Criminal Law: Necessity Defense in Murder Case

This article discusses a murder case where five survivors on a boat were charged with first-degree murder for killing a crew member out of necessity. It explores the concept of necessity defense in Canadian criminal law and analyzes the charges, defenses, and relevant case laws. The article also highlights the role of a witness in clarifying the issues and concludes with the argument for the defense.

Criminal Law
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Table of Contents
Introduction...........................................................................................................................................3
Main context..........................................................................................................................................3
Conclusion.............................................................................................................................................6
References.............................................................................................................................................7
Appendix...............................................................................................................................................8
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Introduction
Seven people sailed out on a charter boat and a thunderstorm struck the ship. Two crew
member lost they are conscious and regained it after 2-3 days and found out that there was no
food and water left with them. Due to extreme hunger and to survive they killed a crew
member called Bacon. When they got rescued charge of Bacon’s murder has been made on
four cast members under first-degree murder section 76,271,272,273,279 and 279.11. But
considering their situation they cannot be convicted as there was no appropriate chance of
saving life except killing someone.
Main context
Issues
In the above mentioned case five survivors on a boat were charged with first degree murder.
They killed Bacon out of necessity as there was no food or drink left for them in the boat. If
they boat members had not killed Bacon they would all have died of hunger and starvation.
The boat members were compelled by the situation to kill someone for their own survival.
The third defense is of necessity, when it becomes necessary for a person to kill someone to
save himself is not an offence under law and can be used as defense to avoid prosecution.
Captain Bob was knocked down by a thunder storm and after regaining conscious they could
not remember who they are and were of view that they were any character from comic show.
So it can be said that Captain Bob was not mentally sound and therefore lacks the guilty mind
while committing murder. Five of the survivors were charged with murder except for
Shannon. He was weak but slowly recovered during the trial. Shannon was kicked out from
the show by her producer as she found out that he is not fit for the role.
Effect of the relevant case law
Murder is defined in the law of Canada as culpable homicide. The definition of culpable
homicide is incorporated under section 229 in- the criminal code of Canada2. Under the
criminal code of Canada, a person is said to have committed murder when he became the
reason to the death of another individual either with the intention to cause death or by
1Baker, D. (2014). The temptation of provincial criminal law. Canadian Public Administration, 57(2),
pp.275-294.
2Husak, D. (2013). The Philosophy of Criminal Law: Extending the Debates. Criminal Law and
Philosophy, 7(2), pp.351-365.
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intending to cause harm of such nature that will eventually result in death. Murder under the
criminal code of Canada is of two types. Murder can either be of first degree or second
degree. First-degree murder is where the killing is intentional and thoughtful. If the murder is
of a peace officer it will amount to first-degree murder irrespective of the fact that the murder
was not planned and thoughtful. Murder is considered to be a first-degree murder when death
is caused to a person while obligating an offense under section 76,271,272,273,279 and 279.1
irrespective of the fact that the murder was not planned and deliberate3. All other murders
except those categorized as first-degree murder will come under second-degree murder.
However, the common law allows a number of defenses to criminal action that have been
defined in the case law. As per the third defense where an accused person has no choice
except committing a crime because the circumstances allow no other choice except
committing the crime someone and according to this the four members of the cast cannot be
guilty as they are compelled by the situation to commit the crime.
There is life imprisonment in Canada for committing murder either of first degree or second
degree. The sentence of life imprisonment under this section is a minimum punishment. In
the above-mentioned case, all the persons who were in the ship were convicted of the murder
of first degree except Shannon. All the surviving members have conspired to kill Bacon and
eat him up as there was no food left with them. But considering their situation they cannot be
convicted as there was no appropriate chance of saving life except killing someone for others
to eat. In the case, R. V. MAGOON, 2018 SCC 14, [2018] 1 S.C.R. 309 a six years old was
tortured by her father and stepmother to such an extent that she succumbed to her injuries and
the court convicted her parents of first-degree murder4. To constitute the offense of murder
there should be both actusrea and men's rea. The act must be voluntary and willful. They
must have knowledge of the fact that they have been doing and the consequences of the same.
Under section 16 of the criminal code of Canada, it has been stated that it is a person is
unable to judge the nature of the act and the consequences thereafter due to mental disorder
they are not criminally responsible because due to their disability they cannot differentiate
between the right and wrong. As they do not have any guilty mind they are not criminally
liable5.
3Reid, S. (2013). Criminal law. 5th ed. New York: Oxford University Press.
4Scc-csc.lexum (2019). R. v. Magoon - SCC Cases (Lexum). [online] Scc-csc.lexum.com. Available
at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17058/index.do [Accessed 30 Mar. 2019].
5Libman, R. (2014). Canadian criminal law (ITLP401). 3rd ed. [Toronto]: Internationally Trained
Lawyers Program, Faculty of Law, University of Toronto.
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Witness for clarifying the issues
Shannon can be called as a witness to clarify the issues. Shannon was not involved in the
conspiracy to kill Bacon while others have actively participated in his murder6. He was
against this act done by the rest of the members in the ship. Shannon can clearly describe to
the court about the situation of the other members. How they were suffering from hunger and
left with no other option except killing Bacon. The members were starving for five days as
there was no food left with. The crew members decided jointly to kill Bacon in order to
survive on his flesh. Shannon can show the real picture as to how much those people were
bound to commit such an act in order to save them from starving that if such an act was not
done they would all have died in the ocean7.
Defense
The four-member of the cast killed one crew member name Bacon as they did not have any
other option. If my clients have not killed Bacon and eaten him then they might not have
survived. There was no appropriate chance to save life except killing Bacon for others to eat.
As a defense I would argue on the basis on the law that is when an individual person acting
upon his own decisiontakings the life of a fellow man, his act can only be vindicated on the
ground of self-defense against the acts of the person whose life is taken. They cannot be
accused guilty because when they killed Bacon, they killed him under the pressure of
necessity8.
An individual who, in order to escape death from starvation, killing someone for the
determination of consumption his flesh, is guilty of murder; though during the time of the act
he was in such conditions that he believed and has justified ground for believing that it
afforded the only option of saving his life. Murder has been defined as “culpable homicide”
in ss 229 to 231 of the Criminal Code of Canada. It explained that a person commits murder
where they cause the death of another person either intentionally or intended to cause harm
that the person knows that it might cause death and are reckless as to whether death results.
However, the common law allows a number of defenses to criminal action that have been
defined in the case law. As per the third defense where an accused person has no choice
6Thomas, G. (2010). Cornerstone law series. 3rd ed. [Adelaide]: Law Society of South Australia.
7Melton, B. (2010). The law. 4th ed. New York: Chelsea House Publishers.
8Kirton, J., and Madunic, J. (2009). Global law. 4th ed. Farnham: Ashgate.
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except committing a crime because the circumstances allow no other choice except
committing the crime and according to this my clients cannot be guilty as they are compelled
by the situation to commit the crime9.
Conclusion
A charge is considered to be a first-degree murder when death is caused to a person while
obligating an offense under section 76,271,272,273,279 and 279.1. irrespective of the fact
that the murder was not planned and deliberate. The five surviving members except Shannon
was charged with the murder of first degree as their act was seen as planned and deliberate
with an intention to kill Bacon. But at the same time if they would have not killed Bacon then
they might not have survived. The common law allows a number of defenses to criminal
activity that has been defined in the case law. As per the third defense where an accused
person has no choice except committing a crime because the circumstances allow no other
choice except committing the crime and according to this the four members of the cast cannot
be convicted.
9Proulx, M. and Layton, D. (2015). Ethics and Canadian Criminal Law. 3rd ed. Toronto: Irwin Law.
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References
Baker, D. (2014). The temptation of provincial criminal law. Canadian Public
Administration, 57(2), pp.275-294.
Garvey, S. (2013). Canadian Scholars on Criminal Responsibility. Criminal Law and
Philosophy, 9(2), pp.351-364.
Husak, D. (2013). The Philosophy of Criminal Law: Extending the Debates. Criminal Law
and Philosophy, 7(2), pp.351-365.
Kirton, J. and Madunic, J. (2009). Global law. 4th ed. Farnham: Ashgate.
Libman, R. (2014). Canadian criminal law (ITLP401). 3rd ed. [Toronto]: Internationally
Trained Lawyers Program, Faculty of Law, University of Toronto.
Melton, B. (2010). The law. 4th ed. New York: Chelsea House Publishers.
Proulx, M. and Layton, D. (2015). Ethics and Canadian Criminal Law. 3rd ed. Toronto:
Irwin Law.
Reid, S. (2013). Criminal law. 5th ed. New York: Oxford University Press.
Scc-csc.lexum (2019). R. v. Magoon - SCC Cases (Lexum). [online] Scc-csc.lexum.com.
Available at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17058/index.do
[Accessed 30 Mar. 2019].
Thomas, G. (2010). Cornerstone law series. 3rd ed. [Adelaide]: Law Society of South
Australia.
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Appendix
R v Dudley and Stephens
In this particular case a teenage boy was killed by fellow shipmen after a shipwreck as they
have nothing to eat and when rescued from the ship the Canadian court firstly held them
guilty of murder but after hearing there plea of defense of necessity the Canadian court held
that they were compelled by the situation to take such a drastic step.
Perka v R
In this case some drug smugglers enter the Canadian land as there ship was broken and
needed immediate repairs the Canadian court held them to be guilt of importing illegal drugs
to Canada but after hearing their plea that they were in just to repair their ship court were
acquitted as they have entered Canada only for repairing their ship. They were not importing
any illegal drugs to Canada.
R. V. MAGOON
In this particular case a six years old baby was tortured by his father and step mother to such
an extent that the six year old succumbed to her injuries and died. The court held both of her
parents guilty of murder.
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