A Fictional Defence of "Necessity"

In my last post I reviewed Stung by William Deverell. As he defends the Sarnia Seven against criminal charges for their break and enter of a chemical plant proceeding neonic insecticide and theft of documents it is clear no conventional criminal defence can succeed. Counsel, Arthur Beauchamp, and the accused decide to plead the defence of necessity. They will argue their criminal actions are justified.

All through the book I wondered how a credible defence of necessity would be mounted.

The defence, aided by the stolen documents, succeeds easily in challenging assertions that Vigor-Gro is a safe product. Were the conspirators suing the company for damages caused by injury attributable to V-G they would have a case but as a criminal defence of necessity they are far far short of a viable defence.

Every expert in the world could be called but they can neither establish imminent peril nor a lack of alternatives.

Direct action in support of what is considered a progressive cause, yet which is criminal action, is justified every day in the second decade of the 20th Century. Little thought is given to the inevitable consequence that comparable action will be taken and justified by those who support positions deemed non-progressive.

I have raised necessity but once in my career. It was in the defence of an impaired young man who, thrown out of his parent’s cabin in northern Saskatchewan, drives to the unoccupied cabin of other members of the family to gain shelter on a -25C night. There are no occupied cabins he can walk to from his parents cabin. Almost all other cabins are only used during the summer. He is 100 km or more from the nearest taxi. There is no one he can call for a ride who is any closer. Charged with impaired driving I was able to convince the prosecutor that necessity applied when I asked him what he would have done.

Here the Seven are caught up in the challenge of proving there was no lawful alternative to their actions. As Crown counsel pointed out tobacco and opioids have been challenged through various court actions bringing about major changes with regard to their usage and risks.

Even more difficult it is hard to justify attacking a company engaged in the lawful production of a chemical. Neonicotinoids are powerful and can be dangerous. Their usage can be challenged with Health Canada.

Were it a real life trial the evidence would not have been so one-sided on the dangers of neonicotinoids.

As an illustration of the real life arguments over neonicotinoids in 2021, Health Canada, after extensive study, and the receipt of 47,000 comments restricted the use of some neonicotinoids but did not ban them.

In September of last year:

In order to protect pollinators, Health Canada cancelled many uses of neonicotinoids on crops that bees find attractive, such as orchard trees, and prohibited spraying of some crops, such as berries and fruiting vegetables, before or during bloom. Seed treatment uses were found to be acceptable; however, Health Canada required the addition of label statements for all cereal and legume crops to minimize exposure of pollinators to dust during planting of treated seeds. 

Also late last year at the University of Saskatchewan, Sarah Catherine Wood, a doctoral student in the Department of Veterinary Pathology presented a thesis titled Effects of Chronic Neonicotinoid Exposure on Saskatchewan Honey Bees.

She stated:

The objective of this thesis was to provide empirical data with which to balance farmers’ reliance on neonicotinoids for crop protection, and beekeepers’ dependence on healthy honey bee colonies for pollination and honey production.

In her thesis she recognized that neonicotinoids are an effective insecticide important for helping farmers protect canola crops against the ravages of flea beetles. It was estimated that flea beetles cause approximately $300 million a year in damages.

She further set out that bees provide pollination benefits for canola of “up to $4.6 billion”.

Saskatchewan produces about 50% of Canada’s canola and 25% of Canada’s honey.

As a result of research and analysis she recommended not the banning of neonicotinoids but that steps be taken to keep their concentration at below 20 ng/g in Saskatchewan honey.

Having grown up on a farm and through working in our family’s commercial beekeeping operation I am well aware of the importance of honey and canola.

Returning to the book and the Sarnia Seven I condemn a new form of vigilante justice where protests move to criminal actions.

As Arthur gave his closing address to the jury I thought he had perilously neared an invocation to the jury for jury nullification in which the defence invites a jury to ignore the law and find an accused not guilty because they consider a guilty verdict required by law to be unjust. Such a plea cannot be made to a Canadian jury.

While I am a defence counsel I hoped that Deverell would be uncompromising in the verdict by the jury. Martyrs who are found not guilty are no longer sacrifices for the cause. However, few writers of legal fiction can bring themselves to have a verdict that goes against their lawyers.

I believe a real life jury would have considered the evidence and applied the instructions of the judge that there was no defence of necessity.

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Deverell, William - (2011) - A Trial of Passion; (2011) - Snow Job; (2012) - I'll See You in My Dreams; (2012) - "D" is for William Deverell; (2014) - Kill All the Lawyers and The Lawyers of Kill All the Lawyers; (2015) - Sing a Worried Song and Truth is Stranger Than Fiction - Sing a Worried Song; (2018) - Whipped and A Fictional Porcupine Plain; (2021) - Stung