Justifications, Excuses, and Institutional Defences

AuthorMichael Plaxton
[ 480 ]
ch apte r 13
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.
[ 481 ]
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.
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 .

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