Necessity

• Perka v The Queen

  [1984] 2 SCR 232 · Supreme Court of Canada · importing cannabis

  Perka v. The Queen

  [1984] 2 S.C.R. 232
  Supreme Court of Canada — Ritchie, Dickson, Chouinard, Lamer and Wilson JJ. | January 31, February 1; October 11, 1984

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  Background

  William Perka and three co-accused were drug smugglers operating a ship called the Samarkanda, loaded with 33.49 tonnes of marijuana worth $6-7 million. Their plan was to deliver the cargo from Colombia to a drop point 200 miles off Alaska, where it would be picked up by another vessel. But everything went wrong — engine breakdowns, overheating generators, malfunctioning navigation equipment, and deteriorating weather conditions left the ship in serious distress. When the vessel began taking on water in rough seas 180 miles from the Canadian coast, with eight-to-ten-foot swells and rising wind, the captain feared the ship would capsize and ordered the crew to seek refuge on the Canadian shoreline to make emergency repairs.

  Early morning on May 22, 1979, police found the Samarkanda and a smaller vessel in "No Name Bay" on Vancouver Island. The accused were arrested and charged with importing cannabis into Canada and possession for the purpose of trafficking. Most of the marijuana was already onshore, along with camping equipment and supplies. The accused claimed they never intended to import the drugs into Canada — they had only come ashore because their ship was in distress and they feared for their lives.

  Issues

  1. Whether the defence of necessity was available to excuse criminal conduct when the accused acted to preserve life and safety?
  2. Whether "Cannabis sativa L." in the Narcotic Control Act included all forms of marijuana, or only specific botanical species?

  The Defence of Necessity

  The Supreme Court established the foundational test for the necessity defence in Canadian criminal law. Justice Dickson ruled that necessity operates as an excuse rather than a justification — it doesn't make the act legal, but recognizes that in emergency circumstances, a reasonable person might have no realistic choice but to break the law. The defence has strict requirements: (1) there must be imminent peril with no reasonable legal alternative available; (2) the harm avoided must outweigh the harm caused by breaking the law (proportionality); and (3) the emergency must not have been caused by the accused's own illegal conduct.

  Critically, the Court found that the trial judge made a serious error by failing to properly explain the "reasonable legal alternative" requirement to the jury. The judge told jurors to consider whether the accused acted "reasonably" in coming to shore, but didn't specifically direct them to consider whether there were other legal options available (like calling for coast guard assistance, or riding out the storm at sea). This was fundamental to the defence — if legal alternatives existed, necessity couldn't apply.

  The Botanical Defence

  The accused also argued that the Crown failed to prove their cargo was actually "Cannabis sativa L." as defined in the Narcotic Control Act, since expert evidence showed there might be three separate species of cannabis plants. The trial judge correctly rejected this "botanical defence" — when Parliament used the scientific term "Cannabis sativa L." in 1961, the botanical consensus was that all marijuana belonged to this single species. The Court ruled that technical terms in statutes should be given the meaning they had when the law was enacted, not evolving scientific interpretations.

  Key Takeaway

  The necessity defence exists in Canadian law, but courts will scrutinize whether you truly had "no reasonable legal alternative" to breaking the law.

  While this Supreme Court case deals with serious criminal charges rather than provincial offences, the necessity defence could theoretically apply to regulatory violations where someone breaks a rule to avoid immediate physical harm — but the emergency must be real, imminent, and leave no other reasonable legal option.

  Read the decision

• R v Card

  [2000] O.J. No. 2333 · Ontario Court of Justice · speeding

  R. v. Card

  [2000] O.J. No. 2333
  Ontario Court of Justice — Livingstone J. | January 10, 2000

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  Background

  Gary Card was driving on a country road at 11 p.m. after meeting his son to exchange cash when a vehicle began following him. The vehicle behind him wouldn't pass even when Card slowed down, and sped up whenever Card sped up. Card couldn't see who was driving and became frightened, thinking he might be in danger on this dark, lonely road. He sped up to 140 km/h in an 80 km/h zone to try to get away from what he thought was a threatening situation.

  It turned out the vehicle following him was a police officer investigating a stolen vehicle report, who then noticed Card speeding. The officer was doing his job properly, but Card had no way of knowing this — the officer hadn't turned on his emergency lights. When the officer finally activated his roof lights, Card immediately pulled over. Card was charged with speeding under the Highway Traffic Act.

  Issues

  1. Whether the defence of necessity can apply to a speeding charge
  2. Whether the Justice of the Peace properly applied the law when she said speeding is an "absolute offence" with no available defences

  The Defence of Necessity

  The trial Justice of the Peace got confused about the law. She said she didn't believe the defence of necessity was made out, but then added that "speeding is an absolute offence to which there is no defence." Justice Livingstone found this reasoning impossible to follow and identified it as an error in law.

  The court referenced the Supreme Court of Canada decision in Perka and the Ontario case Laudanski, which establish that necessity can be a defence even to regulatory offences like speeding. Laudanski specifically gave an example: "if you were on a lonely road and there is a guy toting a pistol following you in a car, that is an emergency situation." Card's situation fit this template — he was on a lonely road, being followed by an unknown vehicle that was acting threateningly.

  The key legal test is whether there was an imminent risk that justified breaking the law. Card's evidence showed he genuinely feared for his safety, couldn't identify the pursuing vehicle, and only sped up to escape what he reasonably perceived as a threat. The court found this was credible evidence that could support a necessity defence.

  Key Takeaway

  The defence of necessity can apply to Highway Traffic Act charges if you can prove you broke the law to avoid imminent harm.

  If you're charged with a traffic offence but honestly believed you had to break the law to protect yourself from immediate danger, document everything about the emergency situation and consider raising necessity as a defence. The key is showing you had no reasonable alternative and faced genuine imminent risk.

  Read the decision

• R v HALES

  [1995] O.J. No. 735

  Read the decision

• R v Haynen

  [2002] O.J. No. 4943

  Read the decision

• R v Perka1984canlii23

  1984canlii23

  Read the decision

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