an ethically good or virtuous act but is not within the realm of legal obligations and cannot therefore validly be invoked as a basis on which to violate the positive criminal law. This illustration exemplifies the essential proposition that although “a morally motivated act contrary to law may be ethically justified… the actor must accept the [legal] penalty for his action”: United States v. Moylan, 417 F. 2d 1002 (4th Cir. 1969), at p. 1008.

Similarly, Dickson J. in his reasons for judgment in the present case correctly underlines the fact that a utilitarian balancing of the benefits of

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obeying the law as opposed to disobeying it cannot possibly represent a legitimate principle against which to measure the legality of an action since any violation of right permitted to be justified on such a utilitarian calculus does not, in Dickson J.’s words, “fit[s] well with the judicial function”. The maximization of social utility may well be a goal of legislative policy but it is not part of the judicial task of delineating right and wrong. The case of Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), affords an appropriate illustration. In raising a defence of necessity to a charge of trespass the defendants implicitly argued that a violation of the rights of the property owner was justified because of the maximized social utility achieved by their using the property in that otherwise the defendants would remain homeless and the property unused. Lord Justice Megaw recognized that it was no part of the adjudicator’s task either to maximize utility or distribute scarce resources on some criterion of merit as demanded by the defendants since the distribution of society’s resources is a political process that must be accomplished by a distributive mechanism encompassing the entire policy. Lord Denning pointed out that if such claims became a matter of right for an adjudicative body to determine and enforce, the very notion of right would be undermined. He said at p. 744: “If homelessness were once admitted as a defence to trespass, no one’s house could be safe”.

Accordingly, not only can the system of positive law not tolerate an individual opting to act in accordance with the dictates of his conscience in the event of a conflict with legal duties, but it cannot permit acts in violation of legal obligations to be justified on the grounds that social utility is thereby increased. In both situations the conflicting “duty” to which the defence arguments point is one which the court cannot take into account as it invokes considerations external to a judicial analysis of the Tightness or wrongness of the impugned

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act. As Lord Coleridge succinctly put it in Dudley and Stephens, supra, at p. 287: “Who is to be the judge of this sort of necessity?”

On the other hand, in some circumstances defence counsel may be able to point to a conflicting duty which courts can and do recognize. For example, one may break the law in circumstances where it is necessary to rescue someone to whom one owes a positive duty of rescue (see R. v. Walker (1979), [1979] 2944 (ON SC), 48 C.C.C. (2d) 126 (Ont. Co. Ct.)), since failure to act in such a situation may itself constitute a culpable act or omission (see R. v. Instan, [1893] 1 Q.B. 450). Similarly, if one subscribes to the viewpoint articulated by Laskin C.J.C. in Morgentaler, supra, and perceives a doctor’s defence to an abortion charge as his legal obligation to treat the mother rather than his alleged ethical duty to perform an unauthorized abortion, then the defence may be invoked without violating the prohibition enunciated by Dickson J. in Morgentaler against choosing a non-legal duty over a legal one.

It must be acknowledged, however, that on the existing state of the law the defence of necessity as justification would not be available to the person who rescues a stranger since the absence of a legal duty to rescue strangers reduces such a case to a conflict of a legal with a purely ethical duty. Such an act of rescue may be one deserving of no punishment and, indeed, deserving of praise, but it is nevertheless a culpable act if the law is violated in the process of the rescue.

As Professor E.J. Weinrib has most astutely pointed out, rescue scenarios often represent the mirror image of necessity scenarios; to acknowledge necessity as a justification premised on the

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discharge of the conflicting duty to rescue a stranger could, without much stretch of the imagination, be turned around so as to enable a potential rescuee to assert a right to be rescued by any stranger (Weinrib, “The Case for a Duty to Rescue”, (1980) 90 Yale L.J. 247, at pp. 273-74). By way of illustration, in the classic torts case of Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910), it was held that a ship owner was right in helping himself to the use of a dock owner’s property during a storm, thus invoking the defence of necessity to a charge of trespass to the dock. The argument was premised on the notion of conflicting legal duties and was allowed to succeed in large part due to a previous ruling in Ploof v. Putnam, 71 A. 188 (Vt. S.C. 1908), in which a dock owner in similar circumstances was held liable to a ship owner for refusing to grant the ship access to the dock during a storm. The combined effect of the two cases may be said to turn the altruistic action into a coercive one in that the rescuer is not only given a valid justification but the rescuee is perceived as having an enforceable right. For this reason the common law has refrained from enunciating either an extended duty to rescue or an expansive right of necessity. In such circumstances “[t]here may be a moral duty to… [perform a rescue], but it is not practicable to make it a legal duty” (Home Office v. Dorset Yacht Co., [1970] A.C. 1004, per Lord Reid at p. 1027). Rather, persons in need of aid from unknown passersby have been left to “be relieved by the charitable and the good” (per Lord Denning in Southwark London Borough Council, supra, at p. 744).

In similar fashion the ethical considerations of the “charitable and the good” must be kept analytically distinct from duties imposed by law. Accordingly, where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where

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the accused’s act constitutes the discharge of a duty recognized by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused’s choice of one over the other.

As the facts before the Court in the present case do not involve a conflict of legal duties it is unnecessary to discuss in detail how a court should go about assessing the relative extent of two evils. Suffice it to say that any such assessment must respect the notion of right upon which justification is based. The assessment cannot entail a mere utilitarian calculation of, for example, lives saved and deaths avoided in the aggregate but must somehow attempt to come to grips with the nature of the rights and duties being assessed. This would seem to be consistent with Lord Coleridge’s conclusion that necessity can provide no justification for the taking of a life, such an act representing the most extreme form of rights violation. As discussed above, if any defence for such a homicidal act is to succeed, it would have to be framed as an excuse grounded on self-preservation. It could not possibly be declared by the Court to be rightful. By contrast, the justification analysis would seem to support those cases in which fulfilment of the legal duty to save persons entrusted to one’s care is preferred over the lesser offences of trespass or petty theft: see Mouse’s Case (1608), 12 Co. Rep. 63; Ch. corr., Amiens, April 22, 1898, Ménard’s Case, S. 1899.2.1. The crucial question for the justification defence is whether the accused’s act can be said to represent a furtherance of or a detraction from the principle of the universality of rights.

In summary, it seems to me that the category of “normative involuntariness” into which an act done in the interests of self-preservation falls is characterized not by the literal 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,

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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. The only conceptual premise on which necessity as an excuse could rest is the inherent impossibility of a court’s responding in any way to an act which, although wrongful, was the one act which any rational person would commit.

Where the defence of necessity is invoked as a justification the issue is simply whether the accused was right in pursuing the course of behaviour giving rise to the charge. Thus, where the act otherwise constitutes a criminal offence (i.e. it embodies both mens rea and the actus reus) the accused must show that he operated under a conflicting legal duty which made his seemingly wrongful act right. But 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.

I would dismiss the appeals.

Appeals dismissed.

Solicitors for the appellants: Turnham, Green, Higinbotham & Woodland, Victoria; Janice R. Dillon, Vancouver; Ruby & Edwardh, Toronto.

Solicitor for the respondent: Roger Tassé, Ottawa.