Article content continued

We apologize, but this video has failed to load.

tap here to see other videos from our team. Try refreshing your browser, or

But Affleck said Thursday the “excuse of necessity has no air of reality in these proceedings” and reminded Sandborn that court orders are a foundation of the rule of law, “without which we could not enjoy our robust democracy.”

Affleck cited a 1984 Supreme Court of Canada decision that said, if the necessity defence is to be allowed, it must be “strictly controlled.” More specifically, a defendant must show there was “no other viable option” but to commit the criminal act and that there was an “imminent risk of an immediate peril.”

Neither of these tests were met by Sandborn, the judge said. Sandborn, for instance, made “no attempt” to seek a variation of the injunction order or to appeal it. Further, Sandborn’s argument that the pipeline expansion constituted crimes against Aboriginal people, other residents and the environment ignored the fact that the work being done by Trans Mountain had been “expressly sanctioned by the responsible authorities.”

“The work is lawful,” the judge said, “and to call it a crime is just a slogan, not an argument.”

The judge also said Sandborn’s argument of an imminent risk of peril from the ongoing use of fossil fuels fell flat because the expansion hadn’t yet been built and could take “months, if not years.”

Sandborn, who chose to represent himself, said outside the courtroom he was not surprised by the ruling, likening his application to “swimming upstream against a torrent.”

Photo by Richard Lam/Postmedia

He said he will consult with advisers about other arguments he might make when his trial rolls around in June, but said he has no regrets about his actions thus far.