Appellants’ Reply (opens as a PDF in your browser)
We filed our reply factum on May 27. It is a short document, less than eight pages.
Our main argument is set out in the Appellants Factum, filed on November 18, 2019. It provides a detailed outline of the evidence that we presented to the trial judge at our original December 2018 hearing, including data showing that the annual level of global oil consumption is currently projected to continue increasing to 2040; showing the significant contribution of Canada’s expanding oil sands production to that global growth; and the findings of climate science that this continued growth of oil consumption is inconsistent with curbing the ongoing warming of the earth’s atmosphere.
The purpose of the Reply Factum is more limited. It responds to a number of specific new issues that were raised by the Crown in the Respondent’s Factum filed on May 4, 2020. We also respond to one important point about the significance and meaning of the expert evidence we presented to the trial judge about the scale of the very deep emissions cuts required within the next eleven years.
In our Reply at paragraphs 1- 4, we answer a claim by the Crown that the evidence we presented at the December 2018 hearing about “mitigation scenarios” provided the trial judge with some basis to draw his inference that a “dire outcome” caused by climate change can be avoided. Mitigation scenarios offer no evidence about the feasibility of achieving needed future emissions reductions, and offer no evidence about the intentions of other countries to implement policies that might achieve future reductions. The trial judge could not have properly relied on the mitigation scenario evidence to support his ruling.
Next, at paragraph 5, we address the question of the meaning of “lawful alternative” in the context of the necessity defence. The Crown’s position is that other alternatives (“lawful alternatives”) were available to us apart from peacefully blocking construction activity at the Burnaby Terminus of the Trans Mountain pipeline. The Crown says there was no necessity for us to disobey the law.
Our response is that, in the law of Canada, the meaning of “lawful alternative” is an option that offers a reasonable chance of avoiding the peril (which in this case is the peril of advancing climate change). By the time of our actions that disobeyed the law in 2018, it was our belief based on the available objective scientific evidence that as a result of the repeated delays / failures by virtually all major emitting countries (including by Canada) to implement substantial and effective carbon reduction measures over the past decade, it was by then already too late to avoid atmospheric warming exceeding 1.5°C and that there was no reasonable likelihood that the heating of the earth can be kept to within the 2°C limit. Accordingly, by the spring and summer of 2018 no lawful option remained to dissuade government and industry in Canada from proceeding with this key infrastructure project, which was explicitly approved to facilitate the growth of oil sands production in Canada to 2040.
In the context of pursuing “lawful alternatives” to avoid the climate peril, our Affidavits sworn November 22, 2018 recount in detail the engagement and attempts by Jennifer Nathan since at least 2008 to educate and engage public understanding about the rapidly advancing climate impacts. My Affidavit details my own attempts since late 2013 to persuade the Canadian government to undertake an inquiry to assess whether the planned expansion of Canada’s oil sands production to 2040 could be compatible with our government’s own commitments to limit warming to 2°C. We both were fully engaged in “lawful activities” for many years. We disobeyed the law in 2018, when it had become clear that government and industry in Canada were intent on expanding oil production to 2040; when construction of the pipeline infrastructure was already commencing; and when it had become clear that we had run out of time.
“Voluntary” conduct and moral choice
Paragraphs 6 -16 (pages 3 to 6 of the Reply) address the question of “involuntary” conduct.
To begin, at paragraphs 6 – 9 of our Reply we briefly summarize the position taken by the Crown, which is that the necessity defence can only be invoked where threats of future harm place “immediate pressure” on a person “negating his or her ability to act freely” – so that the person is incapable of making a moral choice.
Our view of the law is different. In paragraphs 10 – 14, we say the defence of necessity would apply to a situation where a person makes a conscious decision to disobey the law, in circumstances where obeying the law would prevent her from acting to avoid (or mitigate) an imminent peril that will cause death, or unspeakable loss and suffering. In such a case, the person is indeed capable of making a moral choice. But in such an exigent case, choosing to obey the law – that is, choosing to do nothing to avoid the peril and thereby acquiescing in or facilitating the death and suffering – is not something that a liberal and humane society would countenance.
In our view of the law, the answer is that acting to disobey the law in such a case is not a “true choice” – because obeying the law and acquiescing in the ensuing death and loss is so contrary to our most deeply held values. Disobeying the law in that kind of situation is not a moral choice. It is not within the range of choices that a decent human being, if fully informed of the impending threat, would regard as a choice.
In his judgment in Perka v.The Queen, Justice Dickson used the hypothetical example of a “lost alpinist” who, on point of freezing to death, breaks in to mountain cabin to save is own life:
The lost alpinist … is not literally behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a “voluntary” one. His “choice” to break the law is no true choice at all: it is remorselessly compelled by human instincts.
Justice Dickson further stated that the necessity defence recognizes that “a liberal and humane criminal law cannot hold a person to the strict obedience of the laws in emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience”.
Accordingly, our submission is that in an emergency situation the defence can apply to a person acting out of altruism or compassion who disobeys the law to prevent terrible loss and harm to others, in circumstances where no lawful alternative is available to avoid that harm, or limit its severity.
“Emergency” and the Carbon Pricing Reference Cases
The Crown refers to a recent decision May 3, 2019 by the Saskatchewan Court of Appeal, in which the Court addressed whether the Government of Canada’s Greenhouse Gas Pollution Pricing Act is constitutional, that is, whether the Federal government has the power to impose a minimum carbon price on activities in the various provinces.
The Crown points to the fact that the Saskatchewan Court ruled that the constitutionality of the carbon price legislation cannot be supported by the “emergency” power that the Federal Government has under section 91 (although the Court concluded that the carbon price legislation does fall within the scope of another branch of Federal power and is therefore constitutional). The question, however, is whether the Saskatchewan Court’s views about the applicability of the “emergency” power has any bearing on our appeal.
At paragraphs 17 – 21 (pages 6-8) of our Reply, we explain why the Saskatchewan decision has no relevance to our appeal. Based on a long line of previous judicial decisions, the “emergency” power can only be relied upon to uphold legislation that is enacted by the Federal government to deal with a “short run” problem that is expected to be of “limited duration”. The Saskatchewan court has concluded that, in the case of climate change and given the avowed purpose of carbon pricing legislation, it is clear that the new Federal law will have to operate over an ”indefinite or long-term time frame”. It is not a law aimed to deal with a temporary problem, and for that reason cannot be justified under the “emergency” power. The decision was determined by how the word “emergency” is defined in Canadian constitutional law. The Saskatchewan case does not say climate change is not an imminent peril. It does not rule that carbon pricing is an adequate policy, or that it will significantly curb Canada’s own emissions. It merely finds that, given the evidence provided the Court, the need to control carbon emissions will be “indefinite”.