In other words, the heightened prevalence of extreme weather events such as floods, ice storms, and hurricanes may increase the likelihood that individuals or communities will face imminent perils, resulting in more instances where the defence of necessity could be invoked.
122) The court found that the authorization process was delayed by the obstruction of a civil servant and accepted the defence of necessity on the basis that the municipality's aim was to stop contaminant discharges into the aquatic environment in conformity with the primary purpose of the EQA.
A review of the case law shows no instance where the defence of necessity has been successful in matters related to environmental activism in Canada.
The basis for this additional restriction on the defence of necessity is debatable.
The defence of necessity provides a mechanism to accommodate this tension and fosters the law's adaptation to unforeseen circumstances.
In this context, a tribunal trying "eco-terrorists" for illegal acts committed to protect the environment in circumstances conforming to the defence of necessity will always uphold the rule of law, whatever its decision is: rejecting the defence protects the existing legal order, while accepting the defence fosters the objective implementation of legal rules.
The court declined to rule on the availability of the defence of necessity but noted serious doubts about whether it should have been made available (ibid at paras 7-8, 32).
47) Burleigh Cushing Rodick, The Defence of Necessity in International Law (New York: Columbia University Press, 1928) at 3; Roman Boed, "State of Necessity as a Justification for Internationally Wrongful Conduct" (2000) 3:1 Yale Human Rts & Dev LJ 1 at 4-6.
But this cannot be the essence of the defence of necessity if it is to exist as a distinct and distinguishable defence.