Ontario’s Attorney-General Roy McMurty addressed the Ontario Legislature on Tuesday, December 4, explaining his reason for appeal.  The following are the relevant extracts from his address.

After explaining that the decision to appeal was made on strictly legal grounds, the Attorney General stated the following:

“The conduct of this case raises fundamental issues about the role of the jury in our system of criminal justice.  The accused readily agreed under oath that he decided to break the law.  The jury acquitted him after being urged by the defence to use their verdict as a vehicle for the purpose of amending or nullifying the law enacted by Parliament.

If this verdict stands unchallenged it would be open to defence counsel in any case to urge the jury that the law was wrong and that the jury should disregard the law.  It might also be open to crown counsel to suggest that a jury ignore traditional legal safeguards enjoyed by accused persons in order to secure a conviction.  This has profound implications for our jury system and for the enforcement of the criminal law generally.

Serious question of law

This case raises another serious question of law of great importance, the question of the precise legal scope and application of the defence of necessity.  In this case the accused readily admitted that he broke the law but he also relied upon the defence of necessity to relieve him of the consequences of his actions.

The defence of necessity was recently considered by five judges of the Supreme Court of Canada in the case of R. v. Perka, decided October 11, 1984.  The Chief Justice of Canada, the Honorable Brian Dickson, reviewed the state of the law as to the existence of such a legal defence:

“In Canada the existence and the extent of a general defence of necessity, was discussed by this court in Morgentaler v. The Queen, (1976) 1 S.C.R. 616.  As to whether or not the defence exists at all I had occasion to say at p. 678:

“On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law.  If such a principle exists, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.”

The legal status of defence of necessity

Subsequent to Morgentaler, the courts appear to have assumed that a defence of necessity does exist in Canada.

After discussing the subsequent proceedings in R. v. Morgentaler, and reviewing later Canadian decisions, Chief Justice Dickson said:

“In Morgentaler, I characterized necessity as an ‘ill-defined and elusive concept,’ despite the apparently growing consensus as to the existence of a defence of necessity that statement is equally true today.”

Although the existence of the defence of necessity was clarified in Perka, its exact scope and application is still in controversy.

These two questions of law, the role of the jury and the exact scope and application of the defence of necessity has, of course, implications far beyond the law of abortion.

Indeed they have profound implications for our criminal law as a whole.

In my view the public interest in the administration of criminal justice required that these matters of legal controversy be clarified through the scrutiny of the appellate court.

I have therefore accepted the advice of my criminal law advisors that a Crown appeal to the Court of Appeal for Ontario should be commenced pursuant to the provisions of Section 605 (1) (A) of the Criminal Code of Canada upon the following grounds of appeal involving questions of law alone:

(1)   The learned trial judge erred in law in leaving the defence of necessity to the jury, in that there was no evidence of one or more of the constituent legal elements of the defence of necessity.

(2)    The learned trial judge erred in law in leaving the defence of necessity to the jury in the absence of sufficient evidence to convey a “sense of reality” to that defence.

(3)   Alternatively, if there was sufficient evidence to merit an instruction on the defence of necessity the learned trial judge erred in law by:

(i) leaving to the jury for their consideration in assessing the applicability of the defence of necessity, matters which were irrelevant to that defence;

(ii) failing to instruct the jury as to other matters which were relevant to the applicability of that defence.

(4)   The judge erred in law in permitting defence counsel to address the jury in a manner which:

(i) Was inflammatory and calculated to cause the jury to disregard their oath in rendering their verdict;

(ii) Urged the jury to render a verdict based on their assessment of whether the law was a “good” law or a “bad” law;

(iii) Invited the jury to find that the conduct of the respondents was justified based upon an assessment of the constitutional validity of the legislation;

(iv) Urged the jury to render a verdict based on their assessment of the consequences of their verdict and the social desirability of those consequences;

(v) Invited the jury to consider their verdict to make a political statement to governmental authorities and agencies.

(5)   The learned trial judge further erred in law in his instructions to the jury by failing to instruct the jury fully, forcefully and specifically as to each of the improper submissions made by counsel for the respondents to the jury.

The crown appeal will give the defence an opportunity, which they would not otherwise have, to challenge the Criminal Code abortion provisions in the Court of Appeal on constitutional and Charter of Rights arguments which were dismissed by the learned trial judge before the commencement of the trial.”