Judge rejects 'necessity defence' from B.C. climate activists charged in disruptive protests

A climate activist holds up a sign during a protest in Vancouver, B.C., in October 2019.

Two climate activists charged in a series of disruptive protests on Vancouver Island cannot use a "necessity defence" to avoid punishment, a B.C. judge has ruled.

Protesters Howard Breen and Melanie Murray argued in provincial court that the increasingly urgent threat of catastrophic consequences related to climate change should make their alleged criminal behaviour excusable – something that would set a major precedent in the Canadian justice system.

"The defendants raise the defence of necessity on the basis of their assertion that climate change presents an imminent peril to all humanity," Judge Ronald Lamperson wrote in his May 3 decision, which was posted online this week.

"They submit that such peril rendered their otherwise criminal acts morally involuntary and, therefore, excusable under Canadian criminal law."

But the judge also noted the necessity defence is "very limited in its application," and has rarely been successfully invoked – never in relation to protest activity, as far as both the Crown and defence lawyers involved in the case were aware.

Breen faces 11 criminal charges, including six counts of mischief, in connection with protests at the Nanaimo Airport, the Port of Nanaimo, a Royal Bank of Canada branch and several busy roadways. In one instance, he glued his hand to the pavement to block traffic, according to the decision.

Murray faces four criminal charges, including two counts of mischief, related to protests on public roads.

The defendants were trying to increase public awareness about the negative impacts of climate change, and in particular those related to the logging of old-growth forests and the extraction of natural gas, Lamperson wrote.

The judge did not take the protesters' concerns lightly.

"I have no doubt, on the evidence, that climate change constitutes an existential threat to life in Canada and everywhere else in the world," he said. "This fact is established by widely accepted current science and has been recognized by the Supreme Court of Canada."

But the Supreme Court of Canada has also established three tests for mounting a successful necessity defence, and Lamperson found Breen and Murray's case, at minimum, did not meet two of them.

The judge summarized that the necessity defence requires that there was an "imminent peril or danger," that the accused had "no reasonable legal alternative to the course of action" they took, and that there was "proportionality between the harm inflicted and the harm avoided."

While the judge accepted the "grave peril" posed by climate change is "on the verge of transpiring" – and that catastrophes are "virtually certain to occur" unless mitigating actions are taken soon – he did not believe the threat placed such immediate pressure on the defendants that it "negated their ability to act freely."

And while the impacts of climate change are already being felt around the world, the worst consequences could still be avoided should "governments, organizations, private industry and individuals around the globe urgently take necessary action," Lamperson found.

Breen and Murray also argued they had no reasonable alternative to participating in disruptive protests, telling the court that, based on their experience, lawful demonstrations do not tend to bring about positive change on this issue.

It's unclear whether the illegal protests had a meaningful impact either, Lamperson noted.

"The defendants had many choices to make when responding to the peril caused by climate change," the judge wrote, adding that that Breen and Murray "freely exercised choices in a number of ways," including in the location, timing and manner of the protests.

"Whether or not civil disobedience is the most effective way to bring about legislative and policy changes needed to mitigate the worst consequences of climate change, courts in Canada have never applied the defence of necessity to excuse illegal protest activity," Lamperson added.

Given that he found the case failed the first two tests, the judge did not consider the third regarding proportionality.