Sentencing Should Reflect ‘Real-World Context’ for Pipeline Protests, Doctor Tells TMX Judge
The massive, irrefutable harms to human health already being delivered by climate change demand that courts rule beyond the narrow letter of the law when pipeline protesters are up on charges, writes Canadian Association of Physicians for the Environment co-founder Warren Bell in an open letter to B.C Supreme Justice Kenneth Affleck, published recently in the National Observer.
Writing on the same day that a number of doctors risked arrest by protesting at the Trans Mountain construction site on Burnaby Mountain, Bell noted that the judge had so far convicted every defendant who faced him, and that sentences were becoming harsher. “Last week,” he noted, “you sentenced seven women, six of whom were in their late sixties and mid-seventies, to serve time in prison.”
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And yet, Affleck had so far “largely dismissed eloquent statements from scientists, health professionals, well-informed seniors and others—many of whom have never before resorted to civil disobedience—as irrelevant.”
Bell attributed Affleck’s performance to date to his sense that he must serve as a “trier of fact”—whether the accused have breached the terms of the injunction against protest—but not the profound and reverberating injustices of building a pipeline amid a mounting climate crisis.
What judges like Affleck urgently need, Bell wrote, is to expand their understanding of the relevant facts that must be brought to bear in the prosecution of citizens protesting pipelines in 2018. Otherwise, he warned, “your decisions around the protesters could be interpreted as willfully blind to an essential reality of our time”—but then, he noted, Affleck has “seen this kind of situation before.”
As a lawyer in 2005, Bell reminded the judge, “you argued on behalf of Imperial Tobacco that public officials should not be allowed to ask for reparation from the tobacco industry for injury caused by its products. You argued this case all the way to the Supreme Court of Canada, only to see that public officials, in a changed world, were granted the right to seek such reparation.”
Fast forward to 2018, Bell observed, and Affleck seems once more determined to use “the narrowest interpretation of the law” to affirm the rights of a rapacious extractive industry above those of citizens to a healthy, safe, and productive life.
Writing as a primary care physician, concerned about the health impacts of his patients’ environments in a small B.C. town, Bell presented Affleck with “a chain of evidence” connecting the dots between pipeline construction, accelerating global warming, and “multiple severe harms to human health.” Along the way, he urged the judge to rethink what it means to be a “trier of fact” in the age of climate meltdown, while pointing to the role of continued fossil fuel development and greenhouse gas-intensive tar sands/oil sands extraction in pushing global warming beyond a “safe” threshold.
“It would be naïve to assume that the effects of climate change on human health will be modest or easily manageable,” he wrote. Already, “harms and massive disruption caused by extreme weather events are today being observed all over the planet, including in this country and in this province and this very city, in which smoke and particulate matter from forest fires surrounds your courtroom.”
From aggressive and fast-moving wildfires to heat stroke injuries and deaths, floods and coastal storm surges to displacement of entire populations by sea level rise, spread of physical disease to the “mental suffering” resulting from climate trauma, and direct conflict over scarce resources, “climate change will not simply cause hardship and suffering and impairment of health and well-being, or even deaths,” he added. “It will impair the very life support systems upon which all of us are utterly dependent.” He urged Affleck to factor that “real world context” into his treatment of pipeline protesters.
“Whether you and I choose to acknowledge it or not, we are intimately conjoined by the fact that a threat of global dimension, with profound, clearly measurable and highly predictable harmful outcomes, has been laid out starkly before us by some of the best and brightest minds in our human community,” Bell wrote, addressing Affleck as one professional to another, physician to judge.
“If you and I fail to act responsibly, then the harshest burdens of our failure will be borne not by you and me, because we’ll be dead in a decade or two. They will be borne by those who are young today, and by many more not yet born.”