Respondent’s Factum (opens as a PDF in your web browser)
The Respondent’s Factum was filed on May 4, 2020. This 26-page document outlines the Crown’s submissions why Affleck J.’s decision dismissing our application was justified. The Crown says that the judge correctly exercised his discretion to deny our request to raise the necessity defence. The Respondent’s Factum addresses three main issues:
First, the Crown contends that our beliefs about the gravity of the peril of advancing climate change, which motivated our actions in 2018 (our actions to oppose the construction of the Trans Mountain Pipeline), and our understanding of the immediacy and irreversible character of the catastrophic consequences if the expansion of Canada’s oil sands production continues to 2030, are not “objectively reasonable”. In substance, the Respondent’s Factum is saying our subjective beliefs about the seriousness and imminence of climate change impacts are not supported by the available objective evidence about climate science and rising global emissions.
On that important first point, the Crown contends that the trial judge’s inference that there is “a contingency” that serious climate consequences can still be avoided was supported by the evidence. Quoting paragraph 55 of Affleck J’s judgment, the Crown says (at paragraph 50 on p. 6) that it was “open to the trial judge to draw this inference” that “despite a historical lack of initiative to curb emissions over these [past] decades, adaptive societal measures may be taken [in future] to prevent any dire outcome”.
Second, the Crown argues that the defence of necessity can only be successfully raised by an accused where “immediate pressure is placed on a person to act, negating his or her ability to act freely” (paragraphs 46 and 47), so that the act disobeying the law was “involuntary”. The Crown contends that this defence cannot apply in the present case because the appellants “cannot point to a … threat or psychological condition that restricted their agency nor can they establish that the imminent peril caused their “will to be overborne” (paragraph 48). The Crown thus contends that we must show that our mental or psychological capacity to decide whether or not to obey the law was disabled or impaired by the “immediate pressure” of a threatened peril.
On this second point, the trial judge did not address that issue and did not dismiss our application on that ground. Nevertheless, the Crown raises this issue of “involuntary” conduct as another reason that would justify the judge’s decision to dismiss our case. Our answer (see our Reply Factum) is that the law in Canada governing the defence of necessity is not limited solely to situations where the accused’s ability to make a moral choice has been incapacitated, whether by a threat or by a psychological condition. It may also apply where, in face of an imminent peril, a person motivated by altruism makes a conscious and deliberate decision to act to protect others. Third, the Crown says that the defence of necessity can never apply if there are other “lawful alternatives” available to the accused, other than disobeying the law (paragraphs 55 to 59). The Crown contends we had lawful alternatives.