Justifications, Excuses, and Institutional Defences

• Author: Michael Plaxton
• Pages: 480-523

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ch apte r 13

JUSTIFICATIONS, EXCUSES,

AND INSTITUTIONAL

DEFENCES

A. INTRODUCTION

It falls to Parliament to guide members of the public, authoritatively

settling disputes concerning how it is permissible to act. It falls to

the courts to interpret oences in such a way that Parliament’s inten-

tion to guide is given eect. I have suggested that this division of

labour and responsibility rests on section  of the Criminal Code, but

also on background constitutional principles such as parliamentary

sovereignty, the rule of law, and the separation of powers.

Do matters change when we turn away from oences, and begin

to consider defences? Yes and no. At least on its face, the Criminal

Code invites us to draw a distinction between oences and defences.

This is because section () of the Code states: “Every rule and princi-

ple of the common law that renders any circumstance a justication

or excuse for an act or a defence to a charge continues in force and

applies in respect of proceedings for an oence under this Act or any

other Act of Parliament except in so far as they are altered by or are

inconsistent with this Act or any other Act of Parliament.” As we have

seen, a majority of the Supreme Court in Jobidon gave this provision

a wide interpretation, but it has otherwise gone largely unremarked

 Criminal Code, RSC , c C- [Criminal Code]

 R v Jobidon, []  SCR  [Jobidon]. See Chapter , Section B.

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Justifications, Excuses, and Institutional Defences

upon by judges and appellate courts since the early s. If the rea-

soning in Jobidon has not been formally rebuked or rejected, it has

been allowed to quietly languish for the best part of twenty-ve years.

In Chapter , I indicated that more recent decisions by the Supreme

Court indicate a clear move away from the logic of Jobidon — which,

if pushed, seems to reduce section  to little more than a footnote.

The relevant constitutional principles, of course, cannot be dis-

placed by section (), and they must inform our reading of its terms.

Separation-of-powers considerations require us to take seriously the

proviso in section () that common law defences are available only

where they are not “inconsistent with” statutory expressions by Par-

liament that a course of action is wrongful. To the extent that Parlia-

ment has said that a course of action is impermissible, the courts are

not entitled to hold otherwise. This means that the courts have van-

ishingly little or no authority to create justicatory defences since, as

we will see, their eect is to make permissible what would otherwise

be foreclosed. But it also means that judges must be circumspect

in their recognition or expansion of excusatory defences inasmuch

as they may be (incorrectly) treated by members of the public as

making certain courses of action permissible. In the sections that

follow, it will become clear that this is precisely the approach that

the Supreme Court has adopted. In the nal section of this chap-

ter, I make a number of remarks about institutional defences, such

as abuse of process, entrapment, and ocially induced error. These

also reinforce the guidance function of the criminal law, albeit in a

somewhat dierent way.

B. JUSTIFICATIONS AND EXCUSES

In thinking about the separation-of-powers implications of creating

or expanding criminal defences, it is important to keep in mind the

conceptual distinction between justications and excuses. A justi-

catory defence proceeds on the basis that the conduct of the accused

was (all things considered) permissible in spite of the criminal pro-

hibition in question. In Perka, Dickson J (as he then was) described

justications in the following terms:

[ 482 ] , ,  

A “justication” challenges the wrongfulness of an action which tech-

nically constitutes a crime. The police ocer who shoots the hos-

tage-taker, the innocent object of an assault who uses force to defend

himself against his assailant, the Good Samaritan who commandeers

a car and breaks the speed laws to rush an accident victim to the

hospital, these are all actors whose actions we consider rightful, not

wrongful. For such actions people are oen praised, as motivated by

some great or noble object. The concept of punishment oen seems

incompatible with the social approval bestowed on the doer.

There is some confusion here. Describing all justied actions as

“rightful,” for example, arguably goes too far. One would not want

to say that the individual who refuses to use force against another,

in defence of herself, has acted wrongfully. We may, in fact, think

of such a person as a kind of saint. Likewise, the police ocer who

chooses to put himself in extreme danger precisely to avoid shooting

the hostage-taker does not, for that reason, engage in wrongdoing.

Quite the contrary: he is a hero. Furthermore, one hesitates to sug-

gest that those who successfully make use of a justicatory defence

must, by denition, be praiseworthy, or have pursued some “great or

noble object.” The police ocer who shoots the hostage-taker may

simply be doing his job. The person who exercises self-defence may

well be acting predominantly out of fear. Neither of their responses

may strike us as particularly laudable. Among Dickson J’s examples,

the “Good Samaritan” seems to come intuitively closest to deserv-

ing moral brownie-points. And ironically, on Dickson J’s own analy-

sis, the Samaritan would be excused rather than justied. Aer all,

the only defence he would presumably enjoy is that of necessity — a

defence the Court in Perka treated as a pure excuse.

Still, Dickson J’s central point is valid. To say that a course of

action is “justied” is to say that it is permissible (or, in rare cases,

required) notwithstanding the existence of a criminal prohibition

 R v Perka, []  SCR  at  [emphasis in original] [Perka].

 Ibid at –. Many of the successful uses of the defence of necessity arise in the

context of motoring oences. See, for example, R v Hunt,  ONCJ ; R v McIlm-

oyle,  ONCJ .