Clearly, companies are expected to comply with environmental laws. But there may be some situations in which breaking the law is not only justified—it’s actually necessary to prevent an even greater harm. A company can avoid liability for an environmental offence if it can successfully prove the “defence of necessity.” But proving that committing an environmental violation was a necessity is easier said than done. A recent case from SK illustrates how the necessity defence works and why it’s so hard to prove.
THE CASE
What Happened: Two hunters shot a bull moose. The moose was wounded but not killed. It managed to run through a fence onto private property marked with “No Hunting” signs. The hunters followed the moose onto the property and finished him off. They then field-dressed the carcass and used an ATV to drag it back to their truck. Unfortunately for the hunters, conservation officers spotted them leaving the private property with the moose carcass. After confirming with the property owner that the hunters didn’t have permission to hunt on his property, the government charged the hunters with hunting on signed or posted land without consent.
The hunters admitted that they knew the land was private property and that they didn’t have the owner’s consent to hunt there. But they argued the defence of necessity. They claimed that according to the “2006 Saskatchewan Hunters’ & Trappers’ Guide,” published by SK Environment, it’s a violation to “abandon the edible flesh of a…big game animal” and to injure an animal without making “every reasonable effort to retrieve it.” So the hunters claimed they had to follow the injured moose onto private property because its meat would have spoiled very quickly if the carcass had been left undressed.
What the Court Decided: The SK Provincial Court convicted the hunters.
How the Court Justified the Decision: The court explained that to prove the defence of necessity, the hunters had to prove three elements:
“Clear and imminent peril.” Nothing in the circumstances shows that the hunters were faced with a clear and imminent peril or any peril at all. The court distinguished this situation from another case in which hunters were acquitted of illegally killing a moose because they shot the moose only after it had charged at them, endangering their lives.
No reasonable legal alternative to breaking the law. The court acknowledged that hunters shouldn’t waste game meat and should make every reasonable effort to retrieve an animal they’ve injured. But breaking the law wasn’t the hunters’ only option for fulfilling these obligations. The hunters knew who the property owner was. And they had a cell phone with them. So they could and should have tried to call the property owner and gotten his consent to enter the property to retrieve the moose.
Proportionality between the harm inflicted and the harm avoided. Defendants also have to prove that committing the violation was necessary to prevent an even greater harm. But because the hunters had so clearly failed to prove the first two prongs of the defence of necessity, the court didn’t need to address the this issue [R. v. Eckel, [2007] S.J. No. 361, July 11, 2007].
ANALYSIS
When a company is accused of an environmental offence, it has several defences available, including due diligence, mistake of fact, officially induced error and necessity. Due diligence is usually the easiest defence to prove, while necessity is the hardest. And that distinction in burdens makes sense. After all, the defence of necessity is typically argued in cases where a company has knowingly and deliberately violated the law. So courts should be sceptical and demand a high level of proof when a company argues that it had no choice but to violate the law. Making it too easy to prove necessity would in effect give companies and individuals additional leeway to commit deliberate violations of the law.
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