The Necessity of Les Misérables

A few years ago, my in-laws took me to see Les Misérables playing in Toronto. It was a tradition of theirs that they were introducing to me. I loved it.

For those that haven't seen it, Les Misérables is a play based on the novel of the same name. It is set in pre-revolutionary France and centres on the protagonist's struggle to rebuild his life after being jailed for 19 years. In the opening scene, Jean Valjean is doing hard labour when he finds out he has been paroled:

Valjean explains that he has been jailed for 19 years for stealing a loaf of bread for his starving niece. Javert says that he was sentenced to five years for theft and the remainder as a consequence of trying to escape.

This production plays on our sense of injustice on multiple levels. In addition to providing a stark example of why we now have the welfare state, what strikes me is that in modern times, at least in Canada, we have the defence of necessity.

Canadian Criminal Law

In Canada, a person can only be charged with offences that are part of the Criminal Code of Canada (“the Code”).

When someone is charged with a criminal offence, they are presumed innocent until proven guilty. The Crown (prosecutor) must prove the defendant committed each element of the offence beyond a reasonable doubt. This is a high threshold of proof to meet.

Defences

Even if the Crown proves beyond a reasonable doubt that an accused committed an offence, the accused can present a defence. This defence may mitigate responsibility or it may provide a complete defence and result in the accused not being held criminally responsible.

Examples of defences:

• Self-defence – acting in defence of yourself under circumstances where reasonable force was used to fend off an attacker;

• Duress – committing a crime because you were forced to by someone else;

• Necessity – committing a crime to avoid a much worse outcome (being forced to by circumstance as opposed to by a person);

• Not Criminally Responsible – Mental Disorder (NCR-MD) – Being unable to understand or appreciate the nature or quality of your actions or that they were wrong.

These are common law defences. "Common law" means that they are described in case law, as opposed to statutes (such as the Criminal Code) where the law is written down in a separate document that has been passed by the legislature. (Although as I write this, I see that self-defence has now been codified in the Code but this is not meant to change the jurisprudence that comes from case law.)

For each of these defences, there is a legal test with various elements that must be met. For example, many people are familiar with the concept of self-defence: that if someone is attacking you and you use force for repel the attack and in that process harm the attacker, you are not held responsible for assault, for example. One of the elements of the legal test of self-defence is whether the force used in response was proportional. I cannot, for example, repel an attacker that poses very little threat with a bazooka (though I'm pretty sure owning a bazooka would itself be problematic). These same type of criteria exist for other defences.

Necessity

In 1984, the Supreme Court of Canada ("SCC"), Justice Dickson wrote in Perka v The Queen, [1984] 2 SCR 232:

a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.

There are three elements of the defence of necessity:

1. The accused must be in a situation of imminent danger.
• “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.”;
2. The accused must have no reasonable legal alternative to committing the crime.
• There is no legal way out.
3. There must be proportionality.
• The danger that exists must outweigh the harm caused by breaking the law.
• i.e. breaking the law to avoid minimal harm is not an excuse.

Case law goes on to show that there is a standard for each of these elements. For the first element, there is a modified objective standard. Briefly, a completely subjective standard is only concerned with what the accused believed (i.e. he or she felt that they were in danger, regardless of whether an observer would say so). A completely objective standard is not at all concerned with what the person felt, only whether a reasonable person would have thought they were in such danger. A modified objective standard is somewhere in between. In this case, the question is whether, objectively speaking, there was a situation of imminent danger, but it takes into account the circumstances of the accused (e.g. education, knowledge, etc.)

For the second condition, there is also a modified objective standard as to whether the accused believed they had no reasonable alternative to breaking the law.

The third criterion is purely objective. The defendant must show that the harm suffered was less than that avoided by breaking the law, objectively speaking (i.e. not that the accused believed this, but that it was actually so.)

If we go back to Jean Valjean's theft of bread for his starving niece who was dying, we can see that all three elements of necessity are made out. Imminent danger existed in that his niece was close to death. The lack of alternatives exists in that other food and means of sustenance were not available, and the avoidance of the death of a child clearly outweighs the theft of a loaf of bread.

What I find interesting is that the law looks at all of this through a very peculiar lens and takes a lot of writing to come to the same conclusion that all of us came to in our heads while watching Les Misérables. Of course, Jean Valjean was treated unjustly. We don't need to go through a detailed legal analysis to see that; we know it instinctively.

Interestingly, necessity was not firmly established as a defence in Canada until 1984.