Kinder Morgan protester argues that 'defence of necessity' excused court defiance

Keith Fraser

One of the protesters arrested at Kinder Morgan’s Trans Mountain pipeline expansion project argued Wednesday that it was necessary for him to act to prevent what he called a bigger crime from being committed.

Tom Sandborn, who was taken into custody after allegedly violating a court-ordered injunction at the company’s Burnaby work site and faces a criminal contempt of court charge, said he wants to be able to use the defence of necessity at his upcoming trial.

He told B.C. Supreme Court Justice Kenneth Affleck that the project amounted to what he called “serious crimes” against First Nations treaty rights, the environment and the safety of nearby residents.

“The crime that was being conducted by the (Canadian) state and by Kinder Morgan was a major crime and we were justified in intervening to try to stop them,” said Sandborn.

“Allowing the massive increase in the shipment of vile, filthy, polluting bitumen across B.C. and into the waters around B.C. represents criminal negligence, represents a decision that could lead to a collapse of our civilization and horrible consequences for our children and our grandchildren.”


Sandborn, who said he intends to call several what he called “experts” at his trial, also argued that there were “very real” safety concerns for the surrounding neighbourhood and cited a report from a deputy chief of the Burnaby fire department that outlines risks posed by a fire.

The judge told Sandborn that he and others involved in the protests must appreciate that when they come before the court, the judge doesn’t have an unfettered right to do whatever he wishes.

He said that he was bound by the laws of the land and the difficulty with the argument that crimes were committed at the Kinder Morgan site is that the pipeline work was authorized by the agencies, including the government, that have the authority to approve the project. He said that he would give his ruling on Sandborn’s application on Thursday morning.

“For a judge of this court to say that notwithstanding those works have been authorized nonetheless they constitute a crime would be clearly inconsistent with the law of this country and the law that binds judges who have to apply it.”

Crown counsel Trevor Shaw, who is handling the criminal contempt prosecutions, told the judge that the defence of necessity requires that an individual take actions that are involuntary.

“I say that there’s no involuntariness here. The individuals involved knew full well what they were doing and they did so in the context of not meeting other aspects of the defence of necessity.”

Shaw said that one of the prominent findings in other injunction cases is that there is always the option for protesters to seek to lift or cancel the injunction or appeal the decisions to a higher court.

“So many of the protest cases fail on that ground,” he said.

The prosecutor said that the defence of necessity also only applies in circumstances where there is an imminent risk, where the action is taken to avoid a direct or immediate peril.

He said that even if the deputy fire chief’s report is accepted, it only talks about a risk or a potential fire.

“And similarly the arguments that relate to climate emissions or tanker accidents are not on the verge of transpiring and virtually certain to occur.”

Shaw pointed out that the defence of necessity had never before succeeded in being allowed at an environmental activism trial. Regarding Indigenous issues, he said that they are not relevant to the contempt of court issues before the court.

The judge pointed out to Sandborn that none of the available legal avenues — including appealing the court injunction — had been taken before some people decided to disobey the court order.

About 175 people have been arrested at the site so far and accused of criminal contempt of court. A small number of them have pleaded guilty to date. Trials for the remaining defendants have been set for this summer and fall.

[Editor - Here is a slightly different version of this story by the same writer:]

The judge hearing the case of protesters arrested at Kinder Morgan’s Trans Mountain Pipeline Expansion Project on Thursday rejected the argument of a protester who claimed he was compelled to disobey a court injunction to prevent a greater crime.

Tom Sandborn, who was arrested at the Burnaby work site March 19 and is accused of criminal contempt of court, applied to be able to use the so-called “defence of necessity” during his trial scheduled for June.

He told the judge that committing a “smaller” crime by violating the injunction was necessary to prevent the “bigger” crime that the pipeline represented.

Sandborn, a professional writer, argued that the pipeline expansion represented a crime to First Nations land claims, a crime against the environment and a crime against the local residents who are threatened by fire-safety risks associated with the work.

But in a ruling released Thursday, B.C. Supreme Court Justice Kenneth Affleck rejected Sandborn’s arguments.

The judge noted that under case law the defence of necessity must be strictly controlled and limited, and only applies in cases where an accused person commits a crime when there is no other viable option, having acted involuntarily.

“The argument that there was no reasonable legal alternative but to disobey the injunction cannot be sustained,” said the judge. “All orders of this court are subject to variation or to appellate review. No attempt was made to seek a variation to the injunction order or to appeal it.”

The injunction applies to all defendants named in Trans Mountain’s action and since no effort was made to challenge it, the disobedience of the court order cannot be excused, said the judge.

“That conclusion alone is fatal to Mr. Sandborn’s application,” he said.

The judge also rejected Sandborn’s claims that the actions of Trans Mountain amounted to crimes against First Nations people and others.

“This submission ignores the fact that the work being done by Trans Mountain has been expressly sanctioned by the responsible authorities. To call it a crime is just a slogan, not an argument,” the judge said.

Sandborn’s argument that there is an imminent risk of direct and immediate peril because every day that goes by while fossil fuels continue to be used puts the earth at greater risk fails because the pipeline has not yet been built, said Affleck.

“It will be many months, if not years, before any oil or diluted bitumen will travel from Alberta to the coast in the intended pipeline,” the judge said.

Affleck said that what seems to have been forgotten is that Canada is a “robust” democracy where governments change their policies when public pressure is brought to bear and governments not infrequently leave office following elections, bringing about change.

“To display public and mass contempt for court orders, which orders in their myriad forms are one of the foundations of the rule of law without which we cannot enjoy our democracy, cannot be reasonably characterized as a necessity that the law excuses,” he said.

The judge also rejected Sandborn’s application to have a jury trial after noting, among other things, that there was a long history of contempt cases being heard by judge alone in B.C.

Outside court, Sandborn said that he was not surprised at the judge’s ruling as Affleck had clearly signalled during the submissions that that would be his position.

However, he said he was not persuaded and still believes that there is an imminent risk and that crimes are being committed against First Nations and others at the work site.

“We already know that people are dying because of climate change every day around the world,” Sandborn said.

Asked why he was self-represented, Sandborn said it’s expensive to have a lawyer and that he was fortunate to have been around “protest politics” since he was a teen and was confident with the legal process.