Perka+c.+La+Reine

Sorry! I am posting this old summary for now because there was some confusion and we did two summaries of Ruzic but none for Perka. New and improved to come..

Perka c La Reine - SCC, 1984
· from the earliest times it has been maintained that is some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law. Cites Aristotle (Nicomachean Ethics), Hobbes (Leviathan), Kant (Metaphysical Elements of Justice): · Kant, in discussing the actions of a person who, to save his own life kills another, wrote: “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 is still unpunishable.” · in a 1982 Working Paper, the Law Reform Commission of Canada noted that “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.” · **criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime**… 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. … as a justification, the residual defence of necessity 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. · WRT this conceptualization of a residual defence of necessity, I retain the scepticism I expressed in //Morgentaler// (1976). It is still my opinion that “No 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 CC 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 unto 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. ---would lead to anarchy · **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.** T**hrough this lens, the residual defence of necessity is 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 law in emergency situations where normal human instincts, whether of altruism or self-preservation, overwhelmingly impel disobedience.** · to engage criminal liability the actions constituting the AR 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. e.g. lost alpinist – his choice is not a true choice at all, it is remorselessly compelled by normal human instincts… it is realistically unavoidable. As Fletcher notes, “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. · In //Morgentaler// 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.” The importance of there being no legal alternative cannot be overstressed. There must also be some way of assuring proportionality. · looks for __normative involuntariness__ – e.g. skiier · **Summary 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 but virtue of s. 7(3) of the CCC; (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 applies only in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; and (10) where the accused places before the Court sufficient evidence to raise the issue, the onus in on the Crown to meet it beyond a reasonable doubt. · agrees generally, but is concerned that the CJ appears to be closing the door on justification as an appropriate jurisprudential basis – is firmly of the view that this is a door that should be left open. · In the case of justification of 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. · considers that mistake of fact, automatism, self-defence, provocation, etc fall under the rubric of justification, not excuse – they are raised to negative MR, and are invoked to undermine the very ingredient of culpability. · by contrast, the nature of the excuse is to personalize the plea so that, while justification looks to the righteousness of the act, excuse speaks to the compassion of the Court for the actor. · the CJ stresses normative involuntariness, which seems to mean that the individual’s criminally wrongful act was nevertheless blameless in the circumstances. … 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… 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 and not on the actor. 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 the CJ 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 the implicit statement that that the sanction threatened by law (i.e. future punishment in one form or another) could never overcome the fear of immediate death which the accused faced. · don’t want to slip into “instrumentalist analysis” of the purposes of punishment. For e.g., 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. Such considerations, however, cannot fully 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, but rather whether the infliction of punishment will have some positive consequential effect. · 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 innocence. Just as we do not inquire into the socio-economic effects of a particular remedy for determining parties’ respective rights in civil litigation, 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. · 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 not only that was the act a necessary one but that it was rightful rather than wrongful. When grounded on the fundamental principle that a successful defence must characterize an act as one which the 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 MR…. It is an 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” ( // US //// v. Moylan //, USCA 4th Circ. 1969). · 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 argument points is one which the Court cannot take into account, as it invokes considerations external to a judicial analysis of the rightness or wrongness of the impugned action. · In summary, the category of “normative involuntariness” into which an act done in the interests of self-preservation fall 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, 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 an AR and an MR) 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.
 * facts: ** Appellants are drug smugglers, taking 7-8M$ from Colombia to Alaska. There were 2 ships, one of which had many mechanical problems. In bad weather, it was decided for the safety of the ship and crew to seek refuge on the Canadian shoreline for the purpose of making temporary repairs. Found a sheltered cove on the west coast of Vancouver Island. Ship w/ drugs grounded bc depth sounder was not working. Tide ran out. The vessel was in bad condition and the Captain, fearing the boat would capsize, ordered the men to offload the cargo. Early one morning, police officers entered the Bay in a marked police boat, sirens blaring, arrested the crew, and seized the vessels and 33.49 tons of pot. The appellants were charged with importing cannabis into Canada but claimed that they didn’t plan to import into Canada or leave their cargo in Canada. They had planned to make repairs and leave. Expert witnesses on marine matters testified that the decision to go ashore was “expedient and prudent” and “essential”. Based on the defence of necessity, the jury acquitted them.
 * issues: ** (1) in light of these facts, did the TJ err in instructing the jury on the defence of necessity 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?
 * held – ** In failing to advert to whether there were any reasonable responses to the peril that were not illegal, the TJ made a serious error and omission that went to the heart of the defence of necessity. The CA was correct in ordering a new trial. As for the BOP, there is no onus of proof on the accused.
 * reasons: (DICKSON J + 3) **
 * WILSON J - **