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Justiciability - Public Funds. 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 considers a Charter s.15 equality argument, I think essentially resolving it on justiciability 'public funds/cabinet' grounds [para 83]:VIII. Section 15 of the Charter
[76] Climate change is having a dramatic, rapidly unfolding effect on all Canadians and on northern and Indigenous communities in particular. In the GGPPA References, the Supreme Court recognized that climate change has had a “particularly serious effect” on Indigenous peoples and Indigenous territories, “threatening the ability of Indigenous communities in Canada to sustain themselves and maintain their traditional ways of life” (GGPPA References at paras. 11-12, 187, 206). Canada accepts this, noting that “[g]lobal climate change is… not a distant problem, but one that is happening now and that is having very real consequences on people’s lives” (Canada’s memorandum of fact and law in Misdzi Yikh appeal at para. 1). It is also beyond doubt that the burden of addressing the consequences will disproportionately affect Canadian youth.
[77] The question is whether it is reasonably arguable that this reality falls within the scope of section 15. The appellants’ case is that climate change affects them disproportionately and that the legislation is not sufficiently robust to address this inequality. Their case is, therefore, one of adverse effect discrimination and whether the law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground.
[78] Claims under section 15 of the Charter are assessed under a two-part test.
[79] The court is to first determine whether the law or state action creates a distinction based on an enumerated or analogous ground. If the law does not do this on its face, claimants must establish that a law has a disproportionate impact on members of a protected group (Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1 [Fraser] at para. 52). Second, the court is to assess whether the law or state action imposes burdens or denies a benefit in a manner that perpetuates, reinforces, or exacerbates some disadvantage experienced by the group, either systemically or historically (R. v. Sharma, 2022 SCC 39, 420 C.C.C. (3d) 1 at para. 28 [Sharma]; Fraser at paras. 27 and 77).
[80] Claims under section 15 may be directed at the state’s conduct in implementing a law or policy, as well as the law or policy itself (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 at para. 125; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 30 [Withler]; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464 at para. 25 [Alliance]; Fraser at paras. 27 and 50). Where the state has chosen to provide benefits or impose burdens on the general population, the state is obligated to do so in a non-discriminatory manner under section 15.
[81] Section 15 is directed toward substantive equality, and ensures that legal benefits are provided and obligations imposed without discrimination on a protected ground (Alliance at para. 25; Fraser at para. 27). Section 15 does not, however, impose “a freestanding positive obligation on the state to enact benefit schemes to redress social inequalities” (Alliance at para. 42). In addition, the state is free to address inequality incrementally (Sharma at para. 64; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at para. 41 [Auton]; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 at paras. 72-73; Alliance at para. 42).
[82] The adverse or disproportionate effect that climate change is having on the appellants is not the kind of adverse effect that section 15 is to address. I accept the argument that the intergenerational considerations associated with climate change raise profound moral, social and economic questions; but, save as I will discuss later (at paras. 119-125) intergenerational equity is not within the scope of section 15, as the law currently stands.
[83] The underlying rationale for this is rooted in the separation of powers; if courts could adjudicate section 15 claims that allege discrimination caused by future inequalities, the judiciary would effectively be participating in the policy choices around resource allocation, the domain of the legislature and executive (Sharma at para. 63).
[84] I understand the youth appellants’ argument that, as they have no vote or no voice in these decisions, the reach of section 15 ought to be extended. This, however, would be an unprecedented application of section 15, and not the kind of gradual, incremental change by which the law evolves.
[85] Age as a protected ground occupies a unique status, as age is universal: an individual at any given age has personally experienced all earlier ages, and expects to experience later ages. As La Forest J. noted in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 1990 CanLII 60 (SCC), “while we must guard against laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for importing benefits on one age group over another in the development of broad social schemes and in allocating benefits” (at 297).
[86] Choices made by Parliament or the executive will, of necessity, affect different generations differently. Decisions made today with respect to health care spending may, for example, largely benefit older Canadians, or decisions to invest in major infrastructure projects may largely benefit younger generations. Broad policy decisions by a government, such as the degree to which debt should be incurred, will affect different generations differently. As distinct from their section 7 claims, the true nature of the appellants’ equality argument is about how the legislation will affect them when they are older.
[87] Notwithstanding the above, the international legal community is moving towards the recognition of youth climate rights and the promotion of intergenerational equity. A recent report from the United Nations Committee on the Rights of the Child urged states to take immediate action to address environmental degradation and climate change, as they challenge children’s rights to life, survival, and development (General comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change, United Nations Committee on the Rights of the Child, 93rd Sess., U.N. Doc. CRC/C/GC/26 (2023) at paras. 63-67). While Canada has ratified the Convention on the Rights of the Child and the Convention has been used many times by courts in interpreting domestic legislation (see, for example, M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973 at para. 148, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC) at para. 71), this does not yet create a place in the framework under section 15 that would allow the youth appellants’ claim to proceed.
[88] I would therefore uphold the motions judges’ decisions to strike the section 15 claims without leave to amend.
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