Perka v. The Queen

A group of smugglers (defendants) attempted to smuggle marijuana from Colombia to Alaska by boat. However, the boat encountered mechanical problems and dangerous weather. For the crew’s safety, the smugglers went to the Canadian coast to repair the ship. The ship ran aground, and the marijuana was removed from the ship to protect it. Canadian law enforcement then arrested the smugglers for having illegally transported marijuana into Canada. At trial, the smugglers raised a defense of necessity. The smugglers argued that they had never intended to transport marijuana into Canada and presented expert testimony that the crew’s safety and survival required bringing the boat to shore at that time. The trial court initially instructed the jury that the necessity defense applied if (1) the evidence established an urgent situation of clear and imminent peril and (2) the situation made it impossible for the smugglers to comply with the law against importing marijuana. However, the trial court later told the jury that the necessity defense could be established solely with evidence that a reasonable person would have been justified in bringing the boat to shore. In this instruction, the trial court said nothing about the jury needing to also determine whether the smugglers could have responded to their peril in a legal way. The jury acquitted the smugglers. The appellate court reversed the acquittal, and the smugglers appealed to the Canada Supreme Court.