By: Christa Croos, JD Candidate 2021
Lawyers, legal scholars, environmental advocacy groups and affected persons continue to push the legal envelope in Canada through climate litigation, intending to address the causes and consequences of climate change through the courts in instances where governmental and societal inaction has failed us. One such case in Canada is La Rose v Her Majesty the Queen, a lawsuit filed by 15 youth across the country who are facing various adverse impacts of climate change and are challenging the Government of Canada to do more to protect their rights and mitigate these impacts.
The plaintiffs in this claim seek to obtain a declaration that conduct on the part of the Canadian government has unjustifiably infringed their section 7 and section 15 Charter rights – their right to life, liberty, and security of the person as well as their equality rights based on their age, and in some cases, Indigeneity. The plaintiffs argue that the Government of Canada’s conduct “continues to cause, contribute to and allow GHG emissions that are incompatible with a ‘Stable Climate System’”[1] – one that can sustain human life and liberties.
In response, the Government of Canada filed a motion to strike the claim in its entirety, on the basis that the claim was not justiciable and was “political, ideological, and policy-oriented”.[2]
The plaintiffs’ claim was notable because it asked the court to review the overall government response to a particular public policy issue: climate change. At the motion to strike hearing, Mr. Arvay (legal counsel for the plaintiffs) argued on behalf of his clients that an assessment of the ‘network of laws’ is necessary to address the unique causation and response required to take on climate change. He elaborated that government inaction on climate change is death by a thousand cuts, and that previous litigation which has tackled one cut at a time—like challenging the approval of a single fossil fuel project on the basis of climate change-related harm—has failed.
The proposal to assess the impact of the network of laws is based on a relatively simple accounting exercise of the cumulative GHG emissions resulting from those laws. Namely, the emissions from Canada would be assessed alongside the emissions resulting from burning fossil fuels extracted in Canada, regardless of where they are burned, as opposed to the effects of each specific law or state action underpinning these emissions in isolation. Such an assessment would help determine whether the cumulative emissions are within Canada’s fair share of the global carbon budget that would result in a ‘Stable Climate System’.[3] The plaintiffs anticipate that Canada would be found to far exceed its fair share of the global carbon budget, thus endangering the s. 7 and s. 15 rights of the plaintiffs. Therefore, the plaintiffs also sought an order “requiring the defendants to develop and implement an enforceable climate recovery plan that is consistent with Canada’s fair share of the global carbon budget.”[4]
The Government of Canada’s main argument to strike the claim was that it was not justiciable, and asked the court to act as legislators (i.e. to step into a policy-making role). The defendants argued that there is no judicially manageable standard related to the GHG accounting exercise proposed by the plaintiffs that the courts can use to decide whether the government conduct is acceptable or not. They also argued that the breadth of the claim makes it incompatible with the basic rules of Charter analysis, especially with respect to the fact that they were not challenging one or several discrete laws or governmental actions. They characterized the analysis proposed by the plaintiffs as a broad one, akin to a Royal Commission or public inquiry. Finally, the Government of Canada also took issue with the declaratory relief sought by the plaintiffs, alleging that they are not legal remedies.
Another interesting tension that came to the fore in the motion to strike hearing was the discrepancy between the Government of Canada’s public policy stance and their legal stance. Canada argued that a variety of international actors will have to act in coordination to effectively tackle climate change, and thus, Canada should not be mandated to act to reduce emissions because acting alone would have no practical effect. As highlighted by Mr. Arvay in his remarks, this is in stark contrast to their policy stance, in which the current government has communicated that climate action is a priority and that they will be rigorously pursing climate action regardless of what their international counterparts are doing. It also stands in contrast to the Government of Canada’s legal arguments before the Supreme Court of Canada in the reference on the constitutionality of the Greenhouse Gas Pollution Pricing Act, where the Attorney General of Canada argued that a price on carbon was an essential policy tool reflecting Parliament’s commitment to contribute to global efforts to reduce GHG emissions.[5]
Unfortunately, the motion to strike was granted. Justice Manson found that the claim was not justiciable because of (1) “the undue breadth and diffuse nature” of the governmental conduct; and (2) “the inappropriate remedies sought by the Plaintiffs”.
(1) The diffuse nature of the governmental conduct was a significant barrier in Justice Manson’s view because the “undue breadth and diffuse nature of the network … puts Canada’s overall policy choices at issue”[6] in a manner that the courts are not suited to adjudicate. It is noteworthy that Justice Manson explicitly outlined that he did not take issue with a network of laws being challenged and that this was not in itself an issue; rather, the character of the network is the issue. I think this is a curious opinion because the plaintiffs are not asking for a specific policy instrument to be used, rather, they are seeking to have the court declare that the current outcome of the network of laws and actions is unjustifiably infringing Charter rights and that the government should take actions to remedy this outcome.
(2) Justice Manson found that the declaratory relief sought by the plaintiffs will not address the underlying harms created by law or state action, echoing the causation concerns of the government of Canada. Citing Tanudjaja, the court found that a bare declaration that the government is to develop an adequate climate policy would be “so devoid of content as to be effectively meaningless” and that judicial supervision of the adequacy would take the court beyond its institutional capacity.[7]
The plaintiffs intend to challenge this outcome with the hopes that their claim will have its day in court. I hope they will succeed to ensure that future generations’ rights have a chance to be respected and at the very least, a successful appeal of this motion to strike would encourage judicial responsiveness to these types of legal challenges to government (in)action.
[1] Para 6 of 2020 FC 1008
[2] Defendant’s Notice of Motion (Rule 220 Motion), pg 2.
[3] Statement of claim, para 222
[4] Statement of Claim, at para 222.
[5] AG Canada’s Factum, at para 58.
[6] 2020 FC 1008, at para 46.
[7] 2020 FC 100, at paras 53-54.