Case Name: Trans Mountain Pipeline ULC v. Mivasair

Jurisdiction: Canada

Type of Claim: Criminal trial against climate activists and protesters for public disobedience of an injunction

Summary of Result: Applications dismissed; accused convicted.

Judgment final: Yes

Court Instances:

Court	Type of Decision	Summary of Decision
Supreme Court Judgement of 17 Jan 2019 2019 BCSC 50	First instance decision   Protestors facing criminal charges (criminal contempt) ask the court for an order that would allow them to rely on a defence at trial that their actions were necessary to protect their Charter right to life, liberty and security of the person	Applications dismissed; the accused were convicted at trial;
Court of Appeals Judgement of 21 Sept 2020 2020 BCCA 255	Appeal decision	Appeals dismissed; convictions remain.

Source of Claims: 

Constitutional Rights: s. 7 of the Canadian Charter of Rights and Freedoms

Common Law Rights: Defence of Necessity

 

SUMMARY OF JUDGEMENT

Facts

A group of individuals knowingly and publicly disobeyed a court order, known as an injunction, that prohibited people from impeding access to work sites used by Trans Mountain Pipeline ULC (“Trans Mountain”) to expand a pipeline that transports petroleum products (“the Pipeline”). They were charged with criminal contempt of court for public disobedience of an injunction. In the course of their trial, the individuals (the “applicants”) applied to the BCSC to challenge their charges by seeking 1) a declaration that the government’s approval to expand the Pipeline violated their section 7 right to life, liberty and security of the person (constitutional remedies), and 2) to raise a defence that their actions were necessary (defence of necessity) to protect their Charter right to life, liberty and security of the person.

The trial judge dealt with this application for constitutional remedies and to bring the defence of necessity in a separate judgment, which was then appealed to the Court of Appeal. The subsequent summary only concerns this separate judgment and appeal. The trial judge subsequently proceeded with the criminal trial, in which the accused were found guilty.

The trial judge dismissed the accused’s application for constitutional remedies. That aspect of his decision is not under appeal. The trial judge also denied the opportunity to raise the defence of necessity. The individuals (the “appellants”) appealed the trial judge’s determination that the defence of necessity was not available to  the BCCA and sought a new trial.

Claims of the Parties

Charter Claims:

At trial the applicants argued that the expansion of the pipeline, now owned by the Government of Canada, is a state action that puts citizens’ rights to a stable climate capable of sustaining life at risk. Section 7 of the Charter states that everyone has the right to life, liberty and security of the person. The applicants argued that the fundamental right to a climate system capable of sustaining human life is protected by section 7.[1] Therefore, according to the applicants, the criminal contempt proceedings against them are contrary to section 7 of the Charter and should be stayed.[2]

Necessity Claims:

On appeal, in support of the necessity defence, the appellants proposed to call expert scientific evidence showing that an expanded Trans Mountain Pipeline will facilitate the continued growth of oil sands production in Alberta. In turn, that growth will cause a substantial rise in the annual level of Canada’s greenhouse gas emissions. The increase in annual emissions will prevent Canada from meeting its commitments to reduce emissions under the Paris Agreement (2015). It will also exacerbate an already dire global situation of rapid warming that will cause the earth’s surface temperature to increase more than 2°C unless there are massive and immediate cuts to emissions.[3]

The appellants submitted that they believe that global warming will result in dire consequences for the natural environment and human life. An expanded Pipeline would increase Canada’s annual emissions and result in clear and imminent peril to their lives. The appellants also argued that impeding the construction of the Pipeline was the only reasonable alternative available to them in responding to that peril. In some instances, if an individual undertakes criminal actions to avoid clear and imminent peril, and they do not have a reasonable alternative, Canadian law has allowed the individual to rely on the defence of necessity to avoid criminal charges. For these reasons, disobeying the injunction was legally excusable.[4]

First Instance Judgement

The Court found that the approach taken by the applicants was misconceived. The Court held that the criminal contempt proceedings only dealt with the question whether the applicants were guilty or not. The applicants did not argue that their prosecution for contempt of court was a violation of the Charter. Rather, they asked the court to assess the general wisdom of the federal government involvement with the Pipeline and its impact on climate change. The court was not willing to engage in such an assessment.[5]

The Court furthermore rejected the necessity claim on December 4, 2018.[6] The accused were ultimately convicted at trial.

Second Instance Judgement

The applicants appealed the trial judge’s decision. The Court of Appeals’ judgment focused on the applicants’ necessity claim.

 There are three legal requirements to raise the defence of necessity.[7] First, the accused must have an objectively reasonable belief that at the time they defied the injunction, they faced a clear and imminent peril or danger.[8] Second, the accused must have had no reasonable legal alternative to the course of action they undertook.[9] Third, the harm inflicted must be proportional to the harm avoided.[10]

On the second element of the defence, an accused must reasonably believe, at the time of the wrongful act, that they faced a situation of imminent peril that left no reasonable legal alternative to disobeying the law.[11] If there was a reasonable legal alternative to breaking the law, there is no necessity.[12] The undisputed fact is that the appellants did not take steps to vary or challenge the injunction before their arrest.[13] Other alternatives included lobbying the government, civil litigation, protesting outside the prohibited area, leaving altogether or doing nothing.[14]

The second element of the necessity defence requires that there was no reasonable legal alternative available to the appellants because the purpose of the defence is to excuse wrongful conduct when the wrongdoer had no other choice. The court’s view was that allowing a defence of necessity in this case would potentially excuse the appellants from non-compliance with the law on the basis that the Pipeline conflicts with a higher social value and that blocking it was the most effective way to avoid the subjectively perceived peril. The court states that this is not an appropriate use of the defence even if the appellants’ proposed evidence was true.[15]

Moreover, the court found that the appellants’ actions were a planned activity intended to stop the construction of the Pipeline (a lawfully authorized activity). Their actions were closer to constituting a choice than morally involuntary behaviour. The social goal, no matter how altruistic or serious, was irrelevant to this finding.[16]

To claim the defence of necessity, the appellants would have to fulfill all three legal elements outlined above. Since the appellants did not fulfill the second requirement, the court did not consider it necessary to review the first and third requirements.[17]

The court furthermore rejected the appeals from conviction.

 

[1] Supreme Court decision, at paras. 32-34.

[2] Supreme Court decision, at para. 63.

[3] Court of Appeal decision, at para. 4.

[4] Court of Appeal decision, at para. 5.

[5] Supreme Court decision, at para. 64-68.

[6] Supreme Court decision, at para. 53-59.

[7] Court of Appeal decision, at para. 27.

[8] Court of Appeal decision, at para. 114.

[9] Court of Appeal decision, at para. 27.

[10] Court of Appeal decision, at para. 27.

[11] Court of Appeal decision, at para. 72.

[12] Court of Appeal decision, at para. 71.

[13] Court of Appeal decision, at para. 97.

[14] Court of Appeal decision, at para. 102.

[15] Court of Appeal decision, at para. 113.

[16] Court of Appeal decision, at para. 84.

[17] Court of Appeal decision, at paras. 114-115.