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DEFENCES - Necessity - Involuntariness

Monday, October 26, 2020 @ 9:21 AM  


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Appeal by Gooderham and Nathan from a conviction for criminal contempt. The appellants participated in a blockade of Trans Mountain Pipeline worksites. Their participation was in knowing disobedience of an injunction prohibiting such conduct. The appellants acknowledged their disobedience in the presence of video cameras and members of the public. They were aware of the terms of the injunction and declined an offer by police to leave the restricted area prior to their arrest. At trial, the appellants sought to raise the defence of necessity. They proposed adducing expert evidence that the Pipeline expansion would increase Canada’s oil sands emissions with clear and imminent perilous environmental impacts. They submitted that the only reasonable response to that peril was impeding construction, with their disobedience of the injunction therefore being legally excusable. The trial judge declined to permit the advancement of the proposed defence due to an absence of an objectively reasonable basis for believing that they faced imminent or unavoidable harm when they disobeyed the injunction. The trial judge also found the appellants could not establish the absence of a reasonable legal alternative to disobeying the injunction. The appellants were convicted and sentenced accordingly. They submitted that the trial judge erred in denying leave to raise the defence of necessity. They sought a new trial to permit a full hearing on the defence.

HELD: Appeal dismissed. Despite the adoption of “reasonable prospect of success” wording, the judge conducted a proper threshold enquiry that functionally found no air of reality to the proposed defence. The advancement of the defence required evidence sufficient to give an air of reality to each of its three requirements. The trial judge’s conclusion that there was no air of reality to the second requirement, an objective belief of imminent peril that left no reasonable alternative to the unlawful conduct, was correct, fatal to the advancement of the defence at trial, and dispositive of the appeal. The appellants did not take any steps to vary or challenge the injunction prior to their arrest. They were aware of other legally compliant avenues to demonstrating their opposition to the project and were given a choice to end their disobedience of the order prior to their arrest. A properly instructed jury, acting judicially, could not infer from the evidence, or have a reasonable doubt, that complying with the injunction was demonstrably impossible.

Trans Mountain Pipeline ULC v. Mivasair, [2020] B.C.J. No. 1475, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., D.C. Harris and J. DeWitt-Van Oosten JJ.A., September 21, 2020. Digest No. TLD-October262020002