They Had to Break the Law to Try to Save Humanity (The Tyee, February 12, 2024)
So argued two BC activists in a Nanaimo courtroom. How their ‘necessity defence’ changes legal history and climate protest in Canada. A Tyee special report.
Click to read the full article as originally published on The Tyee.
Just after noon on August 4, 2023, a boisterous gaggle spilled out of the Nanaimo Law Courts. A handful of supporters surrounded climate activists Howard Breen and Melanie Murray and their lawyer Joey Doyle, celebrating after days of legal wrangling with B.C. Crown prosecutors. Final submissions were months away, and a verdict on Breen and Murray’s guilt or innocence won’t be known until at least spring. Yet the activists believe they have already struck a blow for justice.
That moment last summer takes on growing importance as more B.C. activists face prosecution. The legal breakthrough clinched by Breen and Murray could also embolden activists across Canada to ratchet up pressure on governments.
In those four days in a plain provincial courtroom, the judge broke precedent by allowing activists and their lawyer to mount their chosen defence for acts of civil disobedience committed by Breen and Murray: that the peril posed by climate disruption compelled their attention-seeking violations of law.
It’s called a defence of necessity, and it has a long history in the common-law traditions practised in many liberal democracies.
Canadian law has explicitly recognized the necessity defence for over half a century as an excuse for well-intentioned citizens breaking laws when circumstances left them no other choice.
In a 1984 Supreme Court of Canada decision that hinged directly on necessity, then-chief justice Robert George Brian Dickson illustrated defensible law-breaking by imagining a lost alpinist who’s freezing and near death when they stumble upon a mountain cabin. Surely, reasoned Dickson, the alpinist must be forgiven for breaking and entering to save their life.
“At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available,” wrote Dickson.
Forty years of carbon emissions since Dickson conjured his hypothetical alpinist, Breen and Murray say that we are all alpinists — trapped in a storm of our own making. As Breen told the court: “We’re all in jeopardy because of climate inaction.”
Breen and Murray acted up in January 2022 in a series of highway blockades to garner media attention that would broadcast a message to the BC NDP government: Stop the clear cutting of the old-growth forests that excel at soaking up carbon dioxide and thus directly combat the growing threats from hurricanes, heat waves and wildfires.
Breen also faced charges for five more climate actions, such as disrupting log exports from the Port of Nanaimo by securing himself to a log boom with Gorilla Glue (which proved its advertised readiness “for the toughest jobs on planet Earth”). And closing the Nanaimo Airport by painting “Shut down runways to shut down runaway climate extinction” on the tarmac. And sealing the entrance to a branch of RBC, a global financier for fossil fuel developments, using more Gorilla Glue and a chain.
Admitting to breaking laws and pleading to be excused was a long shot with a potentially big payoff. Judges rarely entertain the defence of necessity in cases of civil disobedience. But when activists manage to mount the defence of necessity — the Canadian-first breakthrough that Doyle secured for Breen and Murray in Nanaimo Courtroom 227 — they frequently escape conviction.
What inspired a judge in a small provincial court to hear out this pair of climate activists and, in the process, give them yet another platform to broadcast their message?