Case name:                      Turp v. Canada (Minister of Justice and Attorney General)

Jurisdiction:                     Canada

Type of claim:                  Cases against specific legislation or policies

Summary of result:        Claim dismissed as non-justiciable.

Judgment final:               Yes

Court instances:

Source of claims:            Statutory law (Kyoto Protocol Implementation Act)

Other constitutional law: separation of powers, democratic principle

Summary of Judgment

Facts and claims of the parties

The Canadian liberal government had signed on to the Kyoto Protocol in 1997 and committed Canada to reduce greenhouse gas emissions by 6% compared to 1990s levels by 2012. The conservative government which came into power in 2006 was opposed to the Kyoto Protocol and did not intend to implement it.

In 2007, the Kyoto Protocol Implementation Act (KPIA) was introduced into Parliament as a private members bill by a liberal MP, and passed against the will of the conservative minority government. The intention of the Act was to force the government to comply with Canada’s obligations under the Kyoto Protocol. However, the government never complied with it.[1]

In 2011 the conservative government officially withdrew from the Kyoto Protocol.

The Applicant, Daniel Turp, a law professor, argues that the withdrawal is unlawful because it is in violation of (1) the KPIA and thereby the principle of the rule of law, (2) the principle of the separation of powers, and (3) the democratic principle, because the government was obliged to consult the House of Commons and the provinces before withdrawing.[2]

The Defendant argues that the withdrawal from international treaties is a matter falling within the competency of the executive branch of government.[3] Furthermore, the Court does not have jurisdiction to declare the withdrawal from the Kyoto Protocol null and void. The only remedy available would be a statement that the withdrawal had been illegal. Such a statement would not have any useful effect, which is why the Court should refuse to rule on the case.^[4]

Federal Court decision

At the outset, the Court rejects the argument by the Defendant that a mere statement of illegality would be useless. “[W]here there is evidence the government has broken a law, a declaration of illegality is not useless, but on the contrary meets the public interest that the law be respected by all.”[5]

However, the Court then goes on to dismiss the claim.

First, the Court analyzes whether the withdrawal from the Kyoto Protocol was in violation of the KPIA. The Court notes that generally, the conduct of foreign affairs and international relations falls exclusively under the executive branch of government and is therefore not reviewable by courts.[6] This would only be different if the KPIA had explicitly or implicitly prohibited the government from withdrawing from the Kyoto Protocol. In this case, the government would be breaching a law. However, the Court finds that this is not the case here, as the KPIA does not impose binding obligations onto the government which could be enforced in court.[7]

For the same reason, the withdrawal was not in violation of the principle of separation of powers. Since the KPIA does not impose binding obligations onto the government, the government did not interfere with powers of Parliament.[8]

Furthermore, the Court finds that the government was not obliged to consult the House of Commons before withdrawing from the Kyoto Protocol.[9]

Finally, the applicant is not in a position to argue that the government should have consulted with the provinces. Such a complaint could only be brought by a province.[10]

[1] This non-compliance of the government with the KPIA was subject to a separate judicial challenge in Friends of the Earth v. Canada.

[2] Para. 13.

[3] Para. 14.

[4] Para. 17.

[5] Para. 17.

[6] Para. 18. The Court does leave open the possibility that the conduct of foreign affairs and international relations may be justiciable if it violates the Canadian Charter of Rights and Freedoms, which is, however, not alleged by the Applicant here.

[7] Paras. 19-26. The Court refers to the judgment in Friends of the Earth v. Canada in which the Federal Court had also found that the KPIA does not impose any binding obligations onto the government that could be enforced in court.

[8] Paras. 27-28.

[9] Para. 31.

[10] Para. 32.