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Trans Mountain Pipeline ULC v. Mivasair - Other

Litigation

Sabin

Sabin Litigation

judgment

Trans Mountain Pipeline ULC v. Mivasair - judgment

Filing Year For Action

A number of people were convicted for acting to stop construction of the Trans Mountain Pipeline expansion in Canada. Two defendants sought leave to raise the common law defense of necessity and for permission to call experts at their trial to discuss climate change and the greenhouse gas consequences of oil sands extraction in Canada. They argued that the pipeline, which is owned by the Government of Canada, constitutes state action threatening citizens' right to a stable climate as protected by Section 7 of the Canadian Charter of Rights and Freedoms. On January 17, 2019, the Supreme Court of British Columbia dismissed the applications. The court concluded that the applicants had not shown that climate change poses an imminent threat as required for the necessity defense.

Following conviction, the activists appealed. The case reached the Court of Appeal for British Columbia (BCCA). On appeal, in a judgment dated Dcember 1st, 2020, the BCCA considered whether the necessity defence should have been permitted. The BCCA rejected arguments based on necessity and constitutional rights, finding that climate change concerns, while significant, did not create a legal justification for breaching court orders. The court noted that the necessity defense requires imminent peril and proportional response, which were not established, and that the Charter claims were framed too broadly to be justiciable. The BCCA concluded that the appellants had reasonable, lawful alternatives, such as public advocacy, lawful protest outside the injunction area, civil litigation, or political and democratic processes. Because a reasonable legal alternative existed, the necessity defence was unavailable. The BCCA therefore dismissed the appeals, and affirmed the convictions.

Subsequent proceedings,  reflected in a long docket history (including many BCSC and BCCA entries between 2019 and 2023, concerned sentencing, multiple contemnor individuals, and enforcement issues. The court imposed escalating sentences over the following years, to deter further breaches, emphasizing the rule of law and the enforceability of court orders.