Case Brief Wiki


The appellants were drug smugglers taking marijuana from Colombia to Alaska when their ship encountered troubles off the coast of Vancouver Island. They were forced to unload the cargo and set up camp on the shore as the ship was going to sink. They were at risk of death. They were acquitted at trial, but the Court of Appeal ordered a new trial which was appealed to the Supreme Court.


  1. What is the scope of the necessity defence? is the defence available?


Appeal dismissed, new trial ordered with a proper charge to the jury.


Dickson, writing for the majority, states that it is a longstanding principle that someone in situations that make it unrealistic and unjust to attach liability to cannot be convicted of crimes committed in the circumstances. The Crown does not challenge the claim that there is a common law defence of necessity; it was established in R v Morgentaler (1976). However, they object to the trial judge charging the jury concerning necessity based on the facts of this case and to him placing the burden of proof of the defence on the Crown, rather than the accused.

The Court says that necessity does not justify what someone has done as being lawful, they just excuse them from punishment when the circmstances are taken into consideration.

Dickson then sets out how the defence works. The burden or proof is always on the Crown to disprove necessity once it is raised. For it to apply:

  1. there must be an emergency involving clear and imminent peril, to be determined using a modified objective test, placing a reasonable person in the claimant's shoes;
  2. there must be no reasonable legal alternative to what is performed, also determined using a modified objective test; and
  3. one must look at the proportionality of the illegal act compared to the harm avoided using a standard objective test, as allowing for subjective input would make the criminal law inconsistent.

Dickson goes on to say that it does not matter if you were engaged in illegal or negligent activity when the necessity arose – all that matters is that you were in a state of emergency. Further, there needs to be an "air of reality" in all three steps of the test for a judge to charge the jury about the defence of necessity. Once it is raised, the Crown must disprove the evidence of necessity. You need to have proof of all three steps in order to succeed.


To successfully use the common law excuse of necessity there must be three elements:

  1. an emergency: clear and imminent peril - proven using a modified objective test;
  2. no reasonable legal alternative - proven using a modified objective test; and
  3. the illegal act must be proportional to the harm avoided - proven using a standard objective test

The burden is on the Crown to disprove these elements if necessity is raised.