r v. Daniel, 2021 QCCQ 2377

R. c. Allushi 2021 QCCQ 2377JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OFMONTREAL N° : 500-73-004665-192 DATE: April 1, 2021 BEFORE THEHONOURABLEYVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Daniel ALLUSHI Accused JUDGMENT [1] Mr. Allushi stands charged under ss. 52(1) and 124(1)

a) of the Immigration and Refugee Protection Act (the Act) of returningto Canada without the authorization of an officer after a removal order had been enforced. There is no dispute that the prosecution hasproven all the essential elements of the offence beyond a reasonable doubt. The sole issue in the present case is whether the defence ofnecessity applies. [2] Mr. Allushi was born in Albania. He is presently 34 years old. He first arrived in Canada in 2015 as a stowaway aboard amerchant vessel. He was denied refugee status and was deported to Albania in 2017 after having exhausted all legal remedies.

Hereturned to Canada in 2019, again as a stowaway, aboard a merchant vessel. He did so without prior authorization of an immigrationofficer. His second refugee claim was declared ineligible and further legal remedies were denied. [3] Mr. Allushi was charged in the present file after his Pre-Removal Risk Assessment (PRRA) was rejected. The defencecontends that he should be acquitted because he acted out of necessity when he returned to Canada. The defence primarily relies on thejudgment of the British Colombia Court of Appeal in R. v.

Nwanebu[1], which examined the defence of necessity in the context of animmigration case. [4] Conversely, the prosecution argues that Mr. Allushi did not act out of necessity when he illegally entered Canada without priorauthorization. According to the prosecution, Mr. Allushi has failed to show an air of reality to the defence of necessity. The prosecutionsubmits that two of the three legal requirements for this defence are missing and that the accused should consequently be convicted.

Theprosecution points out that the circumstances of the present case differ substantially from those in Nwanebu. [5] Given the nature of the allegations and defence raised, the Court will first review the applicable principles with respect to thedefence of necessity. The Court will subsequently analyze all the circumstances of the present case in light of these legal principles. I - THE DEFENCE OF NECESSITY: THE PRINCIPLES [6] In Canada, the defence of necessity is recognized as a common law defence. When the requirements are present, it excuses theaccused conduct and allows him to avoid a criminal conviction.

The rationale for the defence of necessity was explained by theSupreme Court in R. v. Latimer. At paragraphs 26 and 27, the Supreme Court held: 26 [..] The leading case on the defence of necessity is Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232. Dickson J.,later C.J., outlined the rationale for the defence at p. 248: It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strictobedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience.

The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they areexcusable. Praise is indeed not bestowed, but pardon is . . . . 27 Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. The

defence, he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well established that the defence of necessity mustbe of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did EdmundDavies L.J., that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v.

Williams,[1971] Ch. 734 (C.A.), at p. 746. (Our emphasis) The three requirements [7] The defence of necessity is subject to the presence of all of the following three elements: (1) a clear and imminent peril ordanger; (2) no reasonable legal alternative to disobeying the law; and (3) proportionality between the harm inflicted and the harmavoided. [2] [8] As regards to the first requirement (“clear and imminent peril or danger”), the Supreme Court held in Latimer, at paragraph 29,that: 29 To begin, there must be an urgent situation of “clear and imminent peril”: Morgentaler v.

The Queen, (SCC), [1976] 1S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable orlikely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminentperil at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry outfor action and make a counsel of patience unreasonable”.

The Perka case, at p. 251, also offers the rationale for this requirement ofimmediate peril: “The requirement . . . tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of perilclearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril. (Our emphasis) [9] With respect to the second requirement (“no reasonable legal alternative to disobeying the law”), the Supreme Court stated atparagraph 30: 30 The second requirement for necessity is that there must be no reasonable legal alternative to disobeying the law.

Perka proposedthese questions, at pp. 251-52: “Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril orprevent the harm, without breaking the law? Was there a legal way out?” (emphasis in original). If there was a reasonable legalalternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of thealternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legalalternative.

If an alternative to breaking the law exists, the defence of necessity on this aspect fails. [10] As far as the third requirement (“proportionality between the harm inflicted and the harm avoided”), the Court held: 31 The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must notbe disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252: No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor toavert a lesser evil.

In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannotcontrol himself we will not excuse him. [11] It must be underlined that the first and second requirements of necessity need to be evaluated on a “modified objectivestandard”. The test is neither strictly objective nor purely subjective.

In Latimer, at paragraphs 32 and 33, the Supreme Court explainedthe meaning, nature and scope of this “modified objective standard”: 32 Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governsnecessity. Is the standard objective or subjective? A subjective test would be met if the person believed he or she was in imminent perilwith no reasonable legal alternative to committing the offence.

Conversely, an objective test would not assess what the accusedbelieved; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test fallssomewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of theparticular accused person.

We conclude that, for two of the three requirements for the necessity defence, the test should be the modifiedobjective test. 33 The first and second requirements - imminent peril and no reasonable legal alternative - must be evaluated on the modified objectivestandard described above. As expressed in Perka, necessity is rooted in an objective standard: “involuntariness is measured on the basisof society’s expectation of appropriate and normal resistance to pressure” (p. 259).

We would add that it is appropriate, in evaluating theaccused’s conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. Theapproach taken in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, is instructive. Speaking for the Court, Lamer C.J. held,at para. 59, that: it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or herability to perceive the existence of alternative courses of action.

While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused,those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe,on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be areasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person’s ability to evaluate his situation.

The test cannot be a subjective one, and the accused who argues that he perceivedimminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given hiscircumstances and attributes. (Our emphasis) [12] As for the third requirement for the defence of necessity, the Supreme Court concluded that it must be measured on anobjective standard[3].

Air of reality [ 13 ] To put the defence of necessity into play, an accused bears the onus of showing that there is an “air of reality” for this defence. To do so, the accused has to show that there is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable doubt about necessity. Once this hurdle is met, the burden falls on the Crown to disprove the defence of necessity beyond a reasonable doubt.

Burden of proof in criminal matters [ 14 ] It must be emphasized that in criminal cases, every person charged with an offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. [ 15 ] In cases where the Court concludes that there is an “air of reality” for a defence of necessity, the burden entirely rests on the Crown to disprove the defence of necessity beyond a reasonable doubt. [ 16 ] I f a reasonable doubt as to the guilt of the accused arises from the evidence, the absence of evidence, the credibility or the reliability of witnesses, the Court must find the accused not guilty. [ 17 ] In the end, the paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. [4] II - ANALYSIS [ 18 ] In his testimony, Mr.

Allushi described his life in Albania before he came to Canada in 2015 and 2019. He explained that he grew up with his family in a small town with four brothers and one sister. He testified that his problems started after his father passed away in 2010. He stated that his older brother was physically and psychologically abusive towards him. Germany (2014-2015) [ 19 ] Mr. Allushi explained that he left for Germany in 2014 as he could no longer stand the situation with his brother. He chose Germany because of its quality of life. He stayed there for a few months and made some friends.

He was denied the right to stay permanently as his problems were considered by the authorities to be “family-related”. As he did not want to move back to Albania, he travelled to the port city of Hamburg and found a ship heading to Canada. He made the trip as a stowaway and arrived in Canada in October 2015. First entry in Canada (2015-2017) [ 20 ] The record shows that Mr. Allushi claimed refugee protection shortly after entering Canada. His claim was heard and rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board.

His appeal to the Refugee Appeal Division (RAD) and all other legal remedies were later denied, including the Pre-Removal Risk Assessment (PRRA) application. [ 21 ] On May 25, 2017, Mr. Allushi was removed from Canada to Albania by the Canadian authorities. It is not disputed that he knew, from that moment on, that he could not return to Canada without prior authorization. Mr. Allushi confirmed this fact in his testimony. Moreover, the deportation order contained a reference to this interdiction. Back to Albania (2017-2018) [ 22 ] Mr.

Allushi testified that when he got back to Albania, he tried to get his share of the land his father had left as an inheritance to the family. When he discovered that it was now being used to cultivate cannabis, he confronted his brother with this fact and learned that he was involved in this illicit activity with other people. Mr. Allushi explained that he disagreed to the land being used for this purpose. He declined his brother’s offer to also get involved in this business. [ 23 ] Mr. Allushi testified that he informed the police about the situation but nothing happened after his complaint.

He said that he also approached local authorities to try to recover his share of the land, but was told that there was nothing they could do. [ 24 ] He testified that he was beaten and threatened by his brother when he learned that he had gone to the police to lay a complaint. He stated that he went to the hospital for the injuries he suffered but was discharged on the same day. He further testified that his brother told him that he had to disappear from Albania if he wanted to live. [ 25 ] Mr.

Allushi mentioned in his testimony that Albania is a small country with a lot of corruption and few opportunities for ordinary people. He stated that life in Albania was difficult. Although he held several small jobs over time, he testified that ordinary people have no real chance of surviving in Albania. Germany (2018-2019) [ 26 ] In July 2018, Mr. Allushi again left Albania for Germany. He stayed there for a total of approximately 9 months. He did not officially apply to get a status in this country as he knew that it would be impossible to get one.

While he was there, he worked under the table in construction and restaurants. He also travelled to Italy and Switzerland for short periods of time. [ 27 ] In cross-examination, Mr. Allushi acknowledged that there was no danger for his life while he was in Germany. He stated that given his personal situation, he thought that he could not get any permanent or temporary status in that country. He admitted that he did not take any legal action to obtain legal status. [ 28 ] Mr. Allushi acknowledged that he was never told by the German authorities that he had to leave the country.

He also mentioned that he was allowed to stay for a maximum of 3 months at a time before he had to come out and come back.

Illegal return to Canada (2019) [ 29 ] As he did not want to live this way all his life, Mr. Allushi decided he would try to return to Canada. Even though he knew he was not legally allowed to come back, he testified that he “took the risk” to do so. [ 30 ] In cross-examination, Mr. Allushi admitted that he took no steps with Canadian authorities to obtain prior authorization to return. He admitted that he neither asked for a visa nor contacted any immigration officer in this regard.

Moreover, he mentioned that he considered it more convenient to come back to Canada as a stowaway rather than try to do it legally. [ 31 ] Mr. Allushi explained that while he was in Germany, he checked the internet for details about ships going to Canada. Acting on his own, he hatched a plan to board the ship without attracting the attention of crew members and port authorities. Before getting on the boat, he agreed to have a friend join his plan to immigrate illegally to Canada. [ 32 ] They both boarded the ship unnoticed. Their presence on board was only detected a few days after their departure from Germany.

In accordance with international protocols, the ship’s master reported their presence to Canadian authorities without delay. On May 10, 2019, upon their arrival at the port of Bécancour, the two men were turned over to the immigration authorities. [ 33 ] On the day of his arrival, Mr. Allushi’s refugee protection claim was determined to be ineligible pursuant to subsection 100(1) of the Immigration and Refugee Protection Act (the Act ). [ 34 ] He later applied for a Pre-Removal Risk Assessment (PRRA) pursuant to

section 112 of the Act , which was denied on July 24, 2019. No air of reality [ 35 ] On the whole of the evidence, the Court concludes that there is no air of reality to the defence of necessity put forward by Mr. Allushi in the case at bar. While his situation in Albania can be considered hard and difficult, the circumstances of the present case are not such as to give rise to this defence. [ 36 ] As previously mentioned, for this defence to be triggered, the trial judge must be satisfied that there is some evidence to give an air of reality to each of the three legal requirements.

In the present case, after reviewing all the circumstances of the events in conjunction with the modified objective standard, the Court concludes that there is no air of reality with regard to the first and second requirements. [ 37 ] First, in light of all the circumstances, it is obvious that Mr. Allushi was not facing an urgent situation of “clear and imminent peril” when he decided to return illegally to Canada from Germany. Subjectively, Mr. Allushi admitted in cross-examination that he was not facing any danger while he was living in Germany.

Moreover, he acknowledged that he was never required nor asked by the German authorities to leave Germany. He further mentioned that he was allowed to stay in that country for periods of 3 months at a time before coming out and back. [ 38 ] Although Mr. Allushi might have suffered violence and threats from his brother while in Albania, there was no urgent situation of “clear and imminent peril” when he chose to commit the offence of returning to Canada without prior authorization. It must be remembered that Mr. Allushi stayed in Germany for 9 months before “taking the risk” to return illegally to Canada.

In light of his own account of events, he made that decision when there was no “clear and imminent peril”. [ 39 ] Second, it is clear from the record that Mr. Allushi knew that he had “ reasonable legal alternatives to disobeying the law” when he committed the offence. In his own testimony, he acknowledged that he took no legal action to obtain permanent or temporary status in Germany or any other country. He admitted that he took no steps to obtain prior authorization to return to Canada from the Canadian authorities. He admitted that he did not ask for a visa and did not contact any immigration officer.

And he testified that he considered it more convenient to come back to Canada as a stowaway rather than try to do it legally. [ 40 ] In light of all the circumstances of the present case, the Court concludes that there is no air of reality with regard to the first and second requirements of the defence of necessity. Given that this defence is not triggered, and considering that all the essential elements of the offence were proven beyond a reasonable doubt, Mr. Allushi is found guilty.

Proof beyond a reasonable doubt [ 41 ] Alternatively, had the Court determined that there was an air of reality to the defence of necessity, it would still have concluded beyond a reasonable doubt that a verdict of guilt should be entered. In view of all of the above, the Court would have concluded that the prosecution proved beyond a reasonable doubt that the defence of necessity does not apply. III - CONCLUSION [ 42 ] For all those reasons, Mr. Allushi is found guilty. _____________________________ YVAN POULIN, J.C.Q.

Me Fariha Prud’homme For the prosecution Me Sharon Sandiford For the accused Dates of hearing: January 25 and February 26, 2021.