Trans Mountain Pipeline Decision: The Comfort and Cost of Judicial Immunity

Canadians enjoy one of the most fair and reliable justice systems in the world. Despite criticisms of delays, which are common, and discriminatory decisions, which do occur from time to time, examples of failures in the system are the exception, not the rule.

The vast majority of cases proceed through the system without controversy, without public attention, and without any concern that the final outcome was anything other than a fair and just trial and decision. Yes, mandatory sentences have taken some discretion out of the hands of judges, and the delays mentioned above all too often result in charges being tossed out. But the system is a good one.

An important feature of our system is judicial immunity. Simply put, judicial immunity means that the judges in our courts are immune from personal liability for the harm their decisions may cause other parties.

This is true so long as judges act within their professional capacity and do not breach the code of proper conduct. This principle allows them to make decisions without fear of personal repercussions or litigation.

This doesn’t mean judges don’t make mistakes in their judgments. It simply means that their decisions—regardless of whether they are good or bad—won’t be held against them.

Now, I am certainly not questioning the esteemed role of judges in our judicial system. Nor do I question the principle of judicial immunity. But the recent Federal Court of Appeal’s ruling on Kinder Morgan’s Trans Mountain Expansion Project demonstrates the incredible damage that can result from a judge’s decision.

With the stroke of their pens, Justices Eleanor Dawson, Yves de Montigny, and Judith Woods brought the entire project to a grinding halt and cast great uncertainty over the future of the entire venture. Hundreds of workers were instantly impacted, losing jobs that were supporting them and their families.

Three judges—each earning over $300,000 per year—taking long-held interpretations of “engagement” with Indigenous peoples into their own hands, seemingly without regard for the devastating impact to thousands of Canadian workers and to the Canadian economy.

Beyond the immediate impact of their decision on those who have lost their livelihoods, consider the broader impact on the Canadian government. Experts agree that Canada’s lack of export options for our oil—a problem that would be greatly mitigated by this pipeline—costs the country over $15 billion each year.

In the best case scenario, where the project only suffers a six-month delay as a result of this decision, the financial impact would be $7.5 billion for the country.

In the worst case scenario, where the decision proves to be the death nail for the project, the cost of $15 billion per year will accumulate until another pipeline to another coast mitigates the problem—or until the world no longer needs oil. The total cost could easily reach $100 billion.

We are right to remain proud of our judicial system in Canada. But I can’t stop thinking about the injustice this decision brings to the men and women—including thousands of CLAC members—who were looking forward to working on this project as well as the far-reaching repercussions on the boarder economy. I can’t help but feel like the courts have let all of us down in a very big way.