- Necessary Decisions
In 2008, the Nigerian police twice arrested twenty-six-year-old Ugochukwu Chinoso Nwanebu. A peaceful activist, Nwanebu was, like other Igbo secessionists, profiled and persecuted by Nigerian police via systematic torture and assassination. The first time that Nwanebu was arrested, he was tortured. The second time, he was tortured and released; however, he was released only so that police could hunt and kill him for sport. Nwanebu managed to escape and find his way to a relative’s home. Knowing that the police would find him if he returned home, his family arranged for him assume his uncle’s identity to travel to Canada for asylum. Nwanebu was given documents that provided the false identity, a cover story for his travels, and the name of a contact in Vancouver—a human rights advocate who could provide legal counsel for his asylum application.
These were the facts that were recorded Nwanebu’s administrative hearing and accepted as the basis of his appeal to the Court of Appeal for British Columbia (BC). Upon his arrival in Canada on January 14, 2009, from a connecting flight from Frankfurt, a Canadian immigration official discerned that Nwanebu was travelling under a false identity. When questioned, Nwanebu clung to his cover story and was not offered an opportunity to make an asylum claim. Nwanebu was detained, issued an exclusion order, and told that he could not return to Canada for a year without written ministerial approval. Later, these offenses would contribute to the denial of his asylum request. In appealing this denial, Nwanebu’s counsel put forth a defense of necessity against immigration offenses with which he was charged. This defense was originally rejected by the trial judge but then accepted by the British Columbia Court of Appeal in October 2014.
It grates to see a refugee raise necessity as a defense for conduct committed while fleeing persecution, in part because it is natural to assume that refugees are acting under imminent threat. The defense of necessity is part of the doctrine of lawful excuse. It excuses wrongful conduct in circumstances when the defendant believes illegality would allow him or her to avoid a greater wrong. If the refugee and necessity at first seem redundant, then there must be something worth exploring there. Over time, I have come to believe that we can better understand the refugee through the defense of necessity. There is nothing in human rights discourse about refugees that explains, in a principled way, why refugees must present evidence of objective threat and subjective fear. Yet the defense of necessity gives reasons as to why objective threat and subjective fear must be presented to the court. Moreover, there is a philosophical justification for aligning them. Kant claims that the defense of necessity is part of the same category of rights as equity, that is, the mercy granted by states in excusing [End Page 539] wrongdoing.1 We can look to Nwanebu to see that the asylum that states offer to refugees and the exculpation they offer to those who successfully invoke the defense of necessity are responses to a common element—morally involuntary conduct.
The trial judge resisted this correlation between refugee status and necessitous conduct. He ruled that Nwanebu was not in imminent danger of harm when he arrived in Canada from Frankfurt and thus could not raise a defense against the charge of misrepresenting his identity. Necessity, as understood by the judge, requires that an agent (a) be under an imminent threat, and (b) have no lawful recourse available to him.
The law requires that defendants raising necessity defenses explain the risk assessment underlying their decisions to break the law with the expectation that they present their subjective experience of imminent threat. The problem for the fact finder was that experience of threat must be attached to an objective threat. The trial judge concluded that necessity requires an experience of imminent threat that was not justified in the Frankfurt airport.
But, subjectively, terror and threat do not always exist concurrently. Judges routinely accept this discontinuity when thinking about subjective experience in the context of lawful excuse. Canadian law treats the issues around necessity, duress...