A B.C. Supreme Court judge has dismissed the defence of two Trans Mountain pipeline protesters who claimed “necessity” for violating an injunction barring them from blocking access to two Burnaby sites.
Jennifer Nathan and David Gooderham were charged in 2018 with criminal contempt of court.
On March 24, 2018, Nathan was arrested for blocking access to the tank farm on Burnaby Mountain. On Aug. 20, 2018, Gooderham was arrested for blocking access to the Westridge Marine Terminal.
According to a written judgment released on Thursday, Justice Kenneth Affleck wrote that Nathan and Gooderham both raised the defence of “necessity” for violating the injunction.
The defendants argued in their submissions, according to Affleck’s decision, that the threat of global warming was of such dire concern that they had no choice but to block progress on the pipeline project.
“That applicants submit that, once the pipeline had been authorized by the (federal Order in Council) in November 2016, ‘all legitimate and meaningful avenues for Canadian citizens to question and challenge the project had been shut down’,” Affleck wrote. “The ‘extreme gravity’ of the threat posed by global warming beyond 2°C left the applicants with ‘no viable or reasonable legal alternative,’ but to ‘act by attempting to block construction work at the Burnaby Terminal’.”
Affleck wrote that Nathan and Gooderham both submit that “after applying the ‘moral or normatively involuntary’ test, they clearly had ‘no choice.’ They ask: how can it make any difference that the peril which is so stark in its consequences, is authorized by law? Further, the injunction does not ‘authorize the peril’. The peril is the increase of emissions from expanding oil sands production. The pipeline facilitates that expansion.”
But Affleck did not agree that the environmental threats listed by the defendants managed to meet the test of “necessity” for violating the injunction.
“In my opinion a ‘clear and imminent peril’, as that phrase has been employed in the authorities by which I am bound, cannot be demonstrated,” he wrote.
“The applicants seek a declaration that they, along with all Canadians, have a fundamental right to a climate system capable of sustaining human life which right is protected by s. 7 of the Charter, and they submit these contempt proceedings are contrary to s. 7 of the Charter and ought to be stayed pursuant to s. 24(1). The approach taken by the applicants is misconceived. These contempt proceedings deal with a narrow question, namely: are those persons charged with criminal contempt of court for defiance of the injunction guilty or not guilty? The applicants ask me to expand that narrow question into a vastly more complex group of questions concerning the role government action plays, and the role it should play, in relation to the transport of petroleum products and their impact on climate change?”
Affleck also referred to previous reasons for judgment connected to the case, writing that “nobody is entitled to pick and choose the laws or the court orders they will obey.”
Affleck has dismissed the applications.
