La Rose v. Canada

La Rose v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-12-13
Neutral citation
2023 FCA 241
File numbers
A-289-20, A-308-20
Decision Content
Date: 20231213
Dockets: A-289-20
A-308-20
Citation: 2023 FCA 241
CORAM:
RENNIE J.A.
LASKIN J.A.
LEBLANC J.A.
Docket: A-289-20
BETWEEN:
CECILIA LA ROSE, by her guardian ad litem Andrea Luciuk, SIERRA RAINE ROBINSON, by her guardian ad litem Kim Robinson, SOPHIA SIDAROUS, IRA JAMES REINHART-SMITH, by his guardian ad litem Lindsey Ann Reinhart, MONTAY JESSE BEAUBIEN-DAY, by his guardian ad litem Sarah Dawn Beaubien, SADIE AVA VIPOND, by her guardian ad litem Joseph Conrad Vipond, HAANA EDENSHAW, by her guardian ad litem Jaalen Edenshaw, LUCAS BLAKE PRUD’HOMME, by his guardian ad litem Hugo Prud’homme, ZOE GRAMES-WEBB, by her guardian ad litem Annabel Webb, LAUREN WRIGHT, by her guardian ad litem Heather Wright, SÁJ MILAN GRAY STARCEVICH, by her guardian ad litem Shawna Lynn Gray, MIKAEEL MAHMOOD, by his guardian ad litem Asiya Atcha, ALBERT JÉRÔME LALONDE, by his guardian ad litem Philippe Lalonde, MADELINE LAURENDEAU, by her guardian ad litem Heather Dawn Plett and DANIEL MASUZUMI
Appellants
and
HIS MAJESTY THE KING IN RIGHT OF CANADA and THE ATTORNEY GENERAL OF CANADA
Respondents
Docket: A-308-20
AND BETWEEN:
DINI ZE’ LHO’IMGGIN, also known as ALPHONSE GAGNON, on his own behalf and on behalf of all the members of MISDZI YIKH and DINI ZE’ SMOGILHGIM, also known as WARNER NAZIEL, on his own behalf and on behalf of all the members of SA YIKH
Appellants
and
HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondent
Heard by online video conference hosted by the Registry on February 14 and 15, 2023.
Judgment delivered at Ottawa, Ontario, on December 13, 2023.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
LASKIN J.A. LEBLANC J.A.
Date: 20231213
Dockets: A-289-20
A-308-20
Citation: 2023 FCA 241
CORAM:
RENNIE J.A.
LASKIN J.A.
LEBLANC J.A.
Docket:A-289-20
BETWEEN:
CECILIA LA ROSE, by her guardian ad litem Andrea Luciuk, SIERRA RAINE ROBINSON, by her guardian ad litem Kim Robinson, SOPHIA SIDAROUS, IRA JAMES REINHART-SMITH, by his guardian ad litem Lindsey Ann Reinhart, MONTAY JESSE BEAUBIEN-DAY, by his guardian ad litem Sarah Dawn Beaubien, SADIE AVA VIPOND, by her guardian ad litem Joseph Conrad Vipond, HAANA EDENSHAW, by her guardian ad litem Jaalen Edenshaw, LUCAS BLAKE PRUD’HOMME, by his guardian ad litem Hugo Prud’homme, ZOE GRAMES-WEBB, by her guardian ad litem Annabel Webb, LAUREN WRIGHT, by her guardian ad litem Heather Wright, SÁJ MILAN GRAY STARCEVICH, by her guardian ad litem Shawna Lynn Gray, MIKAEEL MAHMOOD, by his guardian ad litem Asiya Atcha, ALBERT JÉRÔME LALONDE, by his guardian ad litem Philippe Lalonde, MADELINE LAURENDEAU, by her guardian ad litem Heather Dawn Plett and DANIEL MASUZUMI
Appellants
and
HIS MAJESTY THE KING IN RIGHT OF CANADA and THE ATTORNEY GENERAL OF CANADA
Respondents
Docket:A-308-20
AND BETWEEN:
DINI ZE’ LHO’IMGGIN, also known as ALPHONSE GAGNON, on his own behalf and on behalf of all the members of MISDZI YIKH and DINI ZE’ SMOGILHGIM, also known as WARNER NAZIEL, on his own behalf and on behalf of all the members of SA YIKH
Appellants
and
HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
RENNIE J.A.
I. Overview [1] These reasons address two decisions of the Federal Court striking the appellants’ statements of claim. I will refer to the appeals as either the La Rose appeal or the Misdzi Yikh appeal, as necessary.
[2] The appellants in the La Rose appeal are 15 children and youth (the youth appellants) who were between the ages of 10 and 19 at the time that they filed their statement of claim. They reside across Canada in seven provinces and one territory. Together, the youth appellants initiated an action against Canada for its failure to address the problem of climate change. They sought remedies under sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), contending that the impacts of climate change “interfere with their physical and psychological integrity and their ability to make fundamental life choices” (youth appellants’ statement of claim at para. 6). They assert that Canada’s legislative response to climate change has a disproportionate effect on their generation and that they have suffered—and will continue to suffer—the consequences, given their vulnerability and age.
[3] The appellants in the Misdzi Yikh appeal are two Wet’suwet’en House groups that comprise the Likhts’amisyu (Fireweed) Clan, Misdzi Yikh (Owl House) and Sa Yikh (Sun House) and each of the House groups’ dini ze’ or Head Chief (the Dini Ze’). The Dini Ze’ of each Wet’suwet’en House group embodies their House and is responsible for the protection of the House’s members, possessions, and territories.
[4] The Dini Ze’ launched their claim as a representative proceeding under Rule 114 of the Federal Courts Rules, S.O.R./98-106, contending that Canada has contributed to climate change in a way that poses a “threat to their identity, to their culture, to their relationship with the land and the life on it, and to their food security” (Dini Ze’s statement of claim at para. 2). They say the legislative response to climate change and executive actions exacerbate the threat and violate their protections and rights under sections 7 and 15 of the Charter. They say that the legislation and regulations authorizing the current levels of greenhouse gas (GHG) emissions, along with the continued and past approvals of GHG-emitting projects, result in Canada breaching its obligations under international law in the Paris Agreement, 12 December 2015, U.N.T.S. 3156 (p. 79) (Paris Agreement). This constitutes a breach of domestic law, as the targets in the Paris Agreement have been enshrined in section 7 of the Canadian Net-Zero Emissions Accountability Act, S.C. 2021, c. 22. In addition, they argue that Parliament has exceeded the general power under section 91 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5 (the Constitution Act, 1867) to make laws for the peace, order and good government of the country (the general power).
[5] Canada responded to each of these actions with a motion to strike. Canada’s position is that GHG-induced climate change is real, scientifically established and objectively measurable. GHG emissions are having demonstrable negative impacts on the Canadian environment, the economy and the health of Canadians, now, and will have grave consequences in the future unless urgently addressed. However, Canada contended that the appellants’ claims were not justiciable, or, if they were justiciable, disclosed no cause of action on the basis that there is no nexus between the harm suffered and to be suffered and the impugned legislation.
[6] The Federal Court granted Canada’s motions, striking the youth appellants’ statement of claim (2020 FC 1008, per Manson J.) and the Dini Ze’s statement of claim (2020 FC 1059, per McVeigh J.), both without leave to amend.
II. Decisions below [7] I will first describe Manson J.’s decision, which relates to the La Rose appeal, and then turn to McVeigh J.’s decision in the Misdzi Yikh matter.
[8] Manson J. struck the youth appellants’ statement of claim and, as noted, did so without leave to amend (La Rose Reasons at para. 101). He found that their claims under sections 7 and 15 of the Charter were not justiciable, as they were so political that they were not suitable for judicial determination. Manson J. held that the youth appellants’ “approach of alleging an overly broad and unquantifiable number of actions and inactions on the part of [Canada] does not meet [the] threshold requirement [that a policy response be translated into law or state action prior to constitutional review] and effectively attempts to subject a holistic policy response to climate change to Charter review” (La Rose Reasons at para. 40). He added that even if these claims were justiciable, they failed to disclose a sufficiently discrete instance of state action so as to permit any Charter analysis (La Rose Reasons at paras. 59, 61, 79). Manson J. also noted that the remedies sought by the youth appellants could not practically address any Charter violation, if proved (La Rose Reasons at para. 55).
[9] Importantly for the purposes of these appeals, Manson J. did not strike the youth appellants’ claim under section 7 of the Charter on the basis that it asserted positive rights, noting the judiciary’s reluctance to definitively cap the rights protected by section 7 in Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 [Gosselin] and Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, [2020] 2 F.C.R. 299 [Kreishan] (La Rose Reasons at paras. 67-70).
[10] In dealing with the youth appellants’ argument that Canada has a duty to preserve and protect public resources, Manson J. determined that this public trust claim was justiciable but disclosed no reasonable cause of action (La Rose Reasons at paras. 58 and 87). He considered British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74 [Canfor] and Burns Bog Conservation Society v. Canada, 2014 FCA 170, 464 N.R. 187 [Burns Bog], which the youth appellants argued showed the possibility that a public trust doctrine may exist at common law, but ultimately found that these authorities did not provide a legal foundation for the “breadth of the rights and actionable interests” raised in the youth appellants’ claim (La Rose Reasons at paras. 88-92). Manson J. characterized the claim under the public trust doctrine as “reflective of an ‘outcome’ in search of a ‘cause of action’” (La Rose Reasons at para. 88).
[11] In the Dini Ze’s action, McVeigh J. granted Canada’s motion and struck the Dini Ze’s statement of claim for non-justiciability, without leave to amend (Misdzi Yikh Reasons at paras. 8 and 116). McVeigh J. concluded that the Dini Ze’s proposed amendments to their statement of claim would not cure its defects (Misdzi Yikh Reasons at para. 114).
[12] McVeigh J. highlighted that the Dini Ze’ were in essence arguing for an interpretation of the general power that would require Parliament to enact specific laws, and that this interpretation would impose a positive duty on Parliament previously unknown in Canadian law (Misdzi Yikh Reasons at para. 46). She disagreed that the general power could create such a duty and struck this claim (Misdzi Yikh Reasons at paras. 27, 84-85).
[13] Turning to the Dini Ze’s Charter claims, McVeigh J. noted that the Dini Ze’ had pled no specific laws or state actions that breached their section 7 or 15 Charter rights (Misdzi Yikh Reasons at paras. 50, 75, 91). She further held that, in any event, the Charter claims fell beyond the courts’ institutional capacity due to the claims’ broad political nature (Misdzi Yikh Reasons at paras. 56-57, 72, 74, 77). She specifically noted that “[t]he issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government” (Misdzi Yikh Reasons at para. 77).
[14] McVeigh J. declined to permit the Charter claims to proceed to trial on the possibility that section 7 or 15 may come to encompass positive obligations (Misdzi Yikh Reasons at para. 58):
Gosselin left the door slightly open regarding positive obligations that may be imposed on a government to remedy violations of the Charter being justiciable. However, this is not such a case. There is no impugned law or action to evaluate, there are no specific allegations of government actions, and the positive obligations (or limitations) sought by the Dini Ze’ are vague and without the focus to affect the desired results.
III. Issues on appeal [15] The youth appellants argue that Manson J. erred by concluding that their Charter claims were not justiciable based on the “broad and diffuse” nature of the asserted state conduct. They argue that, despite the breadth of their claims, the Federal Court would nevertheless be able to apply a “judicially discoverable standard to a discrete and manageable aspect of the government’s conduct” (youth appellants’ memorandum of fact and law at para. 4). They further argue that Manson J. erroneously concluded that their public trust claim was doomed to fail, as the Supreme Court has left open the possibility that such a claim may succeed, and that the cause of action marks only an incremental change to the common law as it presently exists. Finally, the youth appellants say that Manson J. prematurely assessed the viability of the remedies they sought, an assessment they say ought to have been left to a trial judge.
[16] The Dini Ze’ appellants take a position similar to the youth appellants with respect to McVeigh J.’s decision to strike their Charter claims, arguing that the claims were in fact justiciable. They also submit that McVeigh J. misconstrued their claim under the general power in section 91 of the Constitution Act, 1867 as asserting a positive duty to legislate. Similarly, the Dini Ze’ appellants say that McVeigh J. overlooked what they describe as relevant decisions in the United Kingdom (the UK) that support their argument that the general power may be interpreted as a limitation on the government’s ability to legislate.
[17] In response, Canada contends that the appellants’ challenges to Canada’s laws are so broad and diffuse that they disregard Canada’s separation of powers—effectively asking the judiciary to undertake the function reserved to the legislature or the executive—and are accordingly unsuitable for judicial adjudication. Canada further contends that the appellants’ section 7 and section 15 claims are positive rights claims, which would obligate Parliament to act affirmatively. Canada argues that positive obligations do not figure in any Charter jurisprudence to date and that the claims fail on that basis alone. Canada stresses that the appellants fail to specifically identify the particular laws or policies that breach their Charter rights, and that the claims fail for lack of particularity. Finally, Canada says that neither the youth appellants’ public trust claim nor the Dini Ze’s section 91 claim disclose a reasonable cause of action, given the absence of any jurisprudence in support of the asserted public trust or the proposed interpretation of the general power.
IV. Motions to strike [18] The relevant inquiry on motions to strike is whether it is plain and obvious that the pleaded claims have no reasonable prospect of success (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420 at para. 14 [Atlantic Lottery]; Canada (Attorney General) v. Nasogaluak, 2023 FCA 61, 2023 CarswellNat 697 (WL Can) at para. 18, leave to appeal to SCC requested).
[19] Three ancillary principles inform the application of this test. First, the facts are to be taken as proven unless they are manifestly incapable of proof. Second, the pleading must be read generously, and, recognizing that the law is not static and evolves to address new and emerging situations, a motions judge must err on the side of permitting novel but arguable claims to proceed to trial (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 21 [Imperial Tobacco]; Mohr v. National Hockey League, 2022 FCA 145, 472 D.L.R. (4th) 413 at para. 48, leave to appeal to SCC refused, 40426 (20 April 2023)). Third, the onus is on the defendant who seeks to establish that there is no reasonable cause of action (Edell v. Canada, 2010 FCA 26, 399 N.R. 115 at para. 5).
[20] The question in these appeals lies in whether the claims fail on the basis of justiciability, the substantive law, the pleadings, or perhaps on all three grounds. If the issues raised in the claims are not justiciable, that is a complete answer to the matter—the claims must be struck. But if the claims are justiciable, the claims may also fail on either the second objection—namely, that they disclose no reasonable cause of action—or on the third, a failure of the pleadings. The second objection, if successful, would normally be fatal; the third one, in appropriate circumstances, may be remedied by amendments.
[21] I will explain why the claims based on the general power, the public trust doctrine and section 15 of the Charter fail. They have no reasonable prospect of success and were properly struck without leave to amend.
[22] The section 7 claims are justiciable, but nevertheless should be struck, albeit with leave to amend. The section 7 claims fail, not because they are destined to fail in this context or have no reasonable prospect of success, but because the pleadings of the section 7 claims as framed are incompatible with constitutional adjudication. The section 7 claims fail not because they are destined to fail in this context or have no reasonable prospect of success, but because the expansive and diffuse scope of the pleadings as framed are incompatible with constitutional adjudication.
V. Justiciability [23] I begin with justiciability. As noted, Manson and McVeigh JJ. took somewhat different approaches to the issue.
[24] Justiciability distinguishes claims suitable for judicial determination from those that are not. When assessing justiciability, “[t]he court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter” (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750 [Highwood] at para. 34, citing Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Carswell, 2012) at 7 and 294) [Sossin, Boundaries of Judicial Review]). The question of institutional capacity asks what the court can do; the legitimacy question asks what the court should do. Courts decline to adjudicate issues that ask that they act beyond their institutional capacity or legitimacy.
[25] Two considerations motivate the justiciability analysis. The first is constitutional, the second, more pragmatic.
[26] The constitutional consideration is the court’s respect for its role in a Westminster parliamentary democracy. The wisdom of political and policy choices made by Parliament in response to social, economic and environmental problems is separate and apart from their constitutionality. Courts do not second-guess the wisdom of Parliament’s choice; rather, they assess the validity of the resulting law and its application and must be mindful of the boundaries between the two. The justiciability inquiry involves a weighing of the appropriateness, as a matter of constitutional judicial policy, of the courts deciding a given issue or instead deferring to the other branches of government (Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604 at 90-91).
[27] The pragmatic consideration arises from the limitations on a court’s ability to fashion and implement remedies. This is a component of the institutional limitation.
[28] No firm criteria for assessing justiciability exist, and the boundaries between justiciable and non-justiciable matters are not always clear. The issue often distills to a single question as to whether the claim has a sufficient legal component upon which a court can adjudicate. Here too, the answer to that question may be obscured by the moral, social or political dimensions of the case that make it inappropriate for a court to decide (Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, 379 D.L.R. (4th) 467 at para. 33 [Tanudjaja]; but compare: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 at 472 [Operation Dismantle]; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at 545-546).
[29] But we do know that claims are not rendered non-justiciable simply because they raise complex or controversial issues. Courts must be flexible in their approach to determining whether a matter is justiciable and consider the context of the claim in question (Highwood at para. 34). On this point, the language of the Supreme Court is unequivocal: “The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it” (Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791 at para. 107 [Chaoulli]).
[30] Courts have not shied away from addressing controversial issues that raise many layered and complex policy questions. Examples readily spring to mind: challenges to legislation reducing access to private medical treatment (Chaoulli); whether the waiting times for surgery infringe section 7 (Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245, 473 D.L.R. (4th) 1); whether the provisions of the Criminal Code, R.S.C. 1985, c. C-46 with regard to prostitution infringe section 7 (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 [Bedford]); access to abortion (R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385); the availability of supervised injection sites to improve the safety of drug use (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 [PHS]); and the effects of prohibitions on physician-assisted dying (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 [Carter]).
[31] Here, the motions judges found that the claims were not justiciable because they would require the Court to adjudicate on broad and diffuse aspects of government conduct, involving matters of economics and foreign and trade policy, under programs administered by various departments. The question of climate change was “controversial” and “political” and therefore not one for the courts.
[32] I do not agree, respectfully, that the claims are not justiciable simply because the question of climate change is complex or because the legislation reflects a political choice on how to address the problem. While the legislation may be controversial, this does not efface the fact that the debate has been crystallized into law; legislative choices have been made. For example, the preamble of the Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186 recognizes that the Government of Canada must, and will, take steps to alleviate the pressures of climate change, stating that “the Government of Canada is committed to achieving Canada’s Nationally Determined Contribution—and increasing it over time—under the Paris Agreement by taking comprehensive action to reduce emissions across all sectors of the economy, accelerate clean economic growth and build resilience to the impacts of climate change”.
[33] Political choice underlies all legislation and some exercises of executive discretion; both are invariably informed by a wide range of public policy considerations. But once the choices are made, the policy trade-offs considered and the legislative response crystallized, the law is not immunized from Charter scrutiny. As the Supreme Court held in PHS, “when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter” (PHS at para. 105). It must not be forgotten that the target of the appellants’ claims is legislation—existing laws, regulatory instruments and Orders in Council.
[34] Matters of public policy are within the exclusive domain of the executive and legislative branches, and are, on their own, demonstrably unsuitable for adjudication. Because of this, where a case engages only the underlying policy, a court will strike a pleading as not justiciable (Sossin, Boundaries of Judicial Review at 267-270). On the other hand, in concurring reasons on a point accepted by the majority, Wilson J. stated that a court cannot relinquish its jurisdiction over an issue merely because it raises a “political question” (Operation Dismantle at 459 and 472). She went on to distinguish, in the justiciability context, pure policy questions from legal questions with some policy aspect to them (Operation Dismantle at 472):
I would conclude, therefore, that if we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to “second guess” the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the Charter to do so.
[35] Public controversy or the political context associated with legislation cannot therefore be a standalone ground to deem the claim non-justiciable (Operation Dismantle at 472), and the “political question” doctrine found in the United States has never been accepted in Canada (D. Geoffrey Cowper & Lorne Sossin, “Does Canada Need a Political Questions Doctrine?” (2002) 16 S.C.L.R. (2d) 343 at 345). The Supreme Court has expressly rejected the doctrine, and, as just noted, when the claim is properly framed as a breach of Charter right (an important caveat and to which I will return), the court has an obligation to decide the matter (Operation Dismantle at 472). One hears in the reasons of the Federal Court a faint echo of the political question doctrine.
[36] As previously described, policy considerations are inherent to all government action, but that fact alone does not insulate the law from judicial scrutiny. What matters in an assessment of justiciability, instead, is the presence of a sufficient legal component or legal anchor to the claim. Justiciability, in the end, asks whether the court can adjudicate the issues against an objective legal standard. In this sense, justiciability analysis requires some understanding of the jurisprudence that underlies the claim, which in turn requires a somewhat probing examination of the substantive allegations of the claim.
[37] Tanudjaja is a good example of the requirement that a claim have a sufficient legal component in order to be justiciable. There, the appellants sought declarations that Ontario’s failure to effectively address the problem of homelessness violated their rights under sections 7 and 15 of the Charter. The appellants challenged no law or application of law in particular—they simply challenged the governments’ overall approach to the social problem. The claims lacked a legal component required for judicial adjudication and therefore were not justiciable (Tanudjaja at paras. 19, 27, 35-56).
[38] Here, in contrast, the appellants link the section 7 deprivation to the failure of Canada to meet its commitments in the Paris Agreement (Nationally Determined Contributions), commitments ratified by Parliament, and hence legally defined, objective standards against which the Charter claims can be assessed. The claims do not seek to tell Canada how to fulfill its commitments. In this regard, the Federal Court mischaracterized the claims when it held the claims were challenges to policy.
[39] Canada relies on Friends of the Earth v. Canada (Governor in Council), 2008 FC 1183, [2009] 3 F.C.R. 201 [Friends of the Earth] as authority for the proposition that the doctrine of justiciability precludes judicial intervention on climate change matters.
[40] In that case, the applicant sought declaratory and mandatory relief in connection with the alleged failures of the Minister of the Environment and the Governor in Council to comply with their duties under the Kyoto Protocol Implementation Act, S.C. 2007, c. 30 (the KPIA). The applicant argued that the Minister was required under the KPIA to prepare a climate change plan that satisfied Canada’s obligations under the Kyoto Protocol, and that the Governor in Council was required to take regulatory action to ensure that Canada would meet its Kyoto Protocol commitments (Friends of the Earth at paras. 3-5).
[41] The judicial review application was dismissed on the basis that it did not raise justiciable issues (Friends of the Earth at paras. 46 and 48). The Federal Court found that the KPIA did not impose duties on either the Minister or the Governor in Council that required strict compliance with the Kyoto Protocol, nor did the relevant portions of the KPIA contemplate an enforcement role for the court (Friends of the Earth at paras. 33-35, 38-45). Mandamus was refused because the Minister’s obligation under the Act was to file a report to Parliament; no public duty was owed, and it was on this basis that the application was dismissed (see, as a recent application of the same principle, Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74, 54 C.E.L.R. (4th) 328).
[42] The Federal Court’s conclusion on justiciability was guided entirely by the content of the KPIA; as the Federal Court noted, “[t]he justiciability of all of these issues is a matter of statutory interpretation directed at identifying Parliamentary intent” (Friends of the Earth at para. 31). Friends of the Earth does not, therefore, stand for the proposition that all claims addressing climate change are inherently non-justiciable; rather, the application was struck on the basis that the Minister’s duties under the KPIA were owed to Parliament and that the legislation did not create a public duty enforceable by mandamus. Neither of these circumstances arise in the present appeals.
[43] To the extent that the Federal Court in Friends of the Earth addressed the substance of the government’s report and its own ability to adjudicate on the government’s degree of compliance with the Kyoto Protocol, the observations were both obiter and hypothetical, no report ever having been prepared.
[44] I also note the decision of the Ontario Superior Court of Justice in Mathur v. Ontario, 2020 ONSC 6918, 42 C.E.L.R. (4th) 124 [Mathur 2020]. There, like here, the underlying issue was a Charter challenge to the adequacy of a government’s response to climate change. The Ontario Superior Court dismissed Ontario’s motion to strike the applicants’ application on the basis of non-justiciability, holding instead that the application had a reasonable prospect of success and that the claim properly challenged specific laws and specific government conduct (Mathur 2020 at paras. 132, 139-140). Neither the complexity nor the controversial nature of the subject matter of the claim rendered it inherently non-justiciable.
[45] Here, the appellants have pled, in the legislation and Orders in Council, an objective legal basis or standard against which section 7 rights can be assessed. There is, therefore, a sufficient legal component to their claims, and the claims satisfy the legitimacy portion of a justiciability analysis. However, this is not a complete answer to the question of whether the appellants’ claims, as pleaded, are justiciable; there remain the questions of institutional competence and remedies.
[46] Both motions judges ruled that the claims failed because they were overly broad and diffuse: they were based on multiple pieces of legislation, prior project approvals by way of Orders in Council, international agreements, domestic policy relating to climate change, and Canada’s participation in industries and activities involving fossil fuels through subsidies, grants and tax measures. In La Rose, the Federal Court also reviewed some of the remedies sought and concluded that they overreached the institutional competence of the Court (La Rose Reasons at paras. 8-10, 40 and 46).
[47] In some cases, remedies sought may be so clearly offside that they taint the proceeding as a whole. Remedies must be capable of enforcement. If a court cannot tailor effective, enforceable remedies to meaningfully address the asserted harms, the claim may not be justiciable.
[48] But remedies, at least at the outset of litigation, are not necessarily determinative of justiciability. For example, declaratory relief is, on occasion, granted but suspended when enforcement is inconsistent with the role of the judiciary in the constitutional framework (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 [Khadr]). More to the point, however, is the fact that this argument, at least as framed before us, glosses over a recurring theme in constitutional jurisprudence; seldom do courts supply the solution when legislation has been found unconstitutional. Declarations are frequently suspended in order to allow the legislature time to craft a constitutionally compliant response (see, for example, Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 722-725; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489 at paras. 60 and 66; Bedford at paras. 165 and 169; Carter at para. 128; Anne M. Turley and Zoe Oxaal, “The Significance of R v. Albashir in the Evolution of Constitutional Remedies” (2023) 108 S.C.L.R. (2d) 139).
[49] The need for caution in characterizing remedies as non-justiciable is reflected in Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316, 480 D.L.R. (4th) 444 [Mathur 2023]. There, the Court found that what constitutes a science-based GHG reduction target and a stable climate system could be established through expert evidence, as they are based on a globally recognized body of science (Mathur 2023 at para. 123). Compare, as well with Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310, 333 A.C.W.S. (3d) 540 where the Court considered what constituted a reasonable wait time for health care, an equally multi-layered, complex melange of financial, medical, policy and management issues (at paras. 8-10, 1736-1806).
[50] There is also a relationship between the question of whether there is a Charter breach and whether the requested remedies are viable. It may be only when the nature, extent and source of the violation is identified that the appropriateness of the remedy can be assessed. As Khadr demonstrates, sometimes there may be no remedy to be enforced, but a declaratory remedy may be granted nonetheless (see also Feldman J.A. in Tanudjaja at para. 85). Declarations may serve to vindicate rights; Khadr is but one example of many (see also Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 81; Operation Dismantle at 457; David Suzuki Foundation v. Canada (Fisheries and Oceans), 2010 FC 1233, [2012] 3 F.C.R. 136 at para. 202, aff’d 2012 FCA 40, [2013] 4 F.C.R. 155).
[51] Even if some of the remedies sought push the boundaries of the court’s competence, a claim should not be characterized, a priori, as non-justiciable. Overly focusing on remedies at the justiciability stage may place “undue and unwise limits” on judicial oversight of the law (Lorne Sossin, “The Unfinished Project of Roncarelli: Justiciability, Discretion and the Limits of the Rule of Law” (2010) 55:3 McGill L.J. 661 at 686). As a practical matter, remedies are often amended in the course of the litigation and judges are required, when granting constitutional remedies, to exercise a principled discretion (Ontario (Attorney General) v. G, 2020 SCC 38, 451 D.L.R. (4th) 541 at paras. 90-99). The remedies must be tailored to the breach, if a breach is ultimately found.
[52] The Federal Court’s perspective on remedies was understandably coloured by the broad and diffuse scope of the claims (La Rose Reasons at para. 50, Misdzi Yikh Reasons at para. 73). For this reason, perhaps, the Court did not consider the declarations sought or assess their viability against the jurisprudence. The Federal Court characterized the remedies as overly prescriptive, but simultaneously as vague and devoid of meaning. These criticisms are, in part, well-deserved. But they do not justify a pre-emptive decision to foreclose the possibility of remedies tailored to the breach.
VI. Public trust doctrine [53] In their statement of claim, the youth appellants assert that Canada has breached its duty to preserve and protect inherently public resources—bodies of water, the air, and the permafrost—so that current and future generations may access, use, and enjoy these resources. They describe Canada’s obligations in this regard as originating from a “public trust doctrine” (youth appellants’ statement of claim at para. 239).
[54] Manson J. concluded that this claim had no reasonable prospect of success as “there [was] no legal foundation to suggest that the public trust doctrine, as described by the [youth appellants], discloses a reasonable cause of action” (La Rose Reasons at para. 87). Manson J. also noted that “the public trust doctrine is a concept that Canadian Courts have consistently failed to recognize” and stated that this doctrine “does not exist in Canadian law” (La Rose Reasons at para. 93).
[55] The youth appellants argue that the doctrine’s lack of prior recognition by Canadian courts does not necessarily indicate that their public trust claims were doomed to fail. Further, they say that the Supreme Court in Canfor expressly left open the possibility that a public trust doctrine could be advanced, and that an extension of the common law in these circumstances would accord with a principled and incremental legal development of the law (Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446 at paras. 116-117, leave to appeal to SCC refused, 36471 (29 October 2015) [Paradis Honey]).
[56] The contours of the public trust doctrine as pleaded by the appellant are imprecise and fluid; the doctrine is described as a trust-like duty, an aspect of the Crown’s parens patriae jurisdiction, a fiduciary obligation and an unwritten constitutional principle. The doctrine is said to impose specific, enforceable obligations on Canada to preserve and protect public resources such as the air, the atmosphere, navigable waters and territorial seas. The doctrine would require Canada to exercise continuous supervision and control over these resources, to protect the public rights to their use and enjoyment and to ensure their integrity for future generations. The youth appellants say that Canada owes these obligations to its citizens, who, as beneficiaries, can enforce the doctrine where Canada has not lived up to its responsibilities.
[57] I disagree that Manson J. erred as alleged by the youth appellants. The motions judge understood the jurisprudence with respect to both motions to strike and the public trust doctrine and applied it correctly.
[58] Manson J.’s conclusion was shaped not by the novelty of the public trust claims (La Rose Reasons at paras. 81-84), but by his analysis of two decisions dealing with public rights vested in the Crown, Canfor and Burns Bog (La Rose Reasons at paras. 88-92). Measuring the youth appellants’ public trust claims against the existing case law, Manson J. identified the claims as resting on an entirely non-existent cause of action and accordingly determined that the claims had no reasonable prospect of success (La Rose Reasons at paras. 92-94, citing Atlantic Lottery at para. 19). I agree with the judge’s reasons.
[59] Canfor establishes that the Crown may bring a tort action as a “representative of the public to enforce the public interest in an unspoiled environment” (Canfor at para. 64). Binnie J. determined that although the Crown was limited to suing in its capacity as a private party as landowner of the damaged forests, the Attorney General may have standing to bring an action on behalf of the general public in a proper case based on the parens patriae responsibilities of the Crown (Canfor at paras. 76 and 81). Binnie J. stated in obiter that this standing would raise