Commentary

Reflections on Climate Justice and the Law

Posted on by Tal Schreier

by Carson Cook, Eva Boghosian and Hannah West

As members of the 2023-2024 Environmental Rights Student Working Group at the David Asper Centre for Constitutional Rights, eleven first year students at the University of Toronto Faculty of Law have been researching various legal doctrines, legislation, and case law related to how environmental rights are conceived in Canada, how they can be used/acted upon, and how they might be improved. Their research has covered environmental constitutional litigation like Mathur v Ontario; how Indigenous rights and knowledge interact with environment law; and, legal doctrines from other jurisdictions that provide environmental protection. The outcome of this research will be a guidebook that informs community organizers and activists of the state of environmental rights within Canada.

To take part in the Global Day of Action for Climate Justice, we asked these students to reflect on their research and the potential for climate action within Canada. A common theme, and perhaps a surprising one, was positivity surrounding Canada’s ability to pursue climate action within its legal framework. Though the students identified various issues of implementation, they appreciated finding processes within the Canadian legal system that can support environmental protection and climate action. Students also valued their research as it provided them with an opportunity to learn about other jurisdictions and the processes used internationally that could be adopted within Canada. Though, in addition to issues of implementation, the students noted the legal system only moves in small steps. However, the students noted they felt more empowered to think about furthering climate action with their new knowledge of these environmental legal frameworks.

Another recurring insight from the students was how important education for the general public is for meaningful climate action – highly relevant to the Environmental Rights Working Group’s goal of creating a guidebook for lay-people to understand their legal rights with respect to the environment. As law students and future lawyers, we are in positions of privilege to have the tools and training to research complicated theories and frameworks that greatly affect how climate action is pursued, and we therefore have a duty to help educate those around us. Importantly, the students noted, this education should not simply be providing information, but conducted in a way that empowers people – to build their skills, knowledge, and confidence so that they can work and learn in the environmental space to further change.

Such education builds power for all of us to push for change, as legal professionals or otherwise. This was the final theme from our reflection session with the student researchers – the importance of an analysis of power when working for climate justice. While legal processes can be and have been created to further environmental protection, those processes can be subverted when there is a power imbalance between adversarial parties. While law affects social values, social values also affect the law. The collective power of a community asking for change or participating in decision-making processes is key for climate action to occur. This is not to pin the causes of climate change on individuals, but it is to recognize the agency and power we each hold, and that builds when we work together to tackle otherwise insurmountable problems. The Environmental Rights Working Group has been one small way in which we, as law students, are building power within ourselves, amongst each other, and within our Toronto community.

Carson Cook, Eva Boghosian and Hannah West are JD Candidates at the Faculty of Law and are the Asper Centre Environmental Rights Working Group leaders this year. 

Bill C-59: The Good, the Bad, and Where We’re At

Posted on by Tal Schreier

By Patrick Enright

When Bill C – 51, the Federal Government’s revised Anti-Terrorism Act, was pushed through Parliament following the attacks on Parliament Hill in 2015, the reaction from the public and civil liberties societies was swift. The Canadian Civil Liberties Association challenged key provisions of the Act under the Charter, and Professors Roach and Forcese (among others) wrote numerous articles decrying the law as “radical” and “unbalanced.” It also became a hot topic of debate in what turned out to be a contentious Federal Election, one that saw the Liberals win a surprising majority over Harper’s conservative flagship.

But when the dust settled from the election season, the question loomed large: would the Liberals take any action to reform the new law? At the time, there was reason to be skeptical. The law had received Royal Assent with support from both the Conservative and Liberal parties. And with the election of the U.S. chest-pounder-in-chief, Donald Trump, many thought the Liberals would shy away from anything that might portray them as either soft on terror or weak on national security matters.

So when the Liberals introduced Bill C – 59, An Act Respecting National Security Matters, there was reason to believe it would be a mere nodding attempt to keep a half-hearted campaign promise. In some ways the Bill does disappoint – and the Asper Centre has released a detailed analysis of its shortcomings. But in many ways it is a valiant effort to roll back some of Bill C-51’s glaring excesses.

The most obvious improvement in the legislation is the implementation of a multi-agency review mechanism. The new bill sets up a whole-of-government review committee that can assess and review all national security information (except Cabinet confidences) and produces frequent classified reports to Parliament as well as an annual unclassified report to the public regarding its findings. These provisions remedy a major deficiency in accountability that has been lacking for years in Canada’s national security framework. Until now, each national security agency had different oversight bodies, which could not collaborate with each other, despite the fact that the work of each agency is often intertwined. This created a “siloing” effect, where reviewing bodies could not follow the evidence down whatever rabbit hole it may have led. By contrast, the new “whole of government” mandate means that the entirety of Canada’s national security apparatus can be held accountable for its actions, including the CBSA (Canadian Border Services Agency) which had previously not been subject to any independent review.

The Bill is commendable in other areas as well. For example, Bill C – 51 introduced a new speech offence to the Criminal Code that made it an offence to “advocate or promote a terrorism offence in general.” The provision is breathtaking in scope. It makes it an offence to perform tasks as innocuous as promoting the assistance of designated terrorist groups, advocating for the provision of “material aid” to listed groups, and advocating for the provision of charitable aid to a listed terrorist organization. There were also no defences worked into the provision such as opinions in the furtherance of a religious belief, commentary on matters of public interest, or the articulation of truth.

Bill C – 59, to its credit, limits the scope of this offence to actions that actually “counsel” a terrorist activity. This is important because “counselling” criminal activity has always been a Criminal Code Offence – one that has been upheld as constitutional under the Charter.

All this being said, the Bill is not a model of perfection. The Liberals have come up at least one base short of a legislative home run. Canada’s national security framework remains sorely lacking in the area of privacy protection in that it still permits an enormous amount of sharing of Canadians’ personal information between federal agencies. As of now, the broad collection and sharing of Canadians’ personal information is authorized if the information pertains to acts that might “undermine the security of Canada.”

While this might sound perfectly reasonable, it is in fact alarming when one looks at the definition of what “undermines the security of Canada.” The category includes such unremarkable matters as interference with the economic or financial stability of Canada as well as any effort to “unduly influence” the government of Canada by any “unlawful means.” The term “unlawful,” it should be noted, is not the same thing as “criminal.” Canadians’ private information can be swept up and shared on the grounds that the target of the information had contravened an act of Parliament in an effort to merely “influence” government action (think of violations of the Ontario Labour Relations Act). Bill C-59 does nothing to remedy these deficiencies.

So what has been the progress on Bill C – 59? The Bill is currently being prepared for Second Reading in Committee, so there is still hope that modifications could be made. But there is no guarantee that changes to the bill won’t move in a less happy direction. The Progressive Conservatives, under their new leader Andrew Scheer, have made a habit of taking the Liberals to task on any matter that has the appearance of being “soft on terror,” including the management of returning ISIS fighters and – most controversially – the 10-million-dollar settlement with Omar Khadr. The Conservatives also appear to have taken issue with the restrictions on CSIS’s so-called threat reductions powers. Bill C – 51 made it legal for CSIS agents to take positive steps to reduce national security threats short of causing bodily harm, intruding on sexual integrity or obstructing justice. It also allowed CSIS to seek a warrant from courts that would authorize Charter violations. Bill C – 59 changes this. The Liberal government has reformed these provisions by requiring that all such actions be Charter compliant, and prohibits CSIS agents from using its powers to detain, torture, or damage property to the extent that it endangers life.

These are important changes, but it is not obvious that the Liberals will be able to pass it into law without a fight. For this reason, when it comes to debating the bill in second reading, one hopes that Liberals and Conservatives will come together to strike an appropriate balance between national security matters and rights-preservation.

In other words, that cooler heads might prevail.

Patrick Enright is a 3L JD Candidate at the University of Toronto Faculty of Law and was a 2016 Asper Centre Clinic student.

Ktunaxa Nation: A Lost Opportunity

Posted on by Tal Schreier

By Patrick Enright

 

Indigenous Religion and the Court: A Lost Opportunity to Revise Religious Freedom Under the Charter

Earlier this month, the Supreme Court of Canada delivered its much awaited freedom of religion decision in the case of Ktunaxa Nation Council v British Columbia. Put simply, we could have waited longer. The decision marks a lost opportunity for the Court to have revised its freedom of religion jurisprudence, and is an extraordinarily dismissive analysis for what stands as the first indigenous religion brought under the Charter.

The Ktunaxa Nation Council, the appellants in the case, challenged the BC government’s approval of a ski resort on what is believed to be their sacred territory called “Qat’muk.” It was alleged that, should any construction go forward on the land, the Ktunaxa’s religious rituals would be deprived of any spiritual significance, as the “Great Grizzly Spirit,” who infuses their traditions with meaning, would permanently flee the territory. The case therefore raised the novel issue of whether s 2(a) of the Charter covers so-called “sacred sites,” and if there is any role for government in preserving the spiritual traditions of religious practitioners.

The Court, however, side-stepped all of the difficult questions of the case to simply (and tersely) assert that s 2(a) does not protect the “object” of religious beliefs. As such, it does not protect the (believed) existence of Grizzly Bear Spirt. Full Stop.

On the fascinating question of whether religious practices are intimately connected to religious beliefs themselves? Nothing.

On the issue of whether the recent origin of a religious claim can affect the proportionality analysis on judicial review? Nothing.

On the matter of whether preserving a religious community is more pressing than an individual’s religious belief? Nothing.

On whether the building of a ski resort is a sufficiently pressing objective to override a constitutional right? Nothing.

Instead we were subjected to a mere four paragraphs of analysis, with the Court merely affirming that s 2(a) only covers “beliefs” and the “manifestation” of beliefs, rather than the beliefs themselves.

But this is a senseless distinction. For the Ktunaxa, the manifestation of their beliefs requires that Qat’muk remain undisturbed. There would simply be no point in practicing their faith if the spirit that animates these practices no longer is present. By way of analogy, imagine attending a Christian Mass with the knowledge that Yahweh is no longer listening, or that God has taken a sick day to watch football. There would, alas, be no point in attending such an empty ritual.

Similarly, for the Ktunaxa, their god has been effectively killed by the State’s action in this case; or, as one twitter user suggested, “Nietzsche would have been proud of this decision.”

By this, I do not mean to say that the Ktunaxa should have come out victorious on their appeal – indeed, I think the case was deeply problematic on the facts. But failing to at least find an infringement is to fail to grapple seriously with the intimate connection that indigenous peoples and indigenous religion has with land and land claims.

Only the concurring opinion seems to have understood this. Justice Moldaver’s concurring opinion – in contrast to the majority – is a deeply satisfying, cogent analysis that takes seriously the novelty and gravity of the Ktunaxa’s religious claims. Justice Moldaver’s opinion makes the rather obvious point that manifesting the Ktunaxa’s religious beliefs required that Qat’muk go undisturbed; that indigenous religion requires the preservation of sacred sites; that not all religious beliefs can be framed in terms of protestant religious practices; that the impact on the Ktunaxa’s beliefs is severe; and, ultimately, that the state’s objective in fostering a prosperous tourism market in the province is sufficiently important to uphold the Minister’s proposal.

This analysis is thoughtful. It is sound. And it is just.

As for the majority, the Court could have saved itself 115 unnecessary paragraphs, and hundreds of wasted sentences, by simply stamping the following two words onto their jurisprudential writ:

“Appeal Dismissed.”

Patrick Enright  is a 3L JD Candidate at the University of Toronto and a former Asper Centre Clinic student.

Ktunaxa case summary and further information available on the Supreme Court of Canada’s website here. For further reading on this case, please see University of Toronto Faculty of Law Professor Anna Su’s commentary: A Tale of Two Burdens and Patrick Enright’s previous summary of the Ktunaxa case in our 2017 Asper Centre Outlook Newsletter at page 12.