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HELD

Crown’s Appeal dismissed; retrial order sustained (judge did not properly put the question of a “legal way out” before the jury).

TEST

The defence of necessity is an excuse, not a justification, i.e., the wrongfulness is not in question. 1The situation must be so emergent and the peril so pressing that normal human instincts cry out for action.  ­­­­2There must also be no legal way out.  3There must be proportionality between the harm inflicted and the harm avoided.  Although we speak of defence of necessity, the Crown always bears the burden of proving a voluntary act.

NOTES

Criminal theory distinguishes between “justifications” and “excuses”

Justification: challenges the wrongfulness of an action which technically constitutes a crime.

Excuse: concedes wrongfulness of the act but asserts circumstances are such that the act ought not to be attributed to the actor.

R. v. Morgentaler, Smoling, and Scott (1985) (Ont. C.A.)

FACTS

Morgentaler et al. were charged with conspired with intent to “procure the miscarriage of female persons.”  The jury acquitted.  The Crown brought an appeal challenging the appropriateness of necessity as a defence in this case.

ISSUE

Did the judge err in leaving the defence of necessity to the jury?

HELD

Yes. The defence was not available to the accused. Appeal allowed.

RATIO

The defendants consciously agreed to violate the law out of their dissatisfaction with it.  The defence of necessity recognizes that the law must be followed, but there are certain factual situations which arise which may excuse a person for failure to comply with the law.

NOTES

The justification/excuse distinction from Perka is salient here.

The defence of necessity was misconceived [by the trial judge].  

There was nothing involuntary about the agreement that the accused entered into.  

Not only did the defendants fail to make every reasonable effort to comply with the law, but they consciously agreed to violate it.  

This offers no basis for a defence of necessity.

R. v. Latimer (2001) 150 C.C.C. (3d) 129 (S.C.C.)

FACTS

Heartwrenching case of man who killed his 12 year old daughter. The daughter was stricken with a debilitating, though not terminal, case of cerebral palsy.  The trial judge removed the defence of necessity. The jury convicted Latimer of second degree murder. Sask. C.A. dismissed the appeal. Latimer appealed to the S.C.C.

ISSUE

Was the trial judge correct to remove the defence of necessity from the jury?

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