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KembaraXtra-Case Law-Cichon v OPP (1994) OBD
Case: Cichon v OPP (1994) OBD
Key Issue: Availability of the defence of necessity when a law is broken to prevent harm to an animal.
Factual Summary:
Case: Cichon v OPP (1994) OBD
Key Issue: Availability of the defence of necessity when a law is broken to prevent harm to an animal.
Factual Summary:
- The defendant (D) took a pit bull terrier into a public place without a muzzle.
- D's justification for this action was that the dog had kennel cough, and he believed it would be cruel to muzzle a dog that was coughing.
- D was subsequently convicted of an offence under the Dangerous Dogs Act 1991.
- D attempted to rely on the defence of necessity, but this defence was denied.
- Distinction between Duress and Necessity: The court highlighted a crucial distinction between the defences of duress and necessity:
- Duress: Involves a situation where the defendant's will is overborne by threats.
- Necessity: Involves situations where the defendant's freely adopted conduct is justified by the circumstances.
- Availability of Necessity for Animal Welfare: The central question before the court was whether the defence of necessity could be invoked when the defendant broke the law specifically to avoid serious harm to an animal.
- Purpose of the Dangerous Dogs Act 1991: The Act was legislated with a clear primary purpose:
- Protection of the Public: The statute's objective was to safeguard the public from the potential dangers posed by certain breeds of dogs.
- Statutory Exclusion of Necessity: The court determined that the Dangerous Dogs Act 1991 itself implicitly or explicitly denied the defence of necessity in this context.
- The Act did not permit individuals to make a subjective "value judgment" that prioritised the welfare of the dog (avoiding cruelty from a muzzle) over the safety and well-being of the public.
- Therefore, the statutory framework superseded any common law defence of necessity that might otherwise have been considered.
- The defence of necessity was not available to the defendant.
- The conviction under the Dangerous Dogs Act 1991 was upheld.
- Understand the fundamental difference between the defences of duress and necessity.
- Recognise that statutory offences, particularly those designed for public safety, may expressly or implicitly exclude common law defences like necessity.
- Be aware that the courts will scrutinise the underlying purpose and wording of legislation when considering the applicability of defences.
- The defence of necessity is not a general licence to break the law,
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