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 was arrested Aug. 20, 2018 and accused of violating an injunction by blocking access to a Trans Mountain work site in Burnaby, B.C. In interviews with National Observer and in materials presented to the court Dec. 3-4, Gooderham admitted that he sat in the path of workers who were trying to get to the pipeline. But he said he did so expressly for the purpose of trying to present the court with a “defence of necessity.” The defence is allowed in instances of “imminent peril” when, in the words of a 1984 ruling by the Supreme Court of Canada (Perka v. The Queen), an offence can be “justified by the pursuit of some greater good.”

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.”

Retired lawyer David Goodham in the woods near Spanish Banks, a beach in Vancouver. B.C., on Jan. 25, 2019. Photo by Michael Ruffolo

‘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.

"Climate change and climate politics have brought us to the point where a defense of necessity is relevant and justified." - David Gooderham - story by @RLittlemore #TransMountain #bcpoli #cdnpoli #TMX #climatechange #oilsands #pipelines #protests

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.

Women led this march in support of Wet’suwet’en nation on Jan. 8, 2019 in Vancouver, B.C. Rallies were held across Canada to show solidarity. Photo by Michael Ruffolo

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 protest against the Trans Mountain pipeline project on Burnaby Mountain, B.C., the mouth of the Trans Mountain pipeline, in 2018. Photo by Dylan Sunshine Waisman

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.

Retired lawyer David Gooderham at home in Vancouver, B.C. on Jan. 25, 2019. Photo by Michael Ruffolo

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 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.)

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“with governments at various levels deliberately dithering"

Notley's NDP govt in AB is not "deliberately dithering" on climate change. It's full steam ahead!

Notley's oilsands expansion agenda, enabled by new pipelines, will prevent Canada from meeting its targets for decades. No mainstream climate scientist supports Notley's agenda. Notley openly defies IPCC warnings.

No one has done more than Notley to prop up the oil industry and sabotage Canada's climate efforts.
No one has done more to fuel pipeline hysteria than Notley. The same hysteria that's going to sweep the AB NDP away in 2019.
No one has done more than Premier Notley to undermine provincial and federal climate policy. Notley sabotaged her carbon tax policy from the outset by linking it to new pipelines and oilsands expansion.
Notley further undermined NDP credibility on climate by hinging her support for a federal carbon tax in exchange for pipelines.
In recent months, Notley has been granting all sorts of carbon tax exemptions and tax holidays to the oil & gas industry. Not to mention the billions of dollars in subsidies she's been throwing at the fossil fuel industry.

One scientific study after another shows that AB oil & gas industry emissions are grossly under-reported.
The oilsands emissions cap – at 43% above 2015 levels – is not remotely compatible with Canada's climate targets.
AB's 100+ Mt oilsands emissions cap represents more than two thirds of Canada's 2050 target (150 Mt). How could that possibly work?
Total oilsands emissions including projects that are under construction, have received approval, or are seeking approval "blow well past" AB's fraudulent cap. (Pembina Institute)
Notley is going to leave office without regulations in place to determine how its "hard cap" on oilsands emissions will work. The cap is one of the top items on Kenney's hitlist. AB's "hard cap" on oilsands emissions was a scam. Notley never had any intention of implementing it. She knew from the start that the cap would not outlive her govt.

A vote for Notley's NDP is a vote for Big Oil's agenda. And a vote against your grandchildren.

"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."

Uninformed nonsense. Disaster is already upon us.
We've lost half our Arctic ice, coral reefs, and kelp beds in mere decades.

Albertans and British Columbians got smoked out by wildfires in 2018. 70 heat-related deaths in Montreal in July 2018. Flooding from Calgary to Toronto. Coastal erosion and loss of ice roads and infrastructure in the North. Pine beetles devastating forests in BC and AB. The list of impacts goes on and on.

Wildlife in the headlines:
• It's already happening: Hundreds of animals, plants locally extinct due to climate change
• Warming Planet Pushing Species Out of Habitats Quicker Than Expected
• Melting Arctic ice threatens ‘entire marine food web:’ Study
• Study finds bees, flowers wilted by climate change
• Warming oceans may cause the world's fish to shrink, study suggests
• Climate change could have devastating impact on global fisheries
• Chinook salmon at risk of 'catastrophic loss' under global warming, new study reveals
• Salmon may not survive warming in B.C. rivers
• Record North Pacific temperatures threatening B.C. marine species
• Warm ocean water triggered vast seabird die-off, experts say
• Climate change threatens birds, pushes them north
• Birds migrating at wrong time for warmer climate
• Climate change is turning some sea turtle populations 99% female
• Warmer weather, more killer whales bad news for Hudson Bay belugas
• Scientists say reindeer may be shrinking due to warming
• Caribou face major threat from climate change, study finds
• Gorillas, tigers at risk due to climate change-report
• Climate change driving 'ghost moose' calf mortality, say researchers
• Spread of 'zombie' disease killing off starfish linked to rising ocean temperatures

"This summer of fire and swelter looks a lot like the future that scientists have been warning about in the era of climate change, and it’s revealing in real time how unprepared much of the world remains for life on a hotter planet.
"The disruptions to everyday life have been far-reaching and devastating. In California, firefighters are racing to control what has become the largest fire in state history. Harvests of staple grains like wheat and corn are expected to dip this year, in some cases sharply, in countries as different as Sweden and El Salvador. In Europe, nuclear power plants have had to shut down because the river water that cools the reactors was too warm. Heat waves on four continents have brought electricity grids crashing.
"And dozens of heat-related deaths in Japan this summer offered a foretaste of what researchers warn could be big increases in mortality from extreme heat.
"...On the horizon is a future of cascading system failures threatening basic necessities like food supply and electricity."
"2018 Is Shaping Up to Be the Fourth-Hottest Year. Yet We’re Still Not Prepared for Global Warming" (NY Times, Aug 9, 2018)

Warming is just underway. Warming and extinctions will continue for centuries, if not millennia.
Far worse to come. The time to prevent it is now.

One judge cannot stop society. We argue to being a fact-based culture, and the courts will show that as true or false.

Well I wish him luck but I doubt this asshole, retrograde judge will even let him speak.

That's already happened and was expected. The whole point is to take the thing to the BC Court of Appeals, with a different judge and different circumstances, and apparently a more deliberative, less confrontational atmosphere.

"... 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." Too bad this doesn't describe the House of Commons.

This is promising.

I wish him well.

Just a simple comment that NEVER gets talked about. We on the west coast are extremely worried about the huge addition of large tankers on the Salish sea, going from Burnaby, the end of the TM pipeline, under two bridges, through the largest populated city in B.C. then past the Gulf islands and through a narrow passage at “turn point” where ships have to make a sharp turn, then past Victoria and eventually out into the ocean. It will only take one disaster to destroy our pristine coastline. The one knows who, what country and with what standards the shipping of this “dilbit” will encompass. That has never been discussed and it is of utmost importance. The responsibility of the pipeline ends in Burnaby. Then I guess it’s our responsibility! NO THANKS and NO TANKS!! Cheerio from Salt Spring Island.

I'd agree with Mr. Gooderham that the courts are the only institution left that have not been completely politicized by the Climate Change issue. I say 'completely' since a court not interested in hearing and assessing a legal argument on its merits because it involves a politically controversial issue, is one that has definitely been politically compromised. A plan that counts on the greater impartiality of the appeal court where there are 3 judges involved in the decision, is definitely worth a try. The legal argument for an appeal was provided, despite judge Affleck's efforts, so at the very least, the case for imminent peril should be able to get put on the record as fact, without obscuring political interference.

It's worth noting that the only progress being made on environmental or social issues these days is through the courts. The abrupt stop to the TM pipeline project that forced the NEB to reassess the project was the result of successful court action. Any real movement on aboriginal issues has also been achieved through the courts. The same thing applies to efforts to obtain the right to assisted dying, and so on. Any progress through the political process at best produces cosmetic changes, spin, or smoke and mirrors. While not perfect, the courts do provide better traction than the political approach.

My hat is off to Gooderham for putting himself on the firing line and taking the issue all the way, despite personal hardship. I hope Mr. Littlemore continues to monitor the progress of this initiative for the Observer all the way to its completion.

Yes, please, Mr. Littlemore!

This is helping Canadian law evolve into the Anthropocene era. It is scaling up "the defence of necessity" to make room for careful, conscientious civil disobedience that is undertaken to acknowledge environmental necessity.
David Gooderham, it's a fine thing that you're acting with knowledge, courage, and selflessness. Thank you.

If this goes ahead, how will the court expenses be covered? No doubt many people would consider making a donation.

Thank Heaven for the courageous among us. Let's hope Mr. Gooderham gets his day in Appeals Court and common sense and good judgement win.

The pipeline is relevant to climate change - much less a matter of "necessity" - if climate change could be detectably reduced by not building the pipeline. It's simply fantasy to imagine that the carbon that would move through it would never be burned without the pipeline being built. If the pipeline is not built, this is what will happen:

1) less oil will make it to the world market
2) the price of oil will go up minutely
3) people will pay it anyway, as they did in 1973 when it went up six-fold, or a few years ago when it shot up to $140: consumption did not go down. It went down a little in 1973, but then went back up again.
4) the exact amount of oil that would have gone though this pipeline will be extracted somewhere else.

The only way to halt the climate change is to stop USING the carbon. Yourself. Stop flying. Stop driving with internal combustion. Opposing the oil extraction in one place does no more than halting one flow of drugs while everybody continues to use them. The War on Drugs was useless and failed; the War on Oil Infrastructure - by people who fly and drive to the protest site - will be even more pointless and hypocritical. The sin lies not in the people who supply your consumption, but in the consumption itself.

It would be FAR more relevant to oppose a new highway, or especially a new airport. It would make sense to oppose WestJet buying new 737s - every one will burn 20 tonnes of carbon per hour and be in use for thousands of hours per year.

Opposing the pipeline while continuing to support oil-based transportation and new housing subdivisions far from workplaces (the burbs) is a policy of "please, yes, suck more carbon out of the ground so I can continue to drive, and fly, and live in my expensive West Van mini-mansion with the giant carbon footprint - just don't do it here. I prefer Indonesian and mid-East oil."