Judge rejects ‘necessity defence’ claim
KINDER MORGAN: Protester said committing a ‘smaller’ crime was necessary to prevent the ‘bigger’ crime
The judge hearing the case of protesters arrested at Kinder Morgan’s Trans Mountain Pipeline Expansion Project on Thursday rejected the argument of a protester who claimed he was compelled to disobey a court injunction to prevent a greater crime.
Tom Sandborn, who was arrested at the Burnaby work site March 19 and is accused of criminal contempt of court, applied to be able to use the so-called “defence of necessity” during his trial scheduled for June.
He told the judge that committing a “smaller” crime by violating the injunction was necessary to prevent the “bigger” crime that the pipeline represented.
Sandborn, a professional writer, argued that the pipeline expansion represented a crime to First Nations land claims, a crime against the environment and a crime against the local residents who are threatened by fire-safety risks associated with the work.
But in a ruling released Thursday, B.C. Supreme Court Justice Kenneth Affleck rejected Sandborn’s arguments.
The judge noted that under case law the defence of necessity must be strictly controlled and limited, and only applies in cases where an accused person commits a crime when there is no other viable option, having acted involuntarily.
“The argument that there was no reasonable legal alternative but to disobey the injunction cannot be sustained,” said the judge. “All orders of this court are subject to variation or to appellate review. No attempt was made to seek a variation to the injunction order or to appeal it.”
The injunction applies to all defendants named in Trans Mountain’s action and since no effort was made to challenge it, the disobedience of the court order cannot be excused, said the judge.
“That conclusion alone is fatal to Mr. Sandborn’s application,” he said.
The judge also rejected Sandborn’s claims that the actions of Trans Mountain amounted to crimes against First Nations people and others.
“This submission ignores the fact that the work being done by Trans Mountain has been expressly sanctioned by the responsible authorities. To call it a crime is just a slogan, not an argument,” the judge said.
Sandborn’s argument that there is an imminent risk of direct and immediate peril because every day that goes by while fossil fuels continue to be used puts the earth at greater risk fails because the pipeline has not yet been built, said Affleck.
“It will be many months, if not years, before any oil or diluted bitumen will travel from Alberta to the coast in the intended pipeline,” the judge said.
Affleck said that what seems to have been forgotten is that Canada is a “robust” democracy where governments change their policies when public pressure is brought to bear and governments not infrequently leave office following elections, bringing about change.
“To display public and mass contempt for court orders, which orders in their myriad forms are one of the foundations of the rule of law without which we cannot enjoy our democracy, cannot be reasonably characterized as a necessity that the law excuses,” he said.
The judge also rejected Sandborn’s application to have a jury trial after noting, among other things, that there was a long history of contempt cases being heard by judge alone in B.C.
Outside court, Sandborn said that he was not surprised at the judge’s ruling as Affleck had clearly signalled during the submissions that that would be his position.
However, he said he was not persuaded and still believes that there is an imminent risk and that crimes are being committed against First Nations and others at the work site.
“We already know that people are dying because of climate change every day around the world,” Sandborn said.
Asked why he was self-represented, Sandborn said it’s expensive to have a lawyer and that he was fortunate to have been around “protest politics” since he was a teen and was confident with the legal process.