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Justiciability - Political. La Rose v. Canada
In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.
In these quotes the court extensively considers 'justiciability', here in it's political form: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 CanLII 73 (SCC), [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 CanLII 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 at 472 [Operation Dismantle]; Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [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 CanLII 90 (SCC), [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 CanLII 74 (SCC), [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.
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