Sunday February 05, 2017

Should you be allowed to break the law to fight climate change?

About a dozen demonstrators blocked the tracks at a Burlington Northern Santa Fe yard in Burlington, Washington in 2014, to protest the shipment of oil and coal. Five of the protesters faced trespassing charges for the blockade, and attempted to argue that they did it our of necessity, to halt the imminent threat of climate change.

About a dozen demonstrators blocked the tracks at a Burlington Northern Santa Fe yard in Burlington, Washington in 2014, to protest the shipment of oil and coal. Five of the protesters faced trespassing charges for the blockade, and attempted to argue that they did it our of necessity, to halt the imminent threat of climate change. (The Associated Press)

Listen 9:11

I had to vandalize the pipeline. It was necessary to prevent the imminent threat of climate change. 

That's the type of argument some climate activists have been trying to use in U.S. courts lately. It's called the necessity defence, and it allows you to argue that in an effort to avoid an emergency, you had no choice but to commit a crime. 

The necessity defence is a legal strategy, that a person will use... when they engage either in an act of protest, or when they break a law but contend that the issue they are...protesting, actually has with it a greater amount of damage to society than would be caused just by breaking that law." - Heidi Boghosian, civil liberties attorney in New York 

Generally, the scenario lends itself to the imminent: for example, a criminal who fled a prison on fire, could argue that he or she had to break the law and escape in order to stay alive. 

But in the United States, activists who feel the government is not addressing a social issue sometimes use it as a way to bring attention to that same issue. 

"The necessity defence is a legal strategy, that a person will use when they engage either in an act of protest, or when they break a law but contend that the issue they are bringing to the public fore, or protesting, actually has with it a greater amount of damage to society than would be caused just by breaking that law," says New York civil liberties attorney Heidi Boghosian

"So we've seen this defence used over hundreds of years, actually, but in the United States we've seen it used by activists during the Vietnam War, during anti-nuclear demonstrations, to protest giving money to Central America, and most recently we've see it a lot in environmental cases."

It's not easy to use the necessity defence. Lawyers must get permission from the judge to even attempt to argue it, and they usually fail. 

Ken Ward sabotage selfie

Climate activist Ken Ward, as he shuts off a pipeline valve in Washington State in October 2016. He was one of five people who broke onto private property to shut off valves as part of a coordinated action that day. (shutitdown.today)

This past week, for example, Oregon's Ken Ward and his legal team were denied the opportunity to use it while fighting his charges for breaking onto Kinder Morgan property and shutting off a pipeline valve. But last year, a group charged after blockading a rail line and its coal and oil shipments, were allowed a few days to try and argue a necessity defence. They ultimately failed, but only after they put a climate scientist on the stand and were able to start some public discussion about climate change. 

Does it happen here? 

Canadian law allows for a necessity defence too, but in a much more limited way. 

Like in the United States, the defence is intended to be used in cases of emergency — the prisoner fleeing fire, for example, or speeding to the hospital to get an injured passenger there in time — but a pair of decades old rulings from the Supreme Court of Canada give further guidance to just what does, and doesn't count as necessity. 

Lisa Silver, who teaches law at the University of Calgary, explains: "First there's the requirement of imminent peril or danger. Second, the accused must have no reasonable legal alternative to breaking the law. Then there's a third element, there must be proportionality between the harm inflicted and the harm avoided."

Two Supreme Court rulings led to the Canadian tests for necessity: Perka and Latimer.

In Perka, drug smugglers sailing from Colombia to Alaska were forced ashore on Vancouver Island during a storm. To avoid capsize, they got themselves, and their marijuana, out of their boat - and were caught and charged with importation. They were allowed to attempt a necessity defence, arguing that they had no choice but come ashore, or they world drown. Ultimately, the defence failed. 

In Latimer, Robert Latimer wanted to argue that he had to kill his daughter Tracy, to avoid a scheduled surgery that was going to cause her pain. He was not allowed to mount such a defence. 

Given those guidelines, says Lisa Dufraimont, a professor at Osgoode Hall Law School, it's unlikely environmental activists would try, let alone succeed, in launching a necessity defence in Canada. 

"It's hard, I think, to see a slow moving environmental and social problem like climate change really fit into the category of an urgent situation of imminent peril. Speeding to take an injured person to the hospital, running away from a prison on fire, those are the kind of things that could be considered an urgent situation of imminent peril. It would really require quite an extension of the law in Canada to be able to apply that to climate change as an emergency. Which is not to say that there might not be something to the idea that we do face an urgent problem with climate change, it's just the sort of timing of the urgency. The imminence of it probably doesn't meet the legal test for necessity."

"Speeding to take an injured person to the hospital, running away from a prison on fire, those are the kind of things that could be considered an urgent situation of imminent peril. It would really require quite an extension of the law in Canada to be able to apply that to climate change as an emergency." - Lisa Dufraimont, Professor, Osgoode Hall Law School

Meanwhile, back to U.S.

It's been a busy few weeks of protest since Donald Trump became President, and because of that, Heidi Boghosian expects to see more attempts at necessity defences in her country.

"There's no doubt that we'll see, increasingly, the use of creative strategies in the courts, as we come into a climate of politics that is disfavourable to people's and individual's rights."  

Just because there are more attempts, doesn't mean they'll succeed, or that they'll lead to an expanded definition of the necessity. But keep an eye on American courts to find out.