R. v. Perka
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Perka v. The Queen. [1984] 2 S.C.R. 232 is the leading Supreme Court of Canada decision on the criminal defence of necessity.
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[edit] Background
In 1979 William Francis Perka and sixteen crewmembers aboard the Samarkanda left from Tumaco, Columbia with the intentions of smuggling cannabis to Juneau, Alaska.They stayed near the coast of Columbia for three weeks, during that time a DC-6 aircraft made four trips dropping cannabis in shrimp nets, totalling about 634 bales of cannabis worth $6-7 million dollars. A package was also dropped, giving instructions to the Samarkanda to rendezvous with another ship.
During the voyage to Alaska the ship encountered engine problems, overheating generators and malfunctioning of navigation devices. Eventually, the generators overheated due to seawater being used as a coolant.
The weather worsened and the captain worried about the safety of the crewmembers and cargo. It was May 22, 1979, when it was decided to head for the Canadian coastline to get some rest and get the damage fixed. They went to the west side of Vancouver Island in place called “No Name Bay”. Fearing that the boat might capsize, the captain ordered his men to unload the cargo of cannabis. The crew, except for William Perka and Paul Nelson, the owner of the cannabis, were arrested for importing over 33 tons of cannabis.
At trial, the crew argued a defence of necessity. They did not intend to land in Canada. An expert defence witness testified that it was vital that they land on shore and would have sunk otherwise. The Crown argued that they were arrested while moving supplied onto shore which expressed an intention to stay in Canada. The crew were acquitted by the jury.
[edit] Opinion of the Court
Justice Dickson, writing for the majority, held that the crew could not successfully rely on a defence of necessity. The defence, Dickson described, was a rare exception that would only be allowed when there was clear "involuntariness" where the accused was "strictly controlled and scrupulously limited".
In order for an accused to successfully argue a defence of necessity they must establish three points. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.
[edit] Aftermath
The Perka test was later elaborated on in cases such as R. v. Latimer.
