Necessity defence has ‘no air of reality’
VANCOUVER • A pipeline protester’s argument that an act of civil disobedience he committed was necessary to prevent a greater evil has “no air of reality,” a B.C. judge ruled Thursday.
The novel “defence of necessity” had previously been tried by anti-abortion and anti-logging protesters, typically without success. But in the United States, a recent court ruling in Massachusetts breathed new life into the defence when a group of climate protesters was cleared of criminal wrongdoing.
Thursday’s decision in B.C. Supreme Court centred on Tom Sandborn, a veteran social justice, labour and environmental activist, who is one of about 180 protesters arrested recently for blocking the gates at Kinder Morgan’s Trans Mountain expansion project in Burnaby, B.C. He was charged with criminal contempt of court after he allegedly violated a courtordered injunction designed to keep protesters at bay.
This week, Sandborn asked for permission from Judge Kenneth Affleck to argue at his upcoming trial that the blockade was necessary as it served a greater good.
Allowing the transport of “vile, filthy, polluting bitumen” from Alberta to B.C. and to Asian markets, he argued, violated First Nations treaty rights and endangered the environment and public safety.
But Affleck said Thursday the “excuse of necessity has no air of reality in these proceedings” and reminded Sandborn that court orders are a foundation of the rule of law, “without which we could not enjoy our robust democracy.”
Affleck cited a 1984 Supreme Court of Canada decision that said, if the necessity defence is to be allowed, it must be “strictly controlled.” More specifically, a defendant must show there was “no other viable option” but to commit the criminal act and that there was an “imminent risk of an immediate peril.”
Neither of these tests were met by Sandborn, the judge said. Sandborn, for instance, made “no attempt” to seek a variation of the injunction order or to appeal it. Further, Sandborn’s argument that the pipeline expansion constituted crimes against Aboriginal people, other residents and the environment ignored the fact that the work being done by Trans Mountain had been “expressly sanctioned by the responsible authorities.”
“The work is lawful,” the judge said, “and to call it a crime is just a slogan, not an argument.”
The judge also said Sandborn’s argument of an imminent risk of peril from the ongoing use of fossil fuels fell flat because the expansion hadn’t yet been built and could take “months, if not years.”
Sandborn, who chose to represent himself, said he was not surprised by the ruling, likening his application to “swimming upstream against a torrent.”
He said he will consult with advisers about other arguments he might make when his trial rolls around in June, but said he has no regrets about his actions thus far.
“Civil disobedience … means publicly breaking the law in order to awaken the conscience of the state and the conscience of fellow citizens to a horrible crime that’s being committed and then be willing to take the consequences,” he said.
Sandborn isn’t the first activist to try the necessity defence — and fail.
In 2015, an Ontario court heard the case of a woman who had snuck into a Toronto abortion clinic to distribute roses and pamphlets to patients with the aim of having them reconsider their abortions. At the time, Mary Wagner was under a probation order to keep the peace and was barred from entering an abortion clinic.
Wagner testified, however, that human life took precedence over court orders and that she had no option but to break the law to protect unborn human beings. Her necessity defence failed at trial and on appeal.
The defence has seen some success in the U.S., however. In March, a Boston municipal judge stunned courtroom observers when she dismissed charges against a group of activists who had blocked the construction of a natural gas pipeline. According to media reports, 13 protesters, including Al Gore’s daughter, Karenna, were charged with trespass and disturbing the peace, after lying in trenches for the pipeline.
But West Roxbury District Court Judge Mary Ann Driscoll dismissed all the charges after the protesters invoked the necessity defence. The decision “sets a precedent for future defendants to use the same argument,” Vice.com reported at the time.
So far, a handful of the Trans Mountain protesters have pleaded guilty, resulting in fines or community service. The remainder are set for trials scheduled from June through October.
Among those who pleaded guilty this week was Ian Angus, a retired professor. He tried to have his $500 fine reduced to $1 to recognize his “civic, natural and human responsibility” to commit civil disobedience, the National Observer reported. The judge did not allow it.
This week, Vancouver Mayor Gregor Robertson told Bloomberg he doubted the proposed expansion would go ahead because local opposition is intensifying.
The cities of Vancouver and Burnaby, B.C.’s NDP government, multiple First Nations and environmental groups oppose the $7.4-billion expansion project. The project is backed by the federal government and Alberta’s NDP government.