The case of Howard Breen and Melanie Murray

AMID CANADA’S coast-to-coast wildfires and shattering global temperature records, two prominent climate activists will stand trial in a case that could redefine climate action, civil disobedience, and the law. Howard Breen, a 69-year-old grandfather from Nanaimo, and Melanie Murray, a mother from Denman Island, will present their “climate necessity defence” before the Honourable Provincial Court Judge Ronald G. Lamperson at the Nanaimo, BC Courthouse on August 1, 2023 (9:30am PDT).

Both defendants, active members of Extinction Rebellion and Save Old Growth, face multiple charges, including mischief and breaches of release orders, due to their nonviolent climate action protests. Breen, having spent 121 days under pretrial house arrest—including a 31-day hunger strike—and Murray, chose the “climate necessity defence” to shed light on the country’s worsening climate crisis.

Breen, a former staff NGO campaign director, and Murray, a steadfast climate activist, have underscored the climate crisis’s immediate and wide-ranging impacts, ranging from Indigenous human rights violations to the infringement on public health and safety. Their advocacy has been grounded on the Public Trust and Duty of Care doctrines, asserting that the government bears the climate responsibility to protect the natural environment for its citizens and non-human species.

Their upcoming trial aims to shed light on the desperate need for immediate action in the face of the worsening climate catastrophe. “We’ve exhausted all traditional legal options and believe that being part of a boldly disruptive global movement can draw urgent attention to the immediate danger of the climate crisis,” says Breen.

Murray adds, “We are fully aware of the risks involved in our unconventional approach. However, we are compelled by the urgency of the climate crisis and the moral obligation to protect future generations.”

As Breen and Murray prepare to argue their case, they draw comparisons to historical figures like Dr. Robert Oppenheimer, Albert Einstein and others who took monumental risks to advocate against global nuclear proliferation. They call upon the court, the government, and society at large to consider the profound moral and ethical implications of our actions on the existential climate crisis.

“Canada is burning coast-to-coast this summer. As of the most recent update, 4,241 wildfires have burned since the beginning of 2023, scorching at least 11 million hectares of land across Canada this year, and global temperatures have broken all past records,” says Vancouver lawyer Joey Doyle, who will represent the defendants. “Yet Canada and BC are still approving new fossil fuel projects and deforestation of primary forest carbon sinks, while failing to meet their emission reduction targets. In such a context, my clients felt compelled to act.”

This trial would be notable for the introduction of expert testimony by IPCC science peer reviewer Dr. Peter Carter and UBC Professor Kimberley Brownlee, an expert in civil disobedience. Dr. Carter has produced an expert report on the current science of the climate to opine that “the risk to the survival of civilization, all humanity, and most life on Earth has never been higher than today, due to accelerating unmitigated climate change.” Prof. Brownlee will provide evidence on the moral necessity of civil disobedience in the face of a significant crisis. If their testimony is permitted, it will be the first time in a Canadian civil disobedience-related case that an expert has given evidentiary testimony asserting the legitimacy of civil disobedience.

At trial, Crown prosecutors are expected to make submissions to disqualify the expert witnesses expected to testify for the defence. The outcome of this motion will be decided by Judge Lamperson at trial, following the defendants’ own testimonies on August 1.

“This frivolous and vexatious effort by the Crown prosecutors to thwart a landmark necessity defence precedent in the midst of a national wildfire and flooding emergency is an egregious violation of our right to assert a meaningful defence to confront the imminent peril we all face,” says Breen.

“Breen and Murray have been at the forefront of the fight against climate breakdown and have repeatedly highlighted the immediacy and severity of the climate crisis,” said their legal counsel. “This trial is an opportunity to bring these important issues into the judicial spotlight and provoke serious discussions with experts on climate policy and redefine the application of the necessity defence to ensure we don’t criminalize those helping to pull the global fire alarm,” said Doyle.

The defence team is not contesting the Crown’s evidence proving their actions. A successful outcome could set a precedent for the use of the “climate necessity defence” in Canadian law and help legally ‘democratize climate necessity internationally.’

In May 2023, Breen and Murray unsuccessfully argued before Judge Lamperson that their Charter Rights & Freedoms were violated when arrested. The last trial making a climate necessity argument was in 2020 by self-representing former Vancouver lawyer David Gooderham and Jennifer Nathan who argued a climate necessity defence for breaching an injunction to protest the Transmountain Pipeline. The BC Court of Appeal rejected this argument. Breen and Murray will seek to distinguish their case on the basis of the urgency of the crisis and the futility of traditional methods of political engagement.

Their trial on August 1 marks a turning point in the fight against climate breakdown, advocating for transformative action and legal reforms to address the climate emergency adequately. As the defendants face their day in court, nonviolent climate “disruptions” continue worldwide to inspire a burgeoning global movement of climate activists seeking to democratize survival for the many.

The trial will be held at 9:30 am PDT Tuesday, August 1 at the Nanaimo, BC Courthouse (35 Front Street, Nanaimo.