Groupe Maison Candiac Inc. v. Canada (Attorney General)

Groupe Maison Candiac Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-05-15
Neutral citation
2020 FCA 88
File numbers
A-279-18
Notes
Reported Decision
Decision Content
Date: 20200515
Docket: A-279-18
Citation: 2020 FCA 88
[ENGLISH TRANSLATION]
CORAM:
BOIVIN J.A.
DE MONTIGNY J.A.
RIVOALEN J.A.
BETWEEN:
LE GROUPE MAISON CANDIAC INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CENTRE QUÉBÉCOIS DU DROIT DE L’ENVIRONNEMENT
Intervener
Heard at Montreal, Quebec, on February 26, 2020.
Judgment delivered at Ottawa, Ontario, on May 15, 2020.
REASONS FOR JUDGMENT:
DE MONTIGNY J.A.
CONCURRED IN BY:
BOIVIN J.A.
RIVOALEN J.A.
Date: 20200515
Docket: A-279-18
Citation: 2020 FCA 88
CORAM:
BOIVIN J.A.
DE MONTIGNY J.A.
RIVOALEN J.A.
BETWEEN:
LE GROUPE MAISON CANDIAC INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CENTRE QUÉBÉCOIS DU DROIT DE L’ENVIRONNEMENT
Intervener
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] Le Groupe Maison Candiac Inc. (the appellant) is appealing from the decision by Justice LeBlanc of the Federal Court (as he then was) (Federal Court or LeBlanc J.) rendered on June 22, 2018, dismissing its application for judicial review (2018 FC 643) (the Decision). After a detailed and exhaustive analysis, the Federal Court refused to invalidate the Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population), SOR/2016-211 (the Order), as the appellant requested. Rather, the Court held that the enabling provision, under which the Order was made, falls within the jurisdiction of Parliament over criminal law, and that there was neither a disguised nor de facto expropriation despite the absence of compensation.
[2] The appellant has challenged each of these conclusions before us. It essentially argued that the Federal Court made an error of law in concluding that the enabling statute suppresses an “evil” within the meaning of 91(27) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), reproduced in R.S.C., 1985, App II, No. 5 (Constitution Act, 1867) and does not encroach on provincial jurisdiction. It also argued that the Federal Court erred in considering that the concepts of disguised or de facto expropriation did not apply in this case.
[3] Having carefully weighed the arguments of the parties and considered the applicable law, I am of the view that this appeal should be dismissed.
I. Background
[4] LeBlanc J. set out the factual and legislative context of this case at length, and the parties did not disagree with his views. As a result, it will not be necessary for me to deal with it extensively in these reasons. I will therefore simply review the essential elements which form the backdrop upon which the constitutional questions before us must be resolved.
[5] The appellant is a real estate developer and builder who operates in the province of Quebec, mainly in the municipalities of Saint-Philippe, Candiac, La Prairie and on the South Shore of Montreal. As part of its operations, it acquired land for residential development. Because portions of this land contain wetlands, the appellant requested a certificate of authorization from Quebec’s Ministry of Sustainable Development, Environment and the Fight against Climate Change. Section 22 of the Environment Quality Act, CQLR c. Q-2 (Environment Quality Act), provides that no person may undertake any construction, work or activity in wetlands or bodies of water without obtaining a certificate of authorization, in order to protect the environment and biodiversity.
[6] The appellant obtained its certificate of authorization on September 3, 2010, allowing it to begin its residential development (Appeal Book, vol. 2, tab H, pages 445–447 [AB]). This authorization required the appellant to establish conservation areas on its property and implement a three-year follow-up program. In June 2016, the appellant also obtained a certificate of authorization from the Municipality of Saint-Philippe to cut trees and perform backfill work (AB, vol. 2, tab H, pages 514–516).
[7] Informed of the appellant’s development work in 2013, the Minister of the Environment initially decided not to recommend the adoption of an emergency order, being of the opinion that this work did not constitute an imminent threat within the meaning of section 80 of the Species at Risk Act, S.C. 2002, c. 29 (the Act) (the text of this provision is reproduced in the appendix to these reasons). According to that provision, to which I will return later, the Governor in Council may, on the recommendation of the competent minister (in this case, the Minister of the Environment), make an emergency order to provide for the protection of a listed wildlife species. However, subsection 80(2), provides that the competent minister must make such a recommendation “if he or she is of the opinion that the species faces imminent threats to its survival or recovery.”
[8] It should be mentioned at this point that the species in question is the Western Chorus Frog (the frog). This small amphibian, generally no more than 2.5 centimetres long as an adult, seldom moves more than 300 metres from its breeding place. The frogs prefer temporary and shallow wetlands. In Canada, they are only found in southern Ontario and southwestern Quebec (in the Outaouais and Montérégie). According to the Committee on the Status of Endangered Wildlife in Canada, the Montérégie group has lost about 90% of its former range. At this rate, experts estimate that all of the frog’s habitats are likely to disappear from the area within 10 to 25 years. Given the decline of the frog’s population in Quebec (approximately 37% per decade) and in Ontario (30% between 1995 and 2006), the frog was added to Canada’s List of Wildlife Species at Risk in 2010 (Order Amending Schedule 1 to the Species at Risk Act, SOR/2010-32, section 5).
[9] The Minister’s decision not to recommend the adoption of an emergency decree was challenged through an application for judicial review by two non-profit environmental protection organizations. The Federal Court, with Justice Martineau presiding, allowed this application on June 22, 2015, and ordered the Minister to reconsider his decision within six months of the date of his judgment: Centre québécois du droit de l’environnement v. Canada (Environment), 2015 FC 773 (Centre québécois du droit de l’environnement). According to Martineau J., the Minister had erred in adopting a restrictive interpretation of subsection 80(2) of the Act whereby the requirement to be met by the Minister was limited to cases where a species was exposed to imminent threats to its survival or recovery on a national basis.
[10] Pursuant to this decision, Environment and Climate Change Canada (ECCC) initiated a systematic process of collecting and analyzing information on the frog and its habitat, including the current state of the species, its habitat in La Prairie, current and planned development projects, and existing protective measures, as well as consultation with municipalities and provincial departments. ECCC completed a detailed scientific assessment of the frog, as well as a detailed protection assessment of the species, including a review of legal protection by the provinces and the compensation and mitigation measures planned by various developers (including the appellant). In a third assessment dealing with imminent threats, ECCC considered the measures taken to mitigate the impact of the residential project, but found that [translation] “these measures will probably not ensure the long-term viability of the metapopulation affected by the project” (AB, pages 866 and 1474). Consequently, the study found that [translation] “the viability of the La Prairie metapopulation is threatened in the short term. As a result, an immediate response is required” (AB, page 1478).
[11] Given these findings, the Minister ruled that there was an imminent threat to the frog’s recovery in the area where the appellant was to build its housing development project. As she was required under the Act, she therefore recommended to the Governor in Council that an emergency order be made on December 4, 2015. Following this announcement, ECCC gathered information to establish the scope of the recommended Emergency Order and the prohibited activities likely to be included in it, and held meetings with various stakeholders, including the appellant.
[12] On June 17, 2016, the Governor in Council adopted the Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population), SI/2016-36, which was to come into force 30 days after it was registered. However, the day after a public information meeting was held on the Order (June 23, 2016), ECCC wildlife enforcement officers noted that activities likely to destroy the habitat identified in the Order were underway on the appellant’s property. Consequently, the Governor in Council adopted a new Order on July 8, 2016, which came into force immediately to counter any activities that would not be compatible with it (the Order at issue in this case, above, at paragraph 1).
[13] The area covered by the Order consists of breeding ponds confirmed to be active and the area within a 300-metre radius of these ponds, from which unsuitable habitat features have been removed. The total area of the zone included in the area covered by the Order is 1.85 km². The area was defined based on general and historical information, scientific studies and public consultations. Some of the appellant’s lots are included, in whole or in part, in the area covered by the Order. Indeed, the evidence shows that the area of the appellant’s lots covered by the Order is approximately 0.098 km2, or about 20% of the area of the appellant’s remaining lots.
[14] Subsection 2(1) of the Order lists the prohibited activities in the areas set out in the Schedule:
Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population), SOR/2016-211
Décret d'urgence visant la protection de la rainette faux-grillon de l'Ouest (population des Grands Lacs / Saint-Laurent et du Bouclier canadien), DORS/2016-211
Prohibitions
Interdictions
Prohibited activities
Activités interdites
2 (1) In the areas described in the schedule, it is prohibited to
2 (1) Les activités ci-après sont interdites dans les aires figurant à l’annexe :
(a) remove, compact or plow the soil;
a) retirer, tasser ou labourer la terre;
(b) remove, prune, damage, destroy or introduce any vegetation, such as a tree, shrub or plant;
b) enlever, tailler, endommager, détruire ou introduire toute végétation, notamment les arbres, les arbustes ou les plantes;
(c) drain or flood the ground;
c) drainer ou ennoyer le sol;
(d) alter surface water in any manner, including by altering its flow rate, its volume or the direction of its flow;
d) altérer de quelque façon que ce soit les eaux de surface, notamment modifier leur débit, leur volume ou le sens de leur écoulement;
(e) install or construct, or perform any maintenance work on, any infrastructure;
e) installer ou construire une infrastructure ou procéder à toute forme d’entretien d’une infrastructure;
(f) operate a motor vehicle, an all-terrain vehicle or a snowmobile anywhere other than on a road or paved path;
f) circuler avec un véhicule routier, un véhicule tout-terrain ou une motoneige ailleurs que sur la route ou les sentiers pavés;
(g) install or construct any structure or barrier that impedes the circulation, dispersal or migration of the Western Chorus Frog;
g) installer ou construire des ouvrages ou des barrières qui font obstacle à la circulation, à la dispersion ou à la migration de la rainette faux-grillon de l’Ouest;
(h) deposit, discharge, dump or immerse any material or substance, including snow, gravel, sand, soil, construction material, greywater or swimming pool water; and
h) verser, rejeter, déposer ou immerger toute matière ou substance, notamment de la neige, du gravier, du sable, de la terre, des matériaux de construction, des eaux grises ou des eaux de piscine;
(i) use or apply a pest control product as defined in section 2 of the Pest Control Products Act or a fertilizer as defined in section 2 of the Fertilizers Act.
i) utiliser ou épandre tout engrais au sens de l’article 2 de la Loi sur les engrais ou tout produit antiparasitaire au sens de l’article 2 de la Loi sur les produits antiparasitaires.
[15] Finally, section 3 of the Order provides that any violation of these prohibitions is an offence for the purposes of section 97 of the Act, which provides that the offender is liable to (subsection 97(1.1)) a fine of not more than $1,000,000 in the case of a corporation, other than a non-profit corporation, and in the case of any other person, to a fine of not more than $250,000 or to imprisonment for a term of not more than five years.
[16] On August 5, 2016, the appellant filed a Notice of Application for judicial review to:
[translation]
[Have the Court declare] the Order null, inoperative and non-opposable to [the applicant] on the basis that subparagraph 80(4)(c)(ii) of the Act (Species at Risk Act (S.C. 2002 c. 29)) under which it was adopted is unconstitutional because said Order is equivalent to an expropriation of the (applicant’s) property without compensation.
[17] Following a two-day hearing, the Federal Court dismissed the application for judicial review on June 22, 2018 (the Decision at paragraph 5).
II. Impugned decision
[18] After having carefully described the context of this case and reviewed the history of the protection of species at risk in Canada, the Federal Court considered the constitutionality of the impugned legislative provision and whether the Emergency Order constituted a form of expropriation without compensation. The Court applied the standard of correctness when it considered both issues.
[19] Before summarizing the respective positions of the parties, the Federal Court first recalled the analytical framework and applicable principles for determining the constitutional validity of a statutory provision in relation to the division of powers, then described the legislative framework which contains the impugned provision. More specifically, the Federal Court then considered whether subparagraph 80(4)(c)(ii): 1) has a legitimate public purpose in criminal law; 2) colourably encroaches on areas of exclusive provincial legislative competence; and 3) the system of prohibitions it established resembles a criminal law system. It should be noted here that the appellant does not challenge the Act as a whole, only the above subparagraph. Groupe Candiac accepts that the Act first aims to protect wild species (aquatic species and protected migratory birds) and spaces (federal lands); hence, federal legislative jurisdiction is not in doubt.
[20] With respect to the purpose of subparagraph 80(4)(c)(ii), the Federal Court rejected the characterization made by the appellant, that its pith and substance was to allow the federal government to impose, for the sake of consistency and efficiency, standards of conduct for the protection of wildlife species, regardless of the species or where its population resides. Rather, it adopted the Attorney General’s position that the purpose and legal effect of this provision would be to give the Governor in Council emergency intervention authority when a species at risk is about to suffer harm that would jeopardize its survival or recovery (the Decision at paragraphs 103–104). And in the Federal Court’s view, this is clearly an “evil” that Parliament could seek to suppress through its criminal law power. Relying primarily on the Supreme Court’s decision in R v. Hydro-Québec, [1997] 3 SCR 213, [1997] SCJ No. 76 (QL) [Hydro-Québec], the Court wrote:
[110] For one thing, I believe that subparagraph 80(4)(c)(ii) is intended to suppress an “evil.” I have difficulty in understanding how the release of toxic substances into the environment, caused by human activity, can properly constitute a source of legitimate criminal concern, but not an imminent threat, caused by human activity, to the survival or recovery of a species at risk, which, like all other species, is essential to maintaining life-sustaining systems of the biosphere, the depletion of which, by human activity, no longer needs to be demonstrated, nor does the impact of this depletion on the quality of the environment.
[21] In addition, the Federal Court did not accept the appellant’s contention that subparagraph 80(4)(c)(ii), under the guise of the criminal law power, constitutes in fact a colourable attempt to encroach on the jurisdiction of the provinces (the Decision at paragraphs 96 and 105). Rather, it accepted the Attorney General’s argument that the impugned provision rather authorizes emergency intervention when a species at risk is facing an imminent threat to its survival or recovery. The Court also noted that, unlike the case of an emergency order targeting an aquatic species, a migratory bird or any species on federal lands, the Order issued under subparagraph 80(4)(c)(ii) does not authorize the Governor in Council to impose protective measures, and saw it as evidence that Parliament did not assume the power to protect species at risk for the sake of efficiency and consistency. According to the Federal Court, although the Emergency Order could affect the application of existing provincial legislation, it is not determinative of the fact that the pith and substance doctrine allows encroachments on the other level of government’s jurisdiction (the Decision at paragraphs 129–130).
[22] Finally, the Federal Court rejected the appellant’s argument that subparagraph 80(4)(c)(ii) did not have the ingredients of a criminal law system, where a prohibition is combined with a sanction. The appellant had argued that the system was purely regulatory in nature, insofar as it allowed the federal government to impose discretionary prohibitions in a designated area and make exemptions, the content of which was also left to the discretion of the federal government. Citing again Hydro-Québec and Reference re Firearms Act (Can.), 2000 SCC 31, [2001] 1 SCR 783, [Reference re firearms]; P.W. Hogg, Constitutional Law of Canada, 5th ed. suppl., Toronto; Carswell, 2007 (loose leaf 2016), section 15.5(i) (Hogg), the Court expressed the view that Parliament may delegate to the executive branch the power to define or specify conduct that could have criminal consequences, and thus authorize the establishment of detailed, precise and highly complex regulatory systems (the Decision at paragraph 143). Such a flexible approach is particularly appropriate in environmental matters, given the inherent complexity of these matters and the wide range of activities that may be involved. The Court made the following comment:
[150] In Hydro-Québec, the majority stated that it was, “of course,” within Parliament’s criminal law power to carefully adapt, using regulatory authority, the prohibited activity based on the circumstances in which a toxic substance can be used or dealt with. I believe the same is true for the protection of species at risk facing an imminent threat to their survival or recovery. The measures deemed necessary in one case might not be necessary in another, with each species and each critical habitat having its own particularities. Giving the executive branch the power to carefully adapt the prohibited activity, as does subparagraph 80(4)(c)(ii), according to the particularities of the species and its habitat and the circumstances creating the imminent threat to its survival or recovery is, in my view, a valid exercise of Parliament’s criminal law power.
[23] Given its ruling that subparagraph 80(4)(c)(ii) constitutes a valid exercise of Parliament’s legislative power over criminal law, the Federal Court did not see fit to rule on whether it could also fall under the peace, order and good government clause, or to examine the ancillary powers doctrine (the Decision at paragraph 167). That said, the Court nevertheless expressed the view that this provision had a rational and functional connection with the Act as a whole, and that it would therefore have saved it as an ancillary measure to an otherwise valid legislative scheme even if it could not be considered, on its own, a true measure of criminal law (the Decision at paragraph 188).
[24] Finally, the Federal Court held that Parliament had expressly provided a mechanism to compensate for losses suffered following the application of an emergency order, which counters the arguments of disguised or de facto expropriation submitted by the appellant. Also, the Minister’s decision not to grant compensation may be judicially reviewed and in any case has no impact on the validity of the power to make an emergency order. These are two different decision-making processes that meet different and independent factual and legislative dynamics (the Decision at paragraphs 209 and 213).
III. Issues
[25] The only issues before the Federal Court were whether subparagraph 80(4)(c)(ii) of the Act is constitutionally valid, and whether the Order is void on the grounds that it constitutes a form of expropriation without compensation. The Notice of Application filed pursuant to section 18 of the Federal Courts Act, R.S.C., 1985, c. F-7, the Notice of Appeal before this Court and the Notice of Constitutional Question all stated that the relief sought consisted in having the Court declare the Emergency Order null, inoperative and non-opposable to the appellant [translation] “on the ground that subparagraph 80(4)(c)(ii) of the (Act) pursuant to which it was adopted is unconstitutional and because said Order amounts to an expropriation of the appellant’s property without compensation.”
[26] Before this Court, the appellant attempted to broaden the controversy somewhat by raising the reasonableness of the Order. However, the Federal Court (Groupe Maison Candiac Inc. v. Canada (Attorney General), 2017 FC 430 affirmed by 2017 FCA 216) dismissed the appellant’s motion to amend its notice of application for judicial review to allow it to challenge the appropriateness of making the Order. Therefore, in my view, the only issues that are appealable before us are as follows:
a) Did the Federal Court err in ruling that subparagraph 80 (4)(c)(ii) falls within Parliament’s criminal law power?
b) Did the Federal Court err in ruling that the absence of compensation does not invalidate the Order?
IV. Analysis
[27] When this Court hears an appeal from a judicial review decision of the Federal Court, our role is to decide whether the appropriate standard of review was followed and whether it was applied correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559, at paragraph 45. In this case, LeBlanc J. applied the correctness standard to both issues, and I conclude that it was the appropriate standard.
[28] The Supreme Court did not change the standard of review to be applied when examining questions regarding the division of powers between Parliament and the provinces in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 55. In Vavilov, the Court reiterated that the standard of correctness must continue to be applied in reviewing such questions, as was the practice in the past (Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190).
[29] As to whether the Order is valid despite the absence of compensation for those affected, in my view, this is rather a question of statutory interpretation. As the Supreme Court has stated on more than one occasion, regulations (to which the emergency order is akin) benefit from a presumption of validity. They can be struck down only if they are shown to be inconsistent with the objective of the enabling statute or the statutory mandate to the point of being “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose: Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] SCR 810, at paragraphs 24 and 28; Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160, at paragraph 27 [Syncrude].
A. Did the Federal Court err in finding that subparagraph 80(4)(c)(ii) falls within Parliament’s criminal law power?
[30] It is well settled in Canadian law that laws adopted by both Parliament and the provincial legislatures are entitled to a presumption of constitutionality. Therefore, the party alleging the invalidity of a law is required to show that it is invalid: see, inter alia, Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662; Reference re firearms, at paragraph 25.
[31] To determine whether an act or one of its provisions has been validly enacted, a two-stage analysis must be performed. The first step is to determine the “pith and substance” of the legislation or provision: this stage is called the classification of the law. This exercise involves an examination of the purpose and effects of the law in order to determine its “true meaning or essential character, its core”. (Reference re firearms, at paragraph 16; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, at paragraphs 28–30 [Long-Gun Registry]; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 SCR 3, at paragraphs 25–26). The purpose can be discovered by reading the legislation itself. It can also be ascertained by reference to extrinsic materials such as Hansard and government publications. It can also be inferred from the problems which Parliament sought to remedy: see Reference re firearms, at paragraph 17; Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, at paragraph 64; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, at pages 242–245 [RJR-MacDonald Inc.]; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 SCR 536, at paragraphs 17–18; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 SCR 146, at paragraph 53.
[32] Once this first stage has been completed, it must be determined whether the legislation so characterized falls under the head of power said to support it—the classification stage. This may require interpretation of the scope of the aforementioned power on the basis of the case law.
[33] It should be mentioned that the validity of an act must be examined, both at the qualification and classification stages, without taking into account the existence and terms of another related act which might have been adopted by the other level of government: Hogg, at page 16-3. If this is the case, it is because Canadian constitutional law has long recognized that a subject or matter can be approached from more than one angle. As a result, a federal law and a provincial law may govern an issue from different perspectives. This is the double aspect doctrine, which brings into play the principle of the paramountcy of federal law in the event of an operational conflict between federal and provincial legislation. The presence or absence of a provincial law on the same subject cannot therefore have any impact on the validity of a federal measure: Long-Gun Registry, at paragraphs 20 and 38; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457, at paragraph 68 (Reference re assisted reproduction).
[34] The Federal Court scrupulously followed this approach. After having presented both parties’ arguments regarding the pith and substance of subparagraph 80(4)(c)(ii) of the Act and taking into account the more general context of the Act, the Court accepted the Attorney General’s argument and considered that this provision, by virtue of its purpose and legal and practical effects, was “to give the Governor in Council emergency intervention authority when a species at risk is about to suffer harm that will compromise its survival or recovery” (the Decision, at paragraph 104). The Court further stated that this provision allowed the Governor in Council to make an order without having to conduct consultations and comply with the formalities normally required to make prohibitions under sections 34 and 61 of the Act applicable in a province in order to prevent the “brutal and sudden” disappearance of a species at risk (Centre québécois du droit de l’environnement, at paragraph 104).
[35] In my view, this characterization of subparagraph 80(4)(c)(ii) is unassailable and perfectly consistent with the purpose and effects of this provision. The purpose of the Act is not at all to directly encroach on provincial jurisdiction or impose uniform national standards, as the appellant argued at trial and reiterated before us. On the contrary, I am of the view that subparagraph 80(4)(c)(ii) is really intended to permit an emergency response when a listed wildlife species is about to suffer harm that will jeopardize its survival or recovery.
[36] The very language of the Act confirms this objective. Section 6 of the Act, Purposes, states that “the purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.”
[37] The preamble to the Act and the speeches delivered by the Minister when it was introduced in the House of Commons are consistent with its stated purpose, which refers, among other things, to the value of the environment, the role of the wildlife in the environment, the precautionary principle, and the various reasons, including moral reasons, for which we are duty-bound to prevent human activities from leading to the extinction of species (AB, pages 1551–1554). We must also take into account that the Act aims to implement the United Nations Convention on Biological Diversity, which Canada has ratified, thereby committing it to developing strategies and programs for conservation and the sustainable use of biological diversity.
[38] I also note that the prohibitory scheme set out in the Act contains several components. Sections 32 to 36 set out prohibitions on individuals of a species at risk, while sections 56 to 64 are intended to protect critical habitat of species at risk. It is interesting to note that these prohibitions do not apply in a province or territory (other than on federal lands, and except for aquatic species and migratory birds for the first series of prohibitions), unless an order to that effect has been adopted by the Governor in Council on the recommendation of the Minister (sections 34 and 61). The Minister may only make such a recommendation after consulting the appropriate provincial minister (paragraph 34(4)(a)) or if the provincial minister has requested that the recommendation be made (paragraph 61(3)(a). The Minister must also make this recommendation if the Minister is of the opinion that the laws of the province do not effectively protect the species or the residences of individuals of a wildlife species, or the designated portion of the species’ critical habitat (at subsection 34(3) and paragraph 61(4)(b)).
[39] As previously mentioned, section 80 also authorizes the Governor in Council to make an emergency order to provide for the protection of a listed wildlife species. The Governor in Council can make this decision only upon the recommendation of the competent minister, who must make such a recommendation if he or she is of the opinion that the species faces “imminent threats to its survival or recovery” (at subsection 80(2)). The appellant does not object to such an order being made insofar as it applies to an aquatic species, a migratory bird protected under the Migratory Birds Convention Act, 1994 (S.C. 1994, c. 22), or a federal land (paragraph (80)(4)(a), (b) and subparagraph (c), (i)). It only objects to subparagraph 80(4)(c)(ii), which makes it possible to adopt an emergency order covering listed wildlife species other than an aquatic species or a migratory bird species on provincial land.
[40] In my view, it is clear that this provision has a limited scope and is intended to address an emergency situation. It is clearly intended to prevent irreparable harm that would jeopardize the survival or recovery of a listed wildlife species. This is why such an order can be made by the Governor in Council without having to conduct consultations and comply with the formalities normally required under sections 34 and 61 of the Act, as noted by the Federal Court (the Decision, at paragraph 105). It is undoubtedly for the same reason that subparagraph 80(4)(c)(ii) does not authorize the Governor in Council to impose measures to protect the species and its designated habitat, as it can on federal lands. Under this provision, the Governor in Council may only enact provisions prohibiting activities likely to harm the species and this habitat. In my opinion, these are two indications of the narrow purpose pursued by Parliament and its desire to go no further than necessary to ensure the immediate survival of a species. This purpose is perfectly consistent with the preamble of the Act and section 6 to which I referred above (at paragraph [36] of these reasons).
[41] The urgency to act to protect biodiversity, which underlies the Act as a whole and more particularly the orders authorized under section 80, not only reflects Canada’s desire to comply with the international obligations that it has undertaken in ratifying the Convention, it also forms part of the backdrop of many scientific findings, each more alarming than the next. In a thorough expert report on the protection of species and their habitats filed by the respondent, Professor Blouin-Demers noted that [translation] “[t]here is consensus within the scientific community that most biodiversity indicators show sharp declines worldwide and there is no sign that the rate of biodiversity loss is slowing” and that “we must work harder if we really want to slow biodiversity loss” (AB, page 2115). He also said amphibians are the group with the largest percentage of invertebrate species considered endangered. Finally, he pointed out that among the factors causing biodiversity loss, “[h]abitat loss is considered the main cause of biodiversity loss for terrestrial species worldwide ” (AB, page 2117). It is clear that this scientific literature must be taken into account in order to identify the “evil referred to” by Parliament.
[42] An examination of how subparagraph 80(4)(c)(ii) is implemented and its practical effects did not reveal a colourable intent or a desire to do indirectly what would not be allowed to be done directly, i.e., to encroach on areas of provincial jurisdiction for purposes of uniformity across Canada. This provision only authorizes limited intervention insofar as habitat that is necessary for the survival or recovery of the species must be carefully defined, as well as activities that may adversely affect the species and that habitat. The Order at the centre of this case provides a prime example: the area covered consists of breeding ponds confirmed to be active and the area within a 300-metre radius of these ponds, from which unsuitable habitat features have been removed. The total area is only 1.85 km² (which already included a conservation park covering almost 50% of the area), defined based on general and historical information, scientific studies and public consultations (AB, page 868). The Order contains a detailed list of prohibited activities, which all aim to prevent the loss or degradation of habitat that the frog needs in order to grow and reproduce. Indeed, the government’s press release used these terms to announce the Emergency Order (AB, page 2136).
[43] A careful reading of the Summary of the regulatory impact study (AB, pages 2178 and following) confirms the purpose of the Order and the urgency to act. The Summary mentioned, inter alia, that the area of suitable habitat for the La Prairie metapopulation decreased by 57% between 1992 and 2013, and that the species would be unlikely to recover without an immediate response (AB, page 2178). After the costs and benefits of the planned response had been reviewed, it was found that the Order [translation] “ensures the protection of the Western Chorus Frog (GLSLCS), La Prairie metapopulation, by protecting 90% of the species’ suitable habitat from destruction.” The Summary specified that this objective was achieved by prohibiting activities most harmful to the frog, which [translation] “will help maintain the benefits that the species provides to the Canadian population and its potential future uses” (AB, page 2213). This impact analysis confirmed, assuming that was necessary, that the objective was to deal with an emergency situation and ensure the survival of the species by protecting its critical habitat.
[44] It is also important to mention another element that the parties did little to draw our attention to in this case. Under section 82 of the Act, the Minister of the Environment must make a recommendation to the Governor in Council that an emergency order be repealed if the Minister is of the opinion that the species to which the Order relates would no longer face imminent threats to its survival or recovery even if the Order were repealed. This provision clearly demonstrates once again that the objective is to deal with a precarious situation which requires an immediate response, and not to encroach on provincial powers and to seize powers for itself on a permanent basis.
[45] Finally, it has been shown that section 80 of the Act has been used sparingly since it came into force in June 2003. As the Federal Court noted at paragraph 124 of its reasons, only one other order has been issued to deal with imminent threats to the survival and recovery of a listed wildlife species, the Greater Sage-Grouse. The prohibitions provided for in that Order covered provincial and federal crown lands used by the petroleum industry and for animal husbandry. The respondent therefore did not abuse the power granted to him under subparagraph 80(4)(c)(ii), which again tends to confirm that this provision is not intended to be used for a colourable or hidden purpose.
[46] In short, for all of the foregoing reasons, I am of the view that the Federal Court did not err in concluding that the impugned provision does not constitute a subterfuge to allow the federal government to circumvent the authorizations granted to the appellant by the province and the municipality and impose its own rules of conduct. Rather, it is designed to allow the Governor in Council to respond immediately when a species at risk is about to suffer harm that will jeopardize its survival or recovery. Given the presumption that legislation is constitutional, the courts are reluctant to declare that a law is colourable, which is why the party alleging a misuse of powers bears a heavy burden of proof. (Long-Gun Registry, at paragraph 31; Syncrude, at paragraph 53). That was not demonstrated in this case. The mere fact that an otherwise valid law could have incidental effects on legislative powers or measures adopted by another level of government is not in itself sufficient to conclude that this law was adopted for improper purposes. (Reference re firearms, at paragraph 49; Long-Gun Registry, at paragraph 32; Hydro-Québec, at paragraph 129).
[47] Having found that the pith and substance of subparagraph 80(4)(c)(ii) is to protect a listed wildlife species when its habitat is under an imminent threat that may adversely affect its survival or recovery, it remains to be determined whether Parliament has constituti