Nov 25, 2014

Perka v The Queen Case Brief

Perka v. The Queen, [1984] 2 SCR 232

Facts: Accused were drug smugglers who were taking drugs, via international waters, from Columbia to Alaska, when off the shore of Canada, the rough seas caused their engine to overheat (also making it impossible to offload the drugs, as it would make the problem worse). As a result they entered a Canadian bay to make repairs. Accused were then caught and charged with importing a narcotic and possession of a narcotic for the purpose of trafficking contract to the Narcotics Control Act. Accused argued that necessity forced them to commit this crime and that as such they should be acquitted


  1. Is necessity a justification for committing a prohibited offence or is it merely an excuse?

  2. What is the test for necessity?

Held: Appeal dismissed, new trial ordered


  • (2) The defence of necessity is restricted to urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible. There must also be some way of assuring proportionality

  • (1) 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


  • (1) Criminal theory recognizes a distinction between ‘justifications’ and ‘excuses’

    • A ‘justification’ challenges the wrongfulness of the action which technically constitutes a crime

      • As a justification, necessity 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

        • With regard to this conceptualization, 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

        • It would invite the courts to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions

  • 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
    • As an excuse, necessity is open to much less criticism. It rests on a realistic assessment of human weakness, recognizing that a liberal and human 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

  • (2) The requirement that the situation be and the peril be imminent tests whether it was indeed unavoidable for the actor to act at all
    • 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 out?

  • Proportionality must be a requirement because 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
  • The question is never whether what the accused as done is wrongful. It is always and by definition, wrongful. The question is whether what he had done is voluntary
    • The criterion is the moral involuntariness of the wrongful action

  • Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity
  • Dissent (Wilson J):

    Issue 1

      ·My concern is that the learned Chief 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

      ·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 necessity is invoked as a justification for violation of the law, the justification must be restricted to situations where the accused’s act constitutes the discharge of a duty recognized by law

    Issue 2

    The overarching question in cases of necessity, therefore, is “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