No Air Of Reality: The B.C. Court of Appeal, Climate Change, Imminent Peril, and “Moral Choice”

It is clear in Canadian law that three essential requirements must be met to successfully establish the defence of necessity: (1) the accused person must show that at the time they disobeyed the law they were facing an “imminent peril”; and (2) that they had no “lawful alternative” to avoid the peril; and (3) that their act disobeying the law was “involuntary”. The concept of involuntary has a special meaning in the law governing the defence of necessity in Canada. It means “morally involuntary”. All three requirements must be met.

The Court of Appeal decided it did not need to consider the “first requirement”, which addresses whether the evidence could support a finding that we are facing an “imminent peril” caused by climate change. To answer that question, the Court would have been obliged to look carefully at the detailed summary of scientific evidence we presented to the Court.

Instead, the appeal judges decided that Jennifer Nathan and I could not meet the “second requirement” because we could not prove that when we disobeyed the law we had no “lawful alternative” to avoid the peril.

Thirdly, the Court decided that our disobedience of the law, due to the deliberate and planned character of our conduct, was not “involuntary” in the legal sense. Based on its ruling on the second and third requirements, the Court dismissed our appeal.

The Court of Appeal reached its decision without examining the scientific evidence about climate change at all. Only by carefully considering that evidence could the Court have come to any reasoned conclusion about whether climate peril is imminent, or how much time remains for governments to take decisive action to avoid a catastrophic outcome, or whether it is already too late to stay within the 1.5°C warming limit. The Court did not discuss the scientific evidence in its 28-page judgment, other than a brief and incomplete summary in a single paragraph (paragraph 85). I have prepared an Appendix, starting at page 29 of this paper, which discusses the expert evidence and explains the exigency and danger of our situation.