The Supreme Court of Canada Dismisses FOE’s Leave to Appeal
March 26, 2010
The Supreme Court of Canada will not consider whether the Federal Government has failed to meet it statutory obligations related to the Kyoto Protocol Implementation Act, 2007 (KIPA). This disappointing decision for the applicant, Friends of the Earth, was released on March 25, 2010; Justices LeBel, Deschamps and Cromwell dismissed the leave to appeal application with costs.
The dismissal means that the decision of the Federal Court of Appeal will stand unchallenged. The Court of Appeal agreed with Justice Barnes of the Federal Court’s reasons, finding that there was no judiciable issue to consider, as the issue was political in nature. In essence, finding that accountability in this case was to come through the electorate, not the courts.
Friends of the Earth asked for a judicial declaration (a court-statement) confirming that the government is bound by the KIPA’s requirements and to require the government to comply with it (see the FOE press release).
This case appears suggest that the courts do not take the KIPA or the arguments made by the appellant seriously. Professor Elgie of the University of Ottawa, Faculty of Law was quoted in the Financial Post as saying that this case is not just about “whether Canada must comply with the Kyoto Protocol … but whether Cabinet must follow the will of Parliament. The Federal Court’s decision suggests that it does not, which is very troubling from a democratic and constitutional perspective.” See the Legal Post article for further discussion by Prof. Elgie.
In the lower court, Justice Robert Barnes agreed with the government lawyers, that the KPIA created a system of Parliamentary accountability involving public policy choices that the court should not evaluate. He confirmed that what the court was asked to consider was outside of the jurisdiction of judicial review.
By allowing the Conservative Government to disregard the will of parliament the courts may be weakening the rule of law in this country. The failure of the Supreme Court to take up this case is a lost opportunity for clarity on the role parliament vis-à-vis the role of government. In the meantime, those of us advocating for climate action must pursuing other avenues.
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