In a 28-page judgment released on September 21, 2020, the Court of Appeal for British Columbia dismissed our appeal from the trial judge, Affleck J., who two years ago rejected our application to be allowed to call expert evidence about climate change at our trial on charges of criminal contempt of court.
We sought to raise the defence of necessity to compel a full evidence-based examination – in a court of law – to answer whether Canada’s planned expansion of oil sands production to 2030, facilitated by the Trans Mountain pipeline, is consistent with Canada’s commitments to meet the internationally agreed goal of keeping further warming below the 1.5°C threshold or at least within the 2°C limit. Our evidence shows that Canada’s projected expansion of oil production cannot be reconciled with those commitments.
Rejecting our appeal, the B.C. Court of Appeal decided that it did not need to consider the evidence about climate change. It declared that even if the evidence we presented to the Court about climate science and emissions proved to be true, our defence would still fail. The Court concluded that the necessity defence cannot succeed because, it said, we had “lawful alternatives” to disobeying the law. One suggested alternative was that we could have continues to “use the democratic process”:
They could have continued to use the democratic process to voice opposition to the Pipeline, raising the emissions issue and placing pressure on government to withdraw its authorization for the project.
The Court also says we could have chosen to “do nothing”. The disappointing loss is the failure of the B.C. Court of Appeal to answer the important question we presented to them in this case. The question is whether we are facing an “imminent peril” caused by global heating, and whether the continuing expansion of oil sands production in Alberta, facilitated by the Trans Mountain pipeline, will materially contribute to escalating loss and suffering across the world. The Court chose not to answer that question.
Our legal case raised serious questions about climate change and carbon emissions, and about ethics and disobeying the law.
The hearing of our appeal was held on Tuesday, July 7, in the B.C. Court of Appeal, in Vancouver. The three-judge panel was Chief Justice Robert Bauman, Justice David Harris, and Justice Joyce DeWitt-Van Oosten. Due to the coronavirus pandemic, the hearing was conducted by Zoom conference, with public access by video link.
At the one-day hearing, between 10 AM and 12:30 PM, I made the oral submission by video link to the Court on behalf of Jennifer Nathan and myself. In the afternoon, Crown Counsel Leslie Ruzicka argued the case for the Prosecution.
At the conclusion, the Court reserved judgment. The Reasons for Judgment were released on September 21, 2020.
Jennifer Nathan and I were convicted a year ago of criminal contempt of court for acting to halt the construction of the Trans Mountain Pipeline expansion. Before the start of our trial, we applied at a two-day hearing on December 3-4, 2018 in the Supreme Court of British Columbia for leave to raise the common law defence of necessity, and for permission to call expert evidence at our trial about climate change and the emissions implications of continuing to expand Canada’s oil sands industry. The presiding judge, Justice Affleck, dismissed our application. Six weeks after the hearing, the judge’s written decision was released. We were convicted at a further hearing on March 11, 2019, and launched our appeal to the Court of Appeal for British Columbia the same day.
In our legal case, we are relying on the common law defence of necessity, which holds that in a situation where there is “a clear and imminent peril”, conduct disobeying the law undertaken by a citizen to avoid a serious peril can be excused from criminal liability.
Our conduct involved peaceful action taken by Jennifer Nathan on March 24, 2018, and by myself on August 20, 2018, to halt or delay the construction of the Trans Mountain Pipeline Project. The new pipeline, if built, will facilitate the continued expansion of Canada’s oil sands production to 2040.
BACKGROUND: A DECADE OF FAILURE
We took the direct action that led to our arrest and contempt charges after many years of lawful political and social activity by each of us, and by tens of thousands of other Canadians (including leading Canadian energy economists and climate scientists) all seeking to persuade our political leaders to reconsider the wisdom of betting Canada’s long-term economic future on further expansion of our oil and gas resources. My Affidavit filed in this case, sworn November 21, 2018, explains in detail our government’s repeated refusals over the crucial period between 2013 and late 2016 to conduct any independent, evidence-based inquiry into the emissions implications of this expansion, and how it became clear that the Government of Canada was adamantly closed to any reconsideration of its plans to expand oil sands production. It also became increasingly clear – as the summary of evidence in our case shows – that the projected expansion of Canada’s oil production to 2040 (and rising production by the world’s other six or seven leading oil suppliers) would be incompatible with any remaining chance we might have to limit the increase in global warming to less than 2°C.
Jennifer Nathan’s Affidavit, also sworn November 21, 2018 and filed in this case, describes her long engagement with these questions going back to 2008. As a science educator and teacher of high-school age students, she describes her recognition that, when the Federal cabinet approved the Order in Council on November 29, 2016 authorizing the construction of the pipeline, Canada by that decision committed itself to oil sands expansion for another twenty years. Canada lost its ability “to contribute to moving the world away from climate tipping points”. The government cast aside our opportunity to achieve deep reductions in Canada’s own emissions and help avoid the worst impacts of climate change. “Tipping points” are the risks of the most fearful and destructive breakdowns in the natural systems as warming exceeds 1.5°C and 2°C.
THE DEFENCE OF NECESSITY: IMMINENT PERIL
To successfully advance the defence of necessity at trial, we must prove that we are facing an imminent peril. To do that, we had to obtain the Court’s permission to call evidence about (i) the present state of global carbon emissions, which are on a path to continue rising to 2030; (ii) evidence from climate scientists showing the consequences for the earth’s climate system if that increase occurs; and (iii) detailed evidence about the planned growth of Canada’s oil and gas sector to 2030 (our country’s largest and fastest growing source of emissions) and why that expansion is going to materially contribute to the advancing climate catastrophe.
To understand the legal process in this case, it is helpful to know that, as persons charged with criminal contempt (for disobeying a court order), we did not have any automatic right to raise the defence of necessity at trial. We were obliged to bring our application seeking “leave” (i.e., permission) to raise the necessity defence and to call relevant evidence needed at the trial to support that defence. In bringing that pre-trial application on December 3, we were bound to outline to the presiding judge the evidence we proposed to call at trial.
Our request to call evidence was dismissed. Our trial judge ruled that, based on his interpretation of the summary of the evidence that we provided to the Court, we cannot prove with a sufficient degree of “certainty” that rising atmospheric temperatures are likely to reach a level that will have a “dire outcome”, the words he used to describe climate change that gravely impacts the natural systems that support human life.
Paragraph 55 of his written Reasons for Judgment is the crux of his decision. Affleck J. finds that despite our summary of the available expert evidence from climate scientists, there remains a chance that countries around the world may yet take “societal measures” sufficient “to prevent such a dire outcome”:
On the evidence the applicants seek to offer, rising temperatures, to a level that is catastrophic to life, is a process that has been happening over many decades. Despite a historical lack of initiative to curb emissions over these same decades, adaptive societal measures may be taken to prevent such a dire outcome. Whether government, private industry, and citizens take these measures is a contingency that takes these changes outside of “virtual certainty” and into the realm of “foreseeable or likely” (Latimer, at para. 29). Thus, it cannot be said that the objective element of the modified objective test is satisfied.— Reason for Judgment, para. 55, p. 3–31
The judge therefore finds that “there is a contingency” that the serious impacts caused by climate change, or at least any dire outcome, can be averted. The judge says that “adaptive societal measures” may be taken in future to prevent a serious outcome. Because he finds such a contingency exists, he concludes that the peril in our case is merely “foreseeable and likely”, but not “virtually certain”. According to the judge, if we cannot show the peril is virtually certain, we cannot invoke the necessity defence.
THE APPEAL CASE
The appeal hearing took place on July 7, 2020.
Our main written argument, the Appellants’ Factum, was filed on November 18, 2018. This document, 30-pages in length, provides in Part 1 (at pages 3-14) a brief outline of the proposed evidence we presented to the trial judge. This includes key findings of multiple studies by climate scientists showing that, based on current policies, the annual level of global carbon emissions is projected to continue increasing over the next eleven years to levels that, once reached, will make it “extremely unlikely” that, after 2030, it will be possible to limit the further increase in the earth’s average surface temperature to less than 2°C.
The Respondent’s Factum, filed by the Attorney General for British Columbia in answer to our case, was filed with the Court on May 4, 2020.
On May 27, 2020, we filed the Appellants’ Reply.
We also filed an Appellants’ Supplementary Factum, which sets out our additional written submissions with respect to recent foreign law decisions that are relevant to the appeal in our case. In particular, the Supreme Court of the Netherlands in Urgenda Foundation v. The State of the Netherlands, on January 13, 2020, upheld a decision by the Hague Appeal Court in 2018 (and the earlier Dutch District Court trial decision in that case in 2015) that climate change is “a real and imminent threat”. The Dutch case was based on a full analysis of expert evidence about climate science and data about the current trend of global emissions, and cites many of the identical sources we have included in our Outline of Proposed Evidence.
Outline of Proposed Evidence
The summary of our proposed evidence, originally filed in the Supreme Court of British Columbia in advance of the December 3, 2018 hearing, is referred to as our Outline of Proposed Evidence (Exhibit “A” to the Affidavit of David Gooderham, sworn on November 21, 2018). This 119-page document is the adjudicative record for the appeal (it constitutes the record of facts that is available to the Court of Appeal to decide this case). In the Outline, we set out in detail the sources of the evidence we sought to call at trial.
The Outline includes a summary of the available expert evidence about the current trend of global emissions. All of the data, based on the multiple sources we cite, shows that the annual level of global emissions is projected to continue increasing to 2030. But the scientific evidence, which we also cite, makes absolutely clear that the annual level of global emissions would have to be massively reduced within the next eleven (11) years to avoid catastrophic warming. The summary shows the magnitude of the deep emissions reductions required by 2030, to give a 66% chance of keeping the future increase in the earth’s average global surface temperature to less than 2°C above the average over the period 1850-1900. It also shows the very much deeper cuts that would be needed by 2030 to limit the warming increase to less than 1.5°C (that would require equivalent to a 50% reduction in the annual level of global emissions below the current level). The evidence on those points is found in Parts 14 – 18 of the Outline.
The focus of our appeal is on the trial judge’s finding that there exists a contingency that “adaptive societal measures” may be taken in future to avoid a serious outcome. The evidence we presented is absolutely clear that the only “societal measures” that could avoid, or even lessen, the catastrophic heating of the earth are immediate and unprecedented cuts in annual global emissions.
In making his finding about the “contingency”, Affleck J. drew an inference that cannot be supported by the evidence contained in the adjudicative record. There is no evidence in the record that even remotely suggests deep cuts in the annual level of global emissions on the scale required could be achieved by 2030. There is no evidence that countries have adopted policies or made commitments to achieve cuts on that scale, or that they intend to adopt policies of that kind. The trial judge’s finding was a speculation, untethered from the evidence presented to him in the courtroom.
The summary of evidence also shows that, in the case of Canada, the planned growth of oil sands production in Alberta to 2030 and 2040 is not compatible with Canada’s promised climate commitments under the 2015 Paris Agreement “to hold the increase in global average temperature to well below 2°C … and to pursue efforts to limit the temperature increase to 1.5°C”. The key evidence on that point is found in Parts 1 – 10 and Part 13 of the Outline, and in Appendices M, N, and O.
PROCEDURAL AND EVIDENTIARY RULES APPLICABLE TO OUR CASE
At our preliminary application on December 2, 2018, for leave to raise the necessity defence, we were not obliged to prove, on a balance of probabilities, that there exists an “imminent peril”. The test we had to meet, in order to be allowed to call the required evidence at a full trial, was simply to demonstrate that (based on the material in the Outline of Proposed Evidence) there is an air of reality (a legal expression) to our belief that advancing climate change is an imminent peril within the meaning of the law, and that our belief is reasonably based on objective evidence (the expert evidence of climate scientists and energy economists).
An “air of reality”
That test, an air of reality, is a relatively low threshold of proof. To meet that test, the judge needed only to be satisfied that our case about the impending threat of advancing climate change is not “frivolous” (that is the term used in one of the leading Canadian cases), and that if the proposed scientific evidence set out in the Outline were to be actually heard at trial – and assuming it was accepted as credible by the trial judge – the trial judge could decide, based on that evidence, that our belief we are facing an “imminent peril” is reasonable.
For the purposes of deciding whether our case had an “air of reality”, Affleck J. was obliged to assume that the summary of facts we presented to the Court in our Outline of Proposed Evidence would be accepted as accurate and credible by a trial judge at a full trial. He was bound to assume, for example, that a trial judge would accept as credible our proposed evidence, based on current policies and the world’s existing dependency on oil, coal, and natural gas consumption, that global emissions are projected to continue increasing to 2030, and will reach an annual level of about 58.9 GtCO2eq by that year (in 2016 the total was 51.9 GtCO2eq); and that the annual level of global emissions would have to be cut 50% by 2030 below what is currently projected, down to a range of 25-35 GtCO2eq, in order to give us a 66% probability of keeping the increase in global warming to less than 1.5°C.
The difference is the emissions “gap”. The size of the gap for 1.5°C is 23 – 33 GtCO2eq.
He was also obliged to accept the accuracy of the scientific evidence we presented that if the emissions gap cannot be reduced at least by 13.4 GtCO2eq by 2030, it is “extremely unlikely that the goal of keeping warming to well below 2°C can still be reached.”
He was also bound, for the purposes of ruling whether our defence of necessity has an “air of reality”, to accept the accuracy of the scientific findings we presented to the Court showing that even if all countries (including Canada) fully implement by 2030 their existing emissions reduction commitments under the 2015 Paris Agreement, the world is currently on a pathway to warming of 3.2°C by 2100. The reductions promised under the Paris Agreement fall far short of what is required.
At the hearing on December 3, 2018, there was no evidence available to Affleck J. to support his inference that the emissions gap can be closed within the next eleven years.
A full trial
Our objective was to be permitted to proceed to a full trial, to allow us to call our proposed evidence about emissions and climate science. At a full trial, the Attorney General of British Columbia would have had an opportunity to call his own expert witnesses, if he could find credible and qualified experts, and present any new evidence (if it exists) in an attempt to prove that an accelerated global effort to rapidly cut the annual level of global emissions – starting immediately – offers a chance that we can close the massive emissions gap by 2030.
The decision by the Court of Appeal on September 21, 2020, has denied us the opportunity to do that.
A final defining feature of our defence is that it is based on expert evidence. In this case, as in other complex litigation that involves highly technical or scientific issues, a judge may not arrive at findings or conclusions of his own, if his own views on matters requiring expert knowledge are unsupported by the scientific evidence that has been presented to the court.
To decide, for example, that there are “societal measures” that could be fully implemented within the next eleven years to avoid grave climate impacts on natural systems and human life, and that those measures are technologically and economically feasible, the judge would need to base his findings on expert evidence that was presented to him in the courtroom. Any purported finding that a package of “measures” on a global scale could cut the annual level of global emissions 50% (or even 25%) below the current level by 2030 would require expertise on matters related to economics, energy, technology, and other issues. A judge, unaided by relevant expert evidence, cannot make that kind of finding. The summary of expert evidence we presented offered no support for his conjectures about societal measures, which he did not even identify.
Additional Court Documents
Three additional documents, which were filed with court on November 22, 2018, provide further details about the background of this case. These documents are all accessible to the public in the court registry:
- Notice of Application & Charter Notice: this 55-page document provides a summary of the proposed evidence and the legal basis of our case;
- Second Affidavit of David Gooderham: sworn November 21, 2018, this document sets out evidence concerning my belief and understanding about the peril of climate change and the emissions implications of expanding oil sands production in Canada;
- Affidavit of Jennifer Nathan: affirmed November 21, 2018, this document describes her background as an educator and high school science teacher who has for many years attempted to advance an understanding of climate change.
Statement before sentencing
I made a statement to the court before sentencing. I have now been sentenced to 28 days in jail.
Jennifer Nathan also made a statement to the court before her sentencing at the conclusion of our trial. Jennifer told the court:
The approval of the Trans Mountain pipeline to facilitate growth of the single largest source of emissions in Canada was a clear choice to knowingly continue on a pathway of doing willful damage just a little while longer. We don’t have a little while longer.
Here is how we summarize our belief and understanding of the situation all of us are now facing:
The warming of the earth is already far advanced. The impacts are already degrading human and natural systems. The losses are irreversible. We know that, if we act to the full extent of our capacities now and during the next twelve years, we have it in our power to halt this unfolding peril and curb the losses. We will not be able to avoid the further losses that will be caused as surface warming increases from the current level of 1°C to 1.5°C, and we probably cannot curb the deepening losses that will occur as warming moves above 1.5°C to 2.0°C. But our opportunity is to at least limit the further loss and peril as warming moves significantly above 2°C. The scientific evidence is clear that the greatest losses and risks to human systems and natural systems will occur as warming approaches and then exceeds the 2°C. That is the immediate peril we can act to avoid.
— Notice of Application, “Factual Basis”, paragraph 80 at page 24
For that reason, we, along with many other people during 2018, acted to block access to the Westridge Marine Terminal, in an attempt to stop or delay the construction of the Trans Mountain expansion project.
In our application on December 3-4, 2018, at the Court House in Vancouver, we applied for leave to call evidence from climate scientists and others expert witnesses, who are qualified to testify on the matters set out in the Outline of Proposed Evidence. The purpose of that was to show that our beliefs are reasonably based on the available scientific evidence, and to show the gravity of the peril.
updated October 23, 2020