Why Should the Government Be Above the Law?

In Friends of the Earth – Les Ami(e)s de la Terre v. Canada (Governor in Council) 2009 FCA 297 [leave to appeal dismissed 2010 CanLII 14720 (S.C.C.)] , the Federal Court of Appeal let the Canadian government get away with open defiance of a statute of the Parliament of Canada,the Kyoto Protocol Implementation Act, 2007 (KPIA).

According to the federal government, its defiance is no business of the courts, because the obligations in the KPIA are “not justiciable”. The Federal Court of Appeal agreed, but with the thinnest of justifications.

This country signed and ratified an international convention on the control of climate change, the Kyoto Protocol. In so doing, Canada accepted obligations to the other countries of the world, which became legally binding when the Protocol came into effect. These obligations required Canada to reduce our greenhouse gas emissions; we have not done so.

The KPIA is a statue which requires the Canadian government to take certain steps to comply with its international obligations under the Protocol:

1. The Minister of the Environment must prepare and publish a Climate Change Plan to “ensure” Canada’s compliance with its obligations under the Protocol (s. 5 KPIA);
2. The Governor in Council must publish proposed regulations for public consultation, with statements setting out anticipated GHG reductions from proposed regulatory changes (KPIA ss 8, 9); and
3. The Governor in Council must then enact, amend or repeal regulations necessary to ensure Canada’s compliance with the Protocol. (KPIA s. 7).

Since the Canadian government chose not to comply with any of these requirements, Friends of the Earth (FOE) filed three applications for judicial review by the Federal Court. The three applications were heard together and dismissed. Justice Barnes ruled that Canada’s obligations under KPIA are non-justiciable, because (in his view) the Act uses permissive language, deals with discretionary matters, and provides an alternative remedy in its reporting requirements. The Court of Appeal agreed, but are these arguments defensible?

The court accepted Canada’s argument that the task of “ensuring” compliance with the Kyoto Protocol would be difficult and complex, involving many political and economic decisions. They were clearly uncomfortable with the, admittedly unusual, fact that the minority Parliament had passed legislation against the will of the executive. They seemed to fear being asked to issue a mandatory order on how to implement the KPIA, a huge political task that the government itself had declined to undertake.

But in doing so, they misunderstood the question before them, and shirked an essential job that the Federal Court was created to do.

A fundamental principle of the Canadian legal system is that everyone, including the government, is governed by the law. A key function of the Federal Court is to enforce this fundamental principle. There is, of course, a balance to be struck between the role of the executive and the role of the judiciary; not every government decision is amenable to judicial review. Justiciability is the principle that courts use to ensure that they decide only clear legal questions; they should not intervene in cases that they lack both the institutional capacity and the moral legitimacy to decide.

The court was not asked to decide whether Canada should comply with the Kyoto Protocol; this decision was made twice by the Canadian Parliament: first in ratifying the Protocol itself, and second in adopting the KPIA. Nor was the court asked to decide how Canada should comply with the Kyoto Protocol; the KPIA leaves his responsibility precisely where it belongs, with the government of Canada in consultation with other interested stakeholders.

The court was asked, instead, to decide three much narrower questions: has Canada complied with the specific obligations set out in sections 5, 7 and 8 of the KPIA? Do Canadian courts have the institutional capacity and the moral legitimacy to determine whether the Government of Canada has complied with s. 5, 7 and 8 of the KPIA?

In my view, these are precisely the sorts of question that our courts do have the capacity and the legitimate right to decide. The doctrine of justiciability is part of a check and balance system that ensures that the government operates within its constitutionally mandated scope. It cannot and should not be invoked to excuse government defiance of a specific federal statute. The rule of law requires governments, above all others, to obey the law. The Federal Court of Appeal should have required our government to comply with the KPIA.

[A fuller version of this article will appear in the Journal of Parliamentary and Political Law.]