Facing jail over Trans Mountain protest, this lawyer asks court to consider what 'no one wants to talk about'

February 7th 2019

Retired lawyer David Gooderham, 73, may soon cap a distinguished career in law with a 28-day jail sentence for contempt of court for joining protesters who have gathered to block work on the Trans Mountain pipeline.

But he says it’s worth the risk if it gives him a chance to trigger the first-ever court hearing in Canada on the validity of the science of climate change and the implications of federal pipeline policy.

Gooderham and Keegan Pepper-Smith, a lawyer in the B.C. office of Ecojustice, say that a defence of necessity has never succeeded in a Canadian case involving environmental protests. And in this case, Justice Kenneth Affleck of the Supreme Court of British Columbia ultimately dismissed Gooderham’s application to present the defence. In doing so, however, the judge opened a path to the British Columbia Court of Appeal, which Gooderham says is where the case belongs. In an interview in January, he called the appeal court, “the perfect venue for arguing an issue that no one wants to talk about, otherwise.”

Pepper-Smith, who has been monitoring Gooderham’s case on behalf of Ecojustice, agreed. In a telephone interview last week, he said the full implications of building a new Trans Mountain pipeline – thereby tripling the capacity to ship diluted bitumen from Alberta to the sea – has never been fully explored in a public forum. Now, he said, “with governments at various levels deliberately dithering, there is no avenue (for consideration) other than putting these issues before the court.”

But Justice Affleck, the B.C. government prosecutors, Trans Mountain and the federal government (which now owns the pipeline) seem uniformly resistant to airing the issues in court. The provincial Crown summoned senior prosecutor Lesley Ruzicka to argue against the Gooderham application. And in reasons for judgment released on Jan. 17, 2019, Justice Affleck said that he refused to hear the necessity defence in part because he feared his court being “transformed into an inquiry into the wisdom of federal government involvement with the enhancement of the Trans Mountain Pipeline; the extent of and nature of the impact of the petroleum transported through that intended pipeline on climate change, and its potential threat to human life.”

The judge said: “I am not willing to permit this Court’s resources on these trials to be drawn into that controversy.”

‘No better institution than the court’

A spokesperson from Trans Mountain declined to comment, saying only that, “Trans Mountain was not a party to this matter” (regardless that Gooderham was charged with contempt for violating an injunction that Trans Mountain had sought and received from Justice Affleck). And a press secretary for the federal Minister of Natural Resources Amarjeet Sohi offered a five-paragraph commentary on the federal government’s efforts “to ensure a more prosperous future for our kids and grandkids,” but refused to offer any comment on the Gooderham case on the grounds that it is still before the courts.

Though facing a possible penalty of 28 days in jail when his case resumes in March, Gooderham said he is delighted with his progress so far and still determined that the court is an appropriate venue. On the question of climate change and pipeline politics, he said: “Nobody wants to talk about this. But there is no better institution than the court because people have to tell the truth.”

Gooderham seems both the last person who would get involved in this kind of protest and, at the same time, the perfect person to carry it forward. Before retiring in 2012, he spent 35 years at one of Vancouver’s most prestigious law firms – for the last many years specializing in appeals. So, though he is new to environmental protest, courts of appeal are where he feels most at home. They are, he said, “far removed from the anger and disdain” that he perceived in Justice Affleck’s court. At the appeal court level, “There is much more room for reflection.”

Gooderham also stressed that he sincerely feels that climate change and climate politics have brought us to the point where a defense of necessity is relevant and justified. The Supreme Court of Canada, in the 1984 case Perka v. The Queen, defined the defence by giving the example that it would be defensible for a lost hiker, starving and cold, to break into a mountain cabin to save himself. The court said three proofs are
required for the defence to succeed: there must be “imminent peril,” “no reasonable alternative” to breaking the law at the time, and “proportionality between the harm inflicted and the harm avoided.”

When other protesters tried to present the defence last May, Justice Affleck dismissed their efforts and ruled that he would not hear the defence again. But Gooderham said that he still perceived a crack in the door. He hoped that if someone could put together a compelling application, including a comprehensive Outline of Proposed Evidence, that Justice Affleck might relent and at least hear the argument. At that point, even if the judge still rejected the motion, there would be a fully developed statement of the available scientific evidence on the record – a formal public description of the imminent peril we all face.

So, in June 2018, Gooderham started writing, looking to expert sources to describe the risks of climate change and to record, in many cases from the Canadian government’s own reports, how dramatically Canada is overshooting even the most modest targets to rein in our greenhouse gas emissions.

A host of risks

The resulting Outline of Proposed Evidence, at 119 pages, is indeed comprehensive. In it, Gooderham documented actions the government has taken to prevent people from raising climate implications in argument against the construction of new fossil fuel pipelines. He recorded, for example, that the National Energy Board had refused to hear any evidence of greenhouse gas emissions or climate science and that the government’s Upstream Emissions Assessment report showed the new pipeline would have “no impact” if oil or diluted bitumen could be moved by some other method – rail, for example.

Yet, within weeks of the government’s own Ministerial Panel on the Trans Mountain Pipeline saying it was an unanswered question whether “construction of a new Trans Mountain pipeline (could) be reconciled with Canada’s climate change commitments,” the government approved the pipeline and, for good measure, later bought the company.

Even as he amassed his argument, Gooderham realized that he didn’t have an appropriate client. His intention had been to prepare the defence for someone who was already facing a charge before the court. Yet, he couldn’t identify anyone who he thought was appropriate for the role or who was in a position to hire independent legal counsel to manage a trial. (Having retired in 2012, Gooderham can no longer give legal advice or represent someone before the court.) He found himself, midsummer, turning to his wife, Diane, and saying, “If this is going to happen, I’m going to have to do it myself.”

There are a host of risks in getting arrested – not least, in this case, that the court had set a rising scale of penalties for those who violate the injunction and the tariff has reached 28 days in jail. “I also know that once you get arrested, you run the risk of being regarded by most people as an activist,” Gooderham said in an interview. “Your ability to communicate with people is attenuated.” Which is to say, in his expensive West Side Vancouver neighbourhood, lots of people would just stop listening altogether.

Still, Gooderham stepped into the fray on the morning of Aug. 20, 2018, when the haze from summer forest fires was hanging thick in the air over Indian Arm. “I could feel the smoke in my lungs,” recalled Gabriela Doebeli, a University of British Columbia science student who was among two dozen supporters. Doebeli, who knew Gooderham from a climate change group called UBCC350, said she admired his dedication and his nature. “He is a kind man,” she said.

A fool for a client

The scene unfolded in a way that seemed both orderly and well-rehearsed. Doebeli said there were “lots of police – lots,” though none in the hyper-militarized gear that featured in the assault on the Wet’suwet’en blockade of the Coastal GasLink pipeline site near Smithers, B.C. in January 2019.

Gooderham said the police were quiet and respectful, some part of which he attributed to the presence of Doebeli and others, who stood nearby and sang songs of protest and support.

There’s an old saying that a lawyer who represents himself in court has a fool for a client – and Gooderham knows it, so he immediately began looking for counsel. He had seen the defence lawyer Martin Peters assisting protesters facing the same charges, so Gooderham told Peters what he had in mind. The response: “Martin said he thought there was no real prospect of success – which is a correct answer.” Having established a mutual understanding of the uphill nature of the battle ahead, the two men began to prepare the case.

They already had the Outline of Proposed Evidence – and to be clear, this is just that: an outline. If any court ever agrees to hear this defence, Gooderham will then have to call expert witnesses to put the full case on the record in a trial.

Just as Justice Affleck is resistant to this unfolding, Gooderham said he felt that it would be a dream scenario – an opportunity for scientists and policy makers to testify publicly and face cross-examination before a body that demands honesty and applies rules of evidence. Even if he still lost his own case – even if he had to spend a month in jail – Gooderham said that would have made the whole exercise worthwhile.

Gooderham is far from alone

In addition to Gooderham’s outline, the lawyer Peters took the lead on a brief addressing matters of law and Gooderham sat down to write a lengthy affidavit, addressing whether there had been any reasonable alternatives to his drastic and extra-legal actions. This document filled a further 43 pages, setting out every time that Gooderham has spoken up on the implications of expanding oil sands infrastructure. Among his submissions were one to Vancouver city hall, and one to Environment Canada. He appeared before the ministerial panel on the Trans Mountain Pipeline, arguing how badly the pipeline would disrupt any attempt to reach national emission reduction targets. He has written essays and lobbied politicians, including his own Member of Parliament.

In all of these instances, he said, his detailed analyses appear to have been ignored. The government has continued to promote the pipeline project without ever accounting for how it can be reconciled with the promised national carbon budget. After all that, Gooderham said, he really didn’t know what else he could do.

Gooderham is far from alone. In general, he says, his efforts mirror those of thousands of others. He is joined in this case by a co-accused, Jennifer Nathan, a retired high school science teacher who is equally dismayed by what she describes – in her own affidavit – as “the monstrous failure of our political system to prioritize this emergency.”

Nathan continues: “I have never considered civil disobedience as an option before, but no other kind of activity has made any difference. The willingness to forego the world, to take away the options for life for other species and ecosystems is incomprehensible. I felt I had no choice as a concerned citizen but to make a last-ditch gesture in despair ….”

Nathan and Gooderham appeared in court together in December, both represented by Peters, in a hearing focused exclusively on whether the judge would allow a trial to proceed on the defence of necessity. In arguing against Gooderham and Nathan’s application to raise that defence, Crown prosecutor Ruzicka told court “the applicants were not in imminent peril or danger and there were reasonable legal alternatives available.” She said there was no “forensic evidence” to suggest that Gooderham or Nathan were under the kind of direct pressure that would justify breaking the law and that there is no true emergency.

In his reasons for judgment, Justice Affleck clearly accepted prosecutor Ruzicka’s arguments. He said that while the “dire” consequences of climate change are “foreseeable or likely,” they are not yet a “virtual certainty,” so he dismissed the notion of imminent peril.

That, Gooderham said afterward, was “a misapprehension of the evidence that is itself grounds for appeal.” Given the weight of evidence recorded in his outline, “The peril is already upon us.” So, he, Nathan and lawyer Peters are committed to taking the next step.

As a matter of clarity – and in defence of a reputation won in a lifetime of work before the courts - Gooderham said he also wants to challenge the notion that he is guilty of “contempt” for the court system. On the contrary, he said, his intervention reflects the highest regard for what he calls “the genius of the law” to address – and perhaps even solve – the most complicated of issues.

Gooderham and Nathan’s next court appearance – where he anticipates conviction and sentencing – is scheduled for March 11, 2019, after which he said he will file an appeal. That, in turn, is likely to be heard by a three-judge panel of the BC Court of Appeal sometime in early fall.

Richard Littlemore is a former daily newspaper reporter and editor (most recently at the Vancouver Sun), magazine writer, speech writer and consultant. He was founding editor of the climate change website DeSmogBlog.com and co-author of the book Climate Cover-up: The Crusade to Deny Global Warming. (He also was rapporteur and writer for the Ministerial Panel on the Trans Mountain Pipeline that was mentioned in this story.)

[Top photo: retired lawyer David Gooderham among his files on climate change at home in Vancouver, B.C. on Jan. 25, 2019. Photo by Michael Ruffolo]