[1984] 2 S.C.R. 232, 28 B.C.L.R. (2d) 205
These are appeals from a judgment of the British Columbia Court of Appeal allowing the Crown's appeal from the acquittal of the appellants and ordering a new trial. The principal issues raised on appeal concern (i) the availability and content of the common law defence of necessity, (ii) the so-called botanical defence directed to the definition of "Cannabis sativa L." in the Narcotic Control Act, and (iii) whether the trial judge erred in refusing the Crown leave to call rebuttal evidence. The reasons which follow were delivered for the Court by Dickson J., concurring in result Ritchie, Chouinard and Lamer JJ.
The appellants were charged with importing cannabis into Canada and with possession for the purpose of trafficking after police seized a large cargo of cannabis from two vessels in No Name Bay on the west coast of Vancouver Island. At trial the accused led evidence that in early 1979 three appellants and a crew of sixteen were engaged to deliver a load of cannabis from international waters off Colombia to a drop point in international waters off the coast of Alaska. The ship Samarkanda left Tumaco, Colombia, with a port clearance document stating the destination to be Juneau, Alaska. Over a period in international waters a DC-6 aircraft dropped nets with 634 bales of cannabis which were taken aboard ship. A separate communications package gave rendezvous instructions with another vessel to pick up the cargo off Alaska.
En route the Samarkanda began to encounter mechanical problems — engine breakdowns, overheating generators and malfunctioning navigation devices — aggravated by deteriorating weather. Fuel consumption lightened the vessel, causing loss of cooling suction and overheating of generators. At about 180 miles from the Canadian coastline, with eight- to ten-foot swells and rising winds, it was decided for the safety of ship and crew to seek refuge on the Canadian shoreline to make temporary repairs. The Whitecap (a small boat carrying Nelson and others) found a sheltered cove called No Name Bay; the Samarkanda followed but grounded amidships on a rock because the depth sounder was not working. The tide ran out and the vessel listed severely to starboard. The captain, fearing the ship would capsize, ordered the men to offload cargo.
Early on May 22, 1979 police entered No Name Bay in a marked boat and arrested the vessels and all appellants except Perka and Nelson. The vessels and 33.49 tons of cannabis were seized. The appellants maintained they did not plan to import into Canada; their destination was Alaska and they intended to repair and leave. Experts called by the defence gave opinions that landing in the cove was prudent or essential for safety. The Crown challenged the distress story as recent fabrication and relied on the fact that, when police arrived, most of the marihuana and camping equipment were already on shore. The jury accepted the defendants' account and acquitted them.
The Crown appealed. After close of the defence case at trial the Crown applied for leave to call rebuttal evidence about the condition of the vessel; the trial judge refused, holding the defence should not have taken the prosecution by surprise. The trial judge also withdrew from the jury the "botanical" defence tendered by the appellants that the Crown had failed to prove that the plant was "Cannabis sativa L." as defined in the Narcotic Control Act. The Court of Appeal allowed the Crown's appeal, holding the trial judge erred in refusing leave to call rebuttal evidence, but agreed with the trial judge in withdrawing the botanical defence. The appellants appeal to this Court.
From antiquity commentators and jurists have recognized circumstances in which the force of events makes it unjust to impose criminal liability for acts that technically violate the law. Authorities ranging from Aristotle to Hobbes, Kant and older English and Canadian authorities have treated the jettisoning of cargo, actions to avoid imminent death, and other desperate measures as raising questions of excuse or justification. Cases illustrating the debate include those involving shipwrecked mariners, cannibalism (R. v. Dudley and Stephens), throwing persons overboard to save a vessel (United States v. Holmes), and more mundane emergencies such as exceeding the speed limit to take an injured person to hospital.
In the United States many jurisdictions and the Model Penal Code recognize a general statutory defence of necessity, and American courts have applied it in various contexts including prison escapes, civil disobedience and unconventional medical treatments. In England, opinion has varied: while commentators such as Blackstone suggested principles that could be read as supporting necessity, later authorities and Halsbury's Laws have been skeptical of a broad common law necessity defence. The English Law Commission considered but ultimately rejected enacting such a general defence.
In Canada the question was discussed by this Court in Morgentaler v. The Queen, [1976] 1 S.C.R. 616. Although difficult to state categorically, Morgentaler acknowledged that if a defence of necessity exists it would be limited to urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible. Subsequent courts have generally assumed a defence of necessity exists in Canada and applied it in particular cases, sometimes finding it unavailable on the facts.
The term "necessity" in criminal law may embrace two distinct concepts — justification and excuse. A justification denies the wrongfulness of the act (the act is treated as rightful), whereas an excuse admits wrongfulness but asserts that in the circumstances the actor ought not be punished. Examples: self-defence and a police officer's use of force are commonly characterized as justifications; insanity, mistake of fact and similar conditions are excuses. This distinction matters for necessity because the two approaches lead to different rationales and limits.
As a justification the residual necessity defence is akin to Blackstone's "choice of evils" and entails utilitarian balancing: breaking the law may be excused where it prevents a greater evil. The Court remains skeptical of a broad utilitarian justification because it would permit subjectivity in deciding when to violate statutory law and would risk the judiciary supplanting legislative policy. Such a broad principle could become a "mask for anarchy."
As an excuse, necessity fits more comfortably within criminal theory. It recognizes human weakness and the principle that the criminal law should not punish acts that are, in a normative sense, involuntary — acts compelled by overwhelming pressures such that the actor had no real choice. Excuse preserves the wrongfulness of the act while relieving the actor from blame because punishment is unjustified or pointless. This conception aligns necessity with the voluntariness requirement of actus reus: where conduct, though physically voluntary, is normatively involuntary it may be excused.
Because necessity excuses wrongful acts, it must be strictly limited. The defence applies only where the wrongful act was truly involuntary in the relevant sense. Important limitations include: (1) the peril must be imminent and the situation urgent so that normal options are unavailable; (2) compliance with the law must be demonstrably impossible — there must be no reasonable legal alternative or "legal way out"; and (3) proportionality: the harm inflicted by the accused's breach of law must be less than the harm sought to be avoided.
These requirements operationalize the inquiry into whether the accused's action was the only realistic reaction open to him. If the accused could reasonably have pursued a lawful alternative, or if the response was disproportionate to the peril, the act cannot be characterized as involuntary in the moral sense underlying the defence.
The Crown urged, relying on R. v. Salvador, that an accused who is engaged in illegal activity when the necessitous circumstances arise should be denied the defence as a matter of law. The Court rejects such a sweeping bar. If the relevant illegality occurred under the law of the forum it may be relevant, but where the peril arises while the accused was committing acts not illegal in the forum (for example, illegal under foreign law but not under Canadian law because the events occurred on the high seas), mere illegality at the time does not automatically disentitle one to the defence.
However, the accused's "fault" in bringing about the situation can be relevant in a narrower sense. If the peril was foreseeable and the accused contemplated or ought to have contemplated that his conduct would likely give rise to an emergency requiring the breaking of the law, then his subsequent conduct may not be regarded as involuntary. This notion of "contributory fault" is akin to the exception in the duress defence which excludes members of a criminal association whose conduct makes them vulnerable to compulsion: the issue is foreseeability and self-created exposure to the risk, not mere negligence or immorality per se.
Though necessity is raised by the accused, the Crown bears the burden of proving voluntariness as an element of the offence. If the accused adduces sufficient evidence to raise the issue — through his own witnesses or cross-examination — so that an objective view of the facts could support a finding that compliance with the law was impossible, the Crown must disprove the defence beyond a reasonable doubt. The court rejects the Crown's contention that s. 7(2) of the Narcotic Control Act shifts the persuasive burden of proof to the accused with respect to the common law defence of necessity: s. 7(2) pertains to statutory exceptions such as licences and does not displace the common law rule that the prosecution must prove voluntariness.
Summarizing: (1) necessity may be conceptualized as justification or excuse; (2) in Canada it should be recognized as an excuse operating by virtue of s. 7(3) of the Criminal Code; (3) it does not vindicate the actor's deed; (4) the criterion is moral involuntariness measured by society's expectations of resistance to pressure; (5) negligence or immoral conduct does not per se bar reliance on the defence; (6) evidence that the deed was not truly involuntary or that a reasonable legal alternative existed disentitles the accused; (7) the act must have been inevitable and unavoidable with no reasonable non-illegal alternative; (8) the peril must be imminent; and (9) where sufficient evidence is placed before the court the Crown bears the onus to disprove necessity beyond a reasonable doubt.
The trial judge properly concluded there was sufficient evidence to raise the issue of necessity and therefore properly directed the jury on that defence. However, while the judge repeated the Morgentaler formulation that the jury must find "an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible," his subsequent explanations failed to instruct the jury about the crucial requirement that there be no reasonable legal alternative available to the accused. Instead, in his recharge the judge emphasized whether, as reasonable people, the jury thought the appellants were justified — language that focused on the reasonableness of the accused's conduct but did not direct attention to the existence of lawful alternatives.
Failure to instruct the jury on the "legal way out" requirement was a serious error going to the heart of the defence of necessity. Because this omission could have materially affected the jury's verdict, the error warrants ordering a new trial.
The Narcotic Control Act, s. 2, defines cannabis (marihuana) as "Cannabis sativa L." At trial the appellants' experts testified that cannabis consists of three species — Cannabis sativa L., Cannabis indica Lam., and Cannabis ruderalis Jan. — whereas the Crown's experts maintained marihuana is monotypic, i.e. Cannabis sativa L. It was proven that the Samarkanda's cargo was marihuana but not that it was specifically Cannabis sativa L. The appellants asked the judge to submit the taxonomic question to the jury and acquit if the Crown had not proven the prohibited species.
The trial judge ruled the phrase "Cannabis sativa L." is a technical botanical term and that its meaning should be fixed at the time the Narcotic Control Act was enacted (contemporanea expositio). In 1961, when the Act became law, botanists were virtually unanimous that marihuana was monotypic and that the variants called C. indica and C. ruderalis were subspecies of C. sativa L. Where Parliament has deliberately chosen a specific scientific term to represent a specific class, it would be contrary to parliamentary intent to adopt a new meaning whenever taxonomic consensus shifts.
Applying the doctrine of contemporanea expositio, and considering statutory purpose and public notice principles, the trial judge correctly ruled as a matter of law that "Cannabis sativa L." in the Act embraces all forms of marihuana and therefore correctly withdrew the botanical defence from the jury. This approach is consistent with earlier Canadian and American decisions.
The Court of Appeal held the trial judge erred in refusing the Crown's application to call rebuttal evidence and ordered a new trial on that basis. Because this Court has already concluded a new trial must be ordered owing to the trial judge's erroneous charge on necessity, the question whether the trial judge exercised his discretion properly with respect to rebuttal evidence in the first trial is rendered unnecessary to decide here.
For the foregoing reasons the Court of Appeal was correct in ordering a new trial and was correct in sustaining the trial judge's withholding of the botanical defence from the jury. The appeals are dismissed.
WILSON J. — Concur in Result
I am in agreement with the factual summary and the ultimate disposition of the appeal set out in the reasons of Dickson J., and I agree that the appeals should be dismissed. I write separately because I wish to express my respectful difference with respect to one aspect of his reasoning: his analysis of the jurisprudential basis for the defence of necessity, where he seeks to confine it to the category of excuse.
The criminal law distinguishes justification and excuse. Justification challenges the wrongfulness of the act; excuse concedes wrongfulness but seeks forbearance from punishment. Dickson J. places the residual defence of necessity within the concept of excuse. I am firmly of the view that the Court should not foreclose the possibility that necessity may, in appropriate cases, be grounded on justification as well as on excuse.
Viewed as an excuse, the defence rests on "normative involuntariness": although the act was physically voluntary, the actor had no real choice because of overwhelming pressures, and therefore punishment would be inappropriate or pointless. This individualized approach to excusability has force, and in some circumstances — particularly where the actor acts in the interest of self-preservation — such an excuse is appropriate.
But the defence of necessity may also rest on justification where the accused's conduct is the performance of a legal duty or the selection of a legally sanctioned course of action over the commission of a lesser wrong. Justification requires that the act be rightful — i.e. that the accused acted in discharge of a duty recognized by law. This excludes attempts to rely on purely ethical duties or on utilitarian calculations of social utility; the conflicting duty must be legal in nature and the choice between duties must respect proportionality and the universality of rights.
Accordingly, while I agree with Dickson J.'s careful limitations on the defence and with his conclusion in the present case, I would not adopt language which tends to close the door on justification as an appropriate basis of necessity in cases where the accused's conduct is properly characterized as the discharge of a legally recognized duty.
For these reasons I concur in the result and would dismiss the appeals.