As I look at the Google security incident, I realize that if the hacker successfully penetrated a work station on Google's corporate network, could the same technique not be used against a financial institution using the same malicious software? If this is true, then am I correct in assuming that any financial institution is vulnerable to this type of penetration? In a way, is a payment processing service like Google Checkout or Paypal just as vulnerable as the standard Google network? Is it true that web developers still use IE 6 as a test and validation candidate for new applications and website design - to make sure things are backward compatible? If yes, aren't you supposed to sandbox it as much as possible? How did Google miss that?Thanks
msdogfood@hotmail.com
Sunday, January 31, 2010
Saturday, January 30, 2010
The PMO now has the Khadr paradox?
Khadr ruling sees top court clash with Tories
Omar Khadr is shown in an interrogation room at the Guatanamo U.S. Naval Base prison while being question by CSIS, in this image taken from a 2003 surveillance video, release by his Canadian defense team on Tuesday July 15, 2008. The Canadian Press
In a 9-0 ruling, Canada's Supreme Court has found Canada and the U.S. violated the prosioner's rights
Supreme Court won't force Khadr repatriation
Norman Spector: How PM should respond to Khadr decision
Key dates: Omar Khadr timeline
Kirk Makin
From Saturday's Globe and Mail Published on Friday, Jan. 29, 2010 8:42PM EST Last updated on Friday, Jan. 29, 2010 11:20PM EST
A standoff between the Supreme Court of Canada and the federal government over the repatriation of Omar Khadr has thrust the country into uncharted constitutional waters.
In a 9-0 ruling, the court effectively dared the Harper government to ignore its finding that Canada and the United States are violating Mr. Khadr's right to life, liberty and security under the Charter of Rights and Freedoms.
The court denounced the use of sleep deprivation by his U.S. captors to soften up Mr. Khadr when he was a 15-year-old prisoner, and the government's participation in his interrogation, but stopped short of ordering the government to ask the U.S. to send him home.
It found that the rights violation continues because information obtained during illegal interrogations in 2003 and 2004 is still liable to be used against Mr. Khadr in U.S proceedings.
A government is expected to take action when the court rules it has violated someone's rights. The remedy requested by lawyers who brought the case to court on Mr. Khadr's behalf is that Ottawa bring their client home for trial. Past governments have not ignored strong declarations from the highest court in the land.
The Khadr interrogation
Watch video of the Khadr interrogation
View
Yet a statement from Justice Minister Rob Nicholson Friday raised the possibility that the Harper government will refuse to act or that it will give a token response.
“The government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests,' ” Mr. Nicholson said.
He emphasized the gravity of the allegations against Mr. Khadr and noted that the Supreme Court overturned two lower court decisions by finding that the government is not required to ask for Mr. Khadr's return from the U.S. prison at Guantanamo Bay.
In an interview Friday, University of Toronto law professor Sujit Choudhry said the clash of court and government has reached historic proportions.
“It has taken the court where it has never gone before – into the legal black hole of Guantanamo Bay, and the murky world of security and intelligence co-operation between Canada and other countries in the post 9/11 world,” he said. “It has now thrown the issue back to the federal government, which must now act in compliance with the Charter,” Prof. Choudhry said.
He predicted that Mr. Khadr's lawyers will bring another court challenge if Ottawa leaves their client in U.S. hands.
Allan Hutchison, a law professor at York University's Osgoode Hall Law School, agreed that Mr. Khadr will have quick recourse if the Harper government flouts the Supreme Court's declaration.
“The Khadr people must use all available methods to shame the government into following a constitutionally sanctioned course of action,” he said.
The court refrained from issuing a direct order to repatriate Mr. Khadr, reasoning that the fluid state of terrorism proceedings dictates a cautious approach. It said that government officials have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.
But the court showed that a legal fist lies beneath its velvet glove. If the abuse of Mr. Khadr's rights is proven to be continuing, it warned that, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”
Advocates for Mr. Khadr were disappointed Friday, but took encouragement from the clear finding of a continuing rights violation.
The judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.
“Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations,” they said.
“Interrogation of a youth to elicit statements about the most serious criminal charges – while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors – offends the most basic Canadian standards about the treatment of detained youth suspects.”
Since the information obtained in the interrogation sessions could still be used against Mr. Khadr in U.S proceedings, the court said, “the effect of the breaches cannot be said to have been spent.”
Mr. Khadr was severely wounded in a 2002 skirmish in which he is alleged to have thrown a grenade that killed a U.S. Special Forces medic. He was charged with murder and scheduled to go before a Guantanamo Bay military commission.
However, U.S. President Barack Obama effectively shut down the commission system this year. Mr. Khadr remains in Guantanamo.
Federal Court Judge James O'Reilly ruled last year that Canada was complicit in torture that included sleep deprivation and the use of a vicious dog.
The Federal Court of Appeal upheld the ruling by 2-1.
At the Supreme Court hearing in November, federal officials warned the judiciary not to create a foreign-policy nightmare by micromanaging sensitive situations abroad involving Canadians.
“The government has the right to decide what requests should be made, how they should be made, and when they should be made,” federal lawyer Robert Frater said. “The courts are not in the best position to do that.”
While Mr. Khadr faces life in prison if convicted, most legal observers believe that he would go free based on time already served if the Harper government agrees to bring him home for trial.
Omar Khadr is shown in an interrogation room at the Guatanamo U.S. Naval Base prison while being question by CSIS, in this image taken from a 2003 surveillance video, release by his Canadian defense team on Tuesday July 15, 2008. The Canadian Press
In a 9-0 ruling, Canada's Supreme Court has found Canada and the U.S. violated the prosioner's rights
Supreme Court won't force Khadr repatriation
Norman Spector: How PM should respond to Khadr decision
Key dates: Omar Khadr timeline
Kirk Makin
From Saturday's Globe and Mail Published on Friday, Jan. 29, 2010 8:42PM EST Last updated on Friday, Jan. 29, 2010 11:20PM EST
A standoff between the Supreme Court of Canada and the federal government over the repatriation of Omar Khadr has thrust the country into uncharted constitutional waters.
In a 9-0 ruling, the court effectively dared the Harper government to ignore its finding that Canada and the United States are violating Mr. Khadr's right to life, liberty and security under the Charter of Rights and Freedoms.
The court denounced the use of sleep deprivation by his U.S. captors to soften up Mr. Khadr when he was a 15-year-old prisoner, and the government's participation in his interrogation, but stopped short of ordering the government to ask the U.S. to send him home.
It found that the rights violation continues because information obtained during illegal interrogations in 2003 and 2004 is still liable to be used against Mr. Khadr in U.S proceedings.
A government is expected to take action when the court rules it has violated someone's rights. The remedy requested by lawyers who brought the case to court on Mr. Khadr's behalf is that Ottawa bring their client home for trial. Past governments have not ignored strong declarations from the highest court in the land.
The Khadr interrogation
Watch video of the Khadr interrogation
View
Yet a statement from Justice Minister Rob Nicholson Friday raised the possibility that the Harper government will refuse to act or that it will give a token response.
“The government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests,' ” Mr. Nicholson said.
He emphasized the gravity of the allegations against Mr. Khadr and noted that the Supreme Court overturned two lower court decisions by finding that the government is not required to ask for Mr. Khadr's return from the U.S. prison at Guantanamo Bay.
In an interview Friday, University of Toronto law professor Sujit Choudhry said the clash of court and government has reached historic proportions.
“It has taken the court where it has never gone before – into the legal black hole of Guantanamo Bay, and the murky world of security and intelligence co-operation between Canada and other countries in the post 9/11 world,” he said. “It has now thrown the issue back to the federal government, which must now act in compliance with the Charter,” Prof. Choudhry said.
He predicted that Mr. Khadr's lawyers will bring another court challenge if Ottawa leaves their client in U.S. hands.
Allan Hutchison, a law professor at York University's Osgoode Hall Law School, agreed that Mr. Khadr will have quick recourse if the Harper government flouts the Supreme Court's declaration.
“The Khadr people must use all available methods to shame the government into following a constitutionally sanctioned course of action,” he said.
The court refrained from issuing a direct order to repatriate Mr. Khadr, reasoning that the fluid state of terrorism proceedings dictates a cautious approach. It said that government officials have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.
But the court showed that a legal fist lies beneath its velvet glove. If the abuse of Mr. Khadr's rights is proven to be continuing, it warned that, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”
Advocates for Mr. Khadr were disappointed Friday, but took encouragement from the clear finding of a continuing rights violation.
The judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.
“Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations,” they said.
“Interrogation of a youth to elicit statements about the most serious criminal charges – while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors – offends the most basic Canadian standards about the treatment of detained youth suspects.”
Since the information obtained in the interrogation sessions could still be used against Mr. Khadr in U.S proceedings, the court said, “the effect of the breaches cannot be said to have been spent.”
Mr. Khadr was severely wounded in a 2002 skirmish in which he is alleged to have thrown a grenade that killed a U.S. Special Forces medic. He was charged with murder and scheduled to go before a Guantanamo Bay military commission.
However, U.S. President Barack Obama effectively shut down the commission system this year. Mr. Khadr remains in Guantanamo.
Federal Court Judge James O'Reilly ruled last year that Canada was complicit in torture that included sleep deprivation and the use of a vicious dog.
The Federal Court of Appeal upheld the ruling by 2-1.
At the Supreme Court hearing in November, federal officials warned the judiciary not to create a foreign-policy nightmare by micromanaging sensitive situations abroad involving Canadians.
“The government has the right to decide what requests should be made, how they should be made, and when they should be made,” federal lawyer Robert Frater said. “The courts are not in the best position to do that.”
While Mr. Khadr faces life in prison if convicted, most legal observers believe that he would go free based on time already served if the Harper government agrees to bring him home for trial.
Friday, January 29, 2010
SUPREME COURT OF CANADA put Prime Minister in a box see Citation: Canada (Prime Minister) v. Khadr, 2010 SCC 3 .
Source: http://scc.lexum.umontreal.ca/en/2010/2010scc3/2010scc3.html
SUPREME COURT OF CANADA
Citation: Canada (Prime Minister) v. Khadr, 2010 SCC 3
Date: 20100129
Docket: 33289
Between:
Prime Minister of Canada, Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police
Appellants
and
Omar Ahmed Khadr
Respondent
‑ and ‑
Amnesty International (Canadian Section, English Branch),
Human Rights Watch, University of Toronto, Faculty of Law ‑ International
Human Rights Program, David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children and Justice for Children and Youth,
British Columbia Civil Liberties Association, Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et libertés de la Faculté
de droit de l’Université Laval, Canadian Civil Liberties Association and
National Council For the Protection of Canadians Abroad
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 48)
The Court
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
Canada (Prime Minister) v. Khadr
Prime Minister of Canada,
Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police Appellants
v.
Omar Ahmed Khadr Respondent
and
Amnesty International (Canadian Section, English Branch),
Human Rights Watch, University of Toronto, Faculty of Law ‑
International Human Rights Program,
David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children,
Justice for Children and Youth,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et
libertés de la Faculté de droit de l’Université Laval,
Canadian Civil Liberties Association and
National Council for the Protection of Canadians Abroad Interveners
Indexed as: Canada (Prime Minister) v. Khadr
Neutral citation: 2010 SCC 3.
File No.: 33289.
2009: November 13; 2010: January 29.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Application — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Whether process in place at Guantanamo Bay at that time violated Canada’s international human rights obligations — Whether Canadian Charter of Rights and Freedoms applies to conduct of Canadian state officials alleged to have breached detainee’s constitutional rights.
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Whether conduct of Canadian officials deprived detainee of his right to liberty and security of person — If so, whether deprivation of detainee’s right is in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7.
Constitutional law — Charter of Rights — Remedy — Request for repatriation — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Violation of detainee’s right to liberty and security of person guaranteed by Canadian Charter of Rights and Freedoms — Detainee seeking order that Canada request his repatriation from Guantanamo Bay — Whether remedy sought is just and appropriate in circumstances — Canadian Charter of Rights and Freedoms, s. 24(1).
Courts — Jurisdiction — Crown prerogative over foreign relations — Courts’ power to review and intervene on matters of foreign affairs to ensure constitutionality of executive action.
K, a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, when he was a minor. In 2004, he was charged with war crimes, but the U.S. trial is still pending. In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned K on matters connected to the charges pending against him, and shared the product of these interviews with U.S. authorities. In 2004, a DFAIT official interviewed K again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation. In 2008, in Khadr v. Canada (“Khadr 2008”), this Court held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered the Canadian government to disclose to K the transcripts of the interviews he had given to CSIS and DFAIT, which it did. After repeated requests by K that the Canadian government seek his repatriation, the Prime Minister announced his decision not to do so. K then applied to the Federal Court for judicial review, alleging that the decision violated his rights under s. 7 of the Charter. The Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of the Charter and ordered the government to request his repatriation. The Federal Court of Appeal upheld the order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that K had been subjected to the “frequent flyer program”.
Held: The appeal should be allowed in part.
Canada actively participated in a process contrary to its international human rights obligations and contributed to K’s ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by s. 7 of the Charter, not in accordance with the principles of fundamental justice. Though the process to which K is subject has changed, his claim is based upon the same underlying series of events considered in Khadr 2008. As held in that case, the Charter applies to the participation of Canadian officials in a regime later found to be in violation of fundamental rights protected by international law. There is a sufficient connection between the government’s participation in the illegal process and the deprivation of K’s liberty and security of the person. While the U.S. is the primary source of the deprivation, it is reasonable to infer from the uncontradicted evidence before the Court that the statements taken by Canadian officials are contributing to K’s continued detention. The deprivation of K’s right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
K is entitled to a remedy under s. 24(1) of the Charter. The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial. While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny. Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government. Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.
Cases Cited
Applied: Khadr v. Canada, 2008 SCC 28, [2008] 2 S.C.R. 125; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; referred to: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; United States of America v. Dynar, [1997] 2 S.C.R. 461; Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); Boumediene v. Bush, 128 S. Ct. 2229 (2008); Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; United States of America v. Jawad, Military Commission, September 24, 2008, online: www.defense.gov/news/Ruling%20D-008.pdf; R. v. Collins, [1987] 1 S.C.R. 265; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269; Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228; Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Gamble, [1988] 2 S.C.R. 595.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, s. 10.
Detainee Treatment Act of 2005, Pub. L. 109‑148, 119 Stat. 2739.
Military Commissions Act of 2006, Pub. L. 109‑366, 120 Stat. 2600.
Authors Cited
Canada. Security Intelligence Review Committee. CSIS’s Role in the Matter of Omar Khadr. Ottawa: The Committee, 2009.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (loose‑leaf updated 2008, release 1).
APPEAL from a judgment of the Federal Court of Appeal (Nadon, Evans and Sharlow JJ.A.), 2009 FCA 246, 310 D.L.R. (4th) 462, 393 N.R. 1, [2009] F.C.J. No. 893 (QL), 2009 CarswellNat 2364, affirming a decision of O’Reilly J., 2009 FC 405, 341 F.T.R. 300, 188 C.R.R. (2d) 342, [2009] F.C.J. No. 462 (QL), 2009 CarswellNat 1206. Appeal allowed in part.
Robert J. Frater, Doreen C. Mueller and Jeffrey G. Johnston, for the appellants.
Nathan J. Whitling and Dennis Edney, for the respondent.
Sacha R. Paul, Vanessa Gruben and Michael Bossin, for the intervener Amnesty International (Canadian Section, English Branch).
John Norris, Brydie Bethell and Audrey Macklin, for the interveners Human Rights Watch, the University of Toronto, Faculty of Law ‑ International Human Rights Program and the David Asper Centre for Constitutional Rights.
Emily Chan and Martha Mackinnon, for the interveners the Canadian Coalition for the Rights of Children and Justice for Children and Youth.
Sujit Choudry and Joseph J. Arvay, Q.C., for the intervener the British Columbia Civil Liberties Association.
Brian H. Greenspan, for the intervener the Criminal Lawyers’ Association (Ontario).
Lorne Waldman and Jacqueline Swaisland, for the intervener the Canadian Bar Association.
Simon V. Potter, Pascal Paradis, Sylvie Champagne and Fannie Lafontaine, for the interveners Lawyers Without Borders Canada, Barreau du Québec and Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval.
Marlys A. Edwardh, Adriel Weaver and Jessica Orkin, for the intervener the Canadian Civil Liberties Association.
Dean Peroff, Chris MacLeod and H. Scott Fairley, for the intervener the National Council for the Protection of Canadians Abroad.
The following is the judgment delivered by
The Court —
I. Introduction
[1] Omar Khadr, a Canadian citizen, has been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada.
[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
II. Background
[3] Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces in Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
[4] On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
[5] In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505, at para. 46. In 2008, this Court ordered the Canadian government to disclose to Mr. Khadr the transcripts of the interviews he had given to CSIS and DFAIT in Guantanamo Bay, under s. 7 of the Charter: Khadr v. Canada, 2008 SCC 28, [2008] 2 S.C.R. 125 (“Khadr 2008”).
[6] Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada: in March 2005 during a Canadian consular visit; on December 15, 2005, when a welfare report noted that “[Mr. Khadr] wants his government to bring him back home” (Report on Welfare Visit, Exhibit “L” to Affidavit of Sean Robertson, December 15, 2005 (J.R., vol. IV, at p. 534)); and in a formal written request through counsel on July 28, 2008.
[7] The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008, during a media interview. The Prime Minister provided the following response to a journalist’s question, posed in French, regarding whether the government would seek repatriation:
[TRANSLATION] The answer is no, as I said the former Government, and our Government with the notification of the Minister of Justice had considered all these issues and the situation remains the same.…We keep on looking for [assurances] of good treatment of Mr. Khadr.
(http://watch.ctv.ca/news/clip65783#clip65783, at 2'3"; referred to in Affidavit of April Bedard, August 8, 2008 (J.R., vol. II, at pp. 131-32))
[8] On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation (Notice of Application filed by the respondent, August 8, 2008 (J.R., vol. II, at p. 113)). He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[9] After reviewing the history of Mr. Khadr’s detention and applicable principles of Canadian and international law, O’Reilly J. concluded that in these special circumstances, Canada has a “duty to protect” Mr. Khadr (2009 FC 405, 341 F.T.R. 300). He found that “[t]he ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter” (para. 92). Also, he held that “[t]o mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable” (para. 92).
[10] The majority judgment of the Federal Court of Appeal (per Evans and Sharlow JJ.A.) upheld O’Reilly J.’s order, but defined the s. 7 breach more narrowly. The majority of the Court of Appeal found that it arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the “frequent flyer program”, characterized by the majority as involving cruel and abusive treatment contrary to the principles of fundamental justice: 2009 FCA 246, 310 D.L.R. (4th) 462. Dissenting, Nadon J.A. reviewed the many steps the government had taken on Mr. Khadr’s behalf and held that since the Constitution conferred jurisdiction over foreign affairs on the executive branch of government, the remedy sought was beyond the power of the courts to grant.
III. The Issues
[11] Mr. Khadr argues that the government has breached his rights under s. 7 of the Charter, and that the appropriate remedy for this breach is an order that the government request the United States to return him to Canada.
[12] Mr. Khadr does not suggest that the government is obliged to request the repatriation of all Canadian citizens held abroad in suspect circumstances. Rather, his contention is that the conduct of the government of Canada in connection with his detention by the U.S. military in Guantanamo Bay, and in particular Canada’s collaboration with the U.S. government in 2003 and 2004, violated his rights under the Charter, and requires as a remedy that the government now request his return to Canada. The issues that flow from this claim may be summarized as follows:
A. Was There a Breach of Section 7 of the Charter?
1. Does the Charter apply to the conduct of Canadian state officials alleged to have infringed Mr. Khadr’s s. 7 Charter rights?
2. If so, does the conduct of the Canadian government deprive Mr. Khadr of the right to life, liberty or security of the person?
3. If so, does the deprivation accord with the principles of fundamental justice?
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
[13] We will consider each of these issues in turn.
A. Was There a Breach of Section 7 of the Charter?
1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials Alleged to Have Infringed Mr. Khadr’s Section 7 Charter Rights?
[14] As a general rule, Canadians abroad are bound by the law of the country in which they find themselves and cannot avail themselves of their rights under the Charter. International customary law and the principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials operating outside of Canada: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 48, per LeBel J., citing United States of America v. Dynar, [1997] 2 S.C.R. 461, at para. 123. The jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms: Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.
[15] The question before us, then, is whether the rule against the extraterritorial application of the Charter prevents the Charter from applying to the actions of Canadian officials at Guantanamo Bay.
[16] This question was addressed in Khadr 2008, in which this Court held that the Charter applied to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of their interviews over to U.S. authorities. This Court held, at para. 26, that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay”, given holdings of the Supreme Court of the United States that the military commission regime then in place constituted a clear violation of fundamental human rights protected by international law: see Khadr 2008, at para. 24, Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). The principles of fundamental justice thus required the Canadian officials who had interrogated Mr. Khadr to disclose to him the contents of the statements he had given them. The Canadian government complied with this Court’s order.
[17] We note that the regime under which Mr. Khadr is currently detained has changed significantly in recent years. The U.S. Congress has legislated and the U.S. courts have acted with the aim of bringing the military processes at Guantanamo Bay in line with international law. (The Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2739, prohibited inhumane treatment of detainees and required interrogations to be performed according to the Army field manual. The Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600, attempted to legalize the Guantanamo regime after the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld. However, on June 12, 2008, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the U.S. Supreme Court held that Guantanamo Bay detainees have a constitutional right to habeas corpus, and struck down the provisions of the Military Commissions Act of 2006 that suspended that right.)
[18] Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.
2. Does the Conduct of the Canadian Government Deprive Mr. Khadr of the Right to Life, Liberty or Security of the Person?
[19] The United States is holding Mr. Khadr for the purpose of trying him on charges of war crimes. The United States is thus the primary source of the deprivation of Mr. Khadr’s liberty and security of the person. However, the allegation on which his claim rests is that Canada has also contributed to his past and continuing deprivation of liberty. To satisfy the requirements of s. 7, as stated by this Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, there must be “a sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected” (para. 54).
[20] The record suggests that the interviews conducted by CSIS and DFAIT provided significant evidence in relation to these charges. During the February and September 2003 interrogations, CSIS officials repeatedly questioned Mr. Khadr about the central events at issue in his prosecution, extracting statements from him that could potentially prove inculpatory in the U.S. proceedings against him (CSIS Document, Exhibit “U” to Affidavit of Lt. Cdr. William Kuebler, November 7, 2003 (J.R., vol. II, at p. 280); Interview Summary, Exhibit “AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at p. 289); Interview Summary, Exhibit “BB” to Affidavit of Lt. Cdr. William Kuebler, February 17, 2003 (J.R., vol. III, at p. 292); Interview Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April 20, 2004 (J.R., vol. III, at p. 296)). A report of the Security Intelligence Review Committee titled CSIS’s Role in the Matter of Omar Khadr (July 8, 2009), further indicated that CSIS assessed the interrogations of Mr. Khadr as being “highly successful, as evidenced by the quality of intelligence information” elicited from Mr. Khadr (p. 13). These statements were shared with U.S. authorities and were summarized in U.S. investigative reports (Report of Investigative Activity, Exhibit “AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at pp. 289 ff.)). Pursuant to the relaxed rules of evidence under the U.S. Military Commissions Act of 2006, Mr. Khadr’s statements to Canadian officials are potentially admissible against him in the U.S. proceedings, notwithstanding the oppressive circumstances under which they were obtained: see United States of America v. Mohammed Jawad, Military Commission, September 24, 2008, D-008 Ruling on defense Motion to Dismiss — Torture of detainee (online: http://www.defense.gov/news/Ruling%20D‑008.pdf ). The above interrogations also provided the context for the March 2004 interrogation, when a DFAIT official, knowing that Mr. Khadr had been subjected to the “frequent flyer program” to make him less resistant to interrogations, nevertheless proceeded with the interrogation of Mr. Khadr (Interview Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April 20, 2004 (J.R., vol. III, at p. 296)).
[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
[22] We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
[23] The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound. In R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46, the Court (Abella J. for the majority) restated the criteria for identifying a new principle of fundamental justice in the following manner:
(1) It must be a legal principle.
(2) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.
(3) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12). The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[26] We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
[27] In previous proceedings (Khadr 2008), Mr. Khadr obtained the remedy of disclosure of the material gathered by Canadian officials against him through the interviews at Guantanamo Bay. The issue on this appeal is whether the breach of s. 7 of the Charter entitles Mr. Khadr to the remedy of an order that Canada request of the United States that he be returned to Canada. Two questions arise at this stage: (1) Is the remedy sought sufficiently connected to the breach? and (2) Is the remedy sought precluded by the fact that it touches on the Crown prerogative power over foreign affairs?
[28] The judge at first instance held that the remedy sought was open to him. The Federal Court of Appeal held that he did not abuse his remedial discretion. On the basis of our answer to the second of the foregoing questions, we conclude that the trial judge, on the record before us, erred in the exercise of his discretion in granting the remedy sought.
[29] First, is the remedy sought sufficiently connected to the breach? We have concluded that the Canadian government breached Mr. Khadr’s s. 7 rights in 2003 and 2004 through its participation in the then-illegal military regime at Guantanamo Bay. The question at this point is whether the remedy now being sought — an order that the Canadian government ask the United States to return Mr. Khadr to Canada — is appropriate and just in the circumstances.
[30] An appropriate and just remedy is “one that meaningfully vindicates the rights and freedoms of the claimants”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55. The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings. In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held. The evidence before us suggests that the material produced was relevant and useful. There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights.
[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past. But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future. The impact of the breaches is thus perpetuated into the present. When past acts violate present liberties, a present remedy may be required.
[32] We conclude that the necessary connection between the breaches of s. 7 and the remedy sought has been established for the purpose of these judicial review proceedings.
[33] Second, is the remedy sought precluded by the fact that it touches on the Crown prerogative over foreign affairs? A connection between the remedy and the breach is not the only consideration. As stated in Doucet-Boudreau, an appropriate and just remedy is also one that “must employ means that are legitimate within the framework of our constitutional democracy” (para. 56) and must be a “judicial one which vindicates the right while invoking the function and powers of a court” (para. 57). The government argues that courts have no power under the Constitution of Canada to require the executive branch of government to do anything in the area of foreign policy. It submits that the decision not to request the repatriation of Mr. Khadr falls directly within the prerogative powers of the Crown to conduct foreign relations, including the right to speak freely with a foreign state on all such matters: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 1‑19.
[34] The prerogative power is the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, at p. 272, per Duff C.J., quoting A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915), at p. 420. It is a limited source of non‑statutory administrative power accorded by the common law to the Crown: Hogg, at p. 1-17.
[35] The prerogative power over foreign affairs has not been displaced by s. 10 of the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, and continues to be exercised by the federal government. The Crown prerogative in foreign affairs includes the making of representations to a foreign government: Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.). We therefore agree with O’Reilly J.’s implicit finding (paras. 39, 40 and 49) that the decision not to request Mr. Khadr’s repatriation was made in the exercise of the prerogative over foreign relations.
[36] In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter (Operation Dismantle) or other constitutional norms (Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539).
[37] The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283.
[38] Having concluded that the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure the constitutionality of executive action, the final question is whether O’Reilly J. misdirected himself in exercising that power in the circumstances of this case (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 15; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117‑18). (In fairness to the trial judge, we note that the government proposed no alternative (trial judge’s reasons, at para. 78).) If the record and legal principle support his decision, deference requires we not interfere. However, in our view that is not the case.
[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.
[40] As discussed, the conduct of foreign affairs lies with the executive branch of government. The courts, however, are charged with adjudicating the claims of individuals who claim that their Charter rights have been or will be violated by the exercise of the government’s discretionary powers: Operation Dismantle.
[41] In some situations, courts may give specific directions to the executive branch of the government on matters touching foreign policy. For example, in Burns, the Court held that it would offend s. 7 to extradite a fugitive from Canada without seeking and obtaining assurances from the requesting state that the death penalty would not be imposed. The Court gave due weight to the fact that seeking and obtaining those assurances were matters of Canadian foreign relations. Nevertheless, it ordered that the government seek them.
[42] The specific facts in Burns justified a more specific remedy. The fugitives were under the control of Canadian officials. It was clear that assurances would provide effective protection against the prospective Charter breaches: it was entirely within Canada’s power to protect the fugitives against possible execution. Moreover, the Court noted that no public purpose would be served by extradition without assurances that would not be substantially served by extradition with assurances, and that there was nothing to suggest that seeking such assurances would undermine Canada’s good relations with other states: Burns, at paras. 125 and 136.
[43] The present case differs from Burns. Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court.
[44] This brings us to our second concern: the inadequacy of the record. The record before us gives a necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr. As observed by Chaskalson C.J. in Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452: “The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal” (para. 77). It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.
[45] Though Mr. Khadr has not been moved from Guantanamo Bay in over seven years, his legal predicament continues to evolve. During the hearing of this appeal, we were advised by counsel that the U.S. Department of Justice had decided that Mr. Khadr will continue to face trial by military commission, though other Guantanamo detainees will now be tried in a federal court in New York. How this latest development will affect Mr. Khadr’s situation and any ongoing negotiations between the United States and Canada over his possible repatriation is unknown. But it signals caution in the exercise of the Court’s remedial jurisdiction.
[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is a discretionary remedy: Operation Dismantle, at p. 481, citing Solosky v. The Queen, [1980] 1 S.C.R. 821. It has been recognized by this Court as “an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, [1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. Such is the case here.
[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.
IV. Conclusion
[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.
Appeal allowed in part with costs to the respondent.
Solicitor for the appellants: Department of Justice, Ottawa.
Solicitors for the respondent: Parlee McLaws LLP, Edmonton.
Solicitors for the intervener Amnesty International (Canadian Section, English Branch): Thompson Dorfman Sweatman LLP, Winnipeg.
Solicitors for the interveners Human Rights Watch, the University of Toronto, Faculty of Law ‑ International Human Rights Program and David Asper Centre for Constitutional Rights: John Norris, Brydie Bethell and Audrey Macklin, Toronto.
Solicitor for the interveners the Canadian Coalition for the Rights of Children and Justice for Children and Youth: Justice for Children and Youth Services, Toronto.
Solicitors for the intervener the British Columbia Civil Liberties Association: Arvay Finlay, Vancouver.
Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Greenspan Humphrey Lavine, Toronto.
Solicitors for the intervener the Canadian Bar Association: Waldman & Associates, Toronto.
Solicitors for the interveners Lawyers Without Borders Canada, Barreau du Québec and Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval: McCarthy Tétrault, Montréal.
Solicitors for the intervener the Canadian Civil Liberties Association: Marlys Edwardh Barristers Professional Corporation, Toronto.
Solicitors for the intervener the National Council for the Protection of Canadians Abroad: Theall Group, Toronto.
SUPREME COURT OF CANADA
Citation: Canada (Prime Minister) v. Khadr, 2010 SCC 3
Date: 20100129
Docket: 33289
Between:
Prime Minister of Canada, Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police
Appellants
and
Omar Ahmed Khadr
Respondent
‑ and ‑
Amnesty International (Canadian Section, English Branch),
Human Rights Watch, University of Toronto, Faculty of Law ‑ International
Human Rights Program, David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children and Justice for Children and Youth,
British Columbia Civil Liberties Association, Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et libertés de la Faculté
de droit de l’Université Laval, Canadian Civil Liberties Association and
National Council For the Protection of Canadians Abroad
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 48)
The Court
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
Canada (Prime Minister) v. Khadr
Prime Minister of Canada,
Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police Appellants
v.
Omar Ahmed Khadr Respondent
and
Amnesty International (Canadian Section, English Branch),
Human Rights Watch, University of Toronto, Faculty of Law ‑
International Human Rights Program,
David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children,
Justice for Children and Youth,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et
libertés de la Faculté de droit de l’Université Laval,
Canadian Civil Liberties Association and
National Council for the Protection of Canadians Abroad Interveners
Indexed as: Canada (Prime Minister) v. Khadr
Neutral citation: 2010 SCC 3.
File No.: 33289.
2009: November 13; 2010: January 29.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Application — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Whether process in place at Guantanamo Bay at that time violated Canada’s international human rights obligations — Whether Canadian Charter of Rights and Freedoms applies to conduct of Canadian state officials alleged to have breached detainee’s constitutional rights.
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Whether conduct of Canadian officials deprived detainee of his right to liberty and security of person — If so, whether deprivation of detainee’s right is in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7.
Constitutional law — Charter of Rights — Remedy — Request for repatriation — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Violation of detainee’s right to liberty and security of person guaranteed by Canadian Charter of Rights and Freedoms — Detainee seeking order that Canada request his repatriation from Guantanamo Bay — Whether remedy sought is just and appropriate in circumstances — Canadian Charter of Rights and Freedoms, s. 24(1).
Courts — Jurisdiction — Crown prerogative over foreign relations — Courts’ power to review and intervene on matters of foreign affairs to ensure constitutionality of executive action.
K, a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, when he was a minor. In 2004, he was charged with war crimes, but the U.S. trial is still pending. In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned K on matters connected to the charges pending against him, and shared the product of these interviews with U.S. authorities. In 2004, a DFAIT official interviewed K again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation. In 2008, in Khadr v. Canada (“Khadr 2008”), this Court held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered the Canadian government to disclose to K the transcripts of the interviews he had given to CSIS and DFAIT, which it did. After repeated requests by K that the Canadian government seek his repatriation, the Prime Minister announced his decision not to do so. K then applied to the Federal Court for judicial review, alleging that the decision violated his rights under s. 7 of the Charter. The Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of the Charter and ordered the government to request his repatriation. The Federal Court of Appeal upheld the order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that K had been subjected to the “frequent flyer program”.
Held: The appeal should be allowed in part.
Canada actively participated in a process contrary to its international human rights obligations and contributed to K’s ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by s. 7 of the Charter, not in accordance with the principles of fundamental justice. Though the process to which K is subject has changed, his claim is based upon the same underlying series of events considered in Khadr 2008. As held in that case, the Charter applies to the participation of Canadian officials in a regime later found to be in violation of fundamental rights protected by international law. There is a sufficient connection between the government’s participation in the illegal process and the deprivation of K’s liberty and security of the person. While the U.S. is the primary source of the deprivation, it is reasonable to infer from the uncontradicted evidence before the Court that the statements taken by Canadian officials are contributing to K’s continued detention. The deprivation of K’s right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
K is entitled to a remedy under s. 24(1) of the Charter. The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial. While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny. Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government. Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.
Cases Cited
Applied: Khadr v. Canada, 2008 SCC 28, [2008] 2 S.C.R. 125; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; referred to: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; United States of America v. Dynar, [1997] 2 S.C.R. 461; Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); Boumediene v. Bush, 128 S. Ct. 2229 (2008); Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; United States of America v. Jawad, Military Commission, September 24, 2008, online: www.defense.gov/news/Ruling%20D-008.pdf; R. v. Collins, [1987] 1 S.C.R. 265; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269; Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228; Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Gamble, [1988] 2 S.C.R. 595.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, s. 10.
Detainee Treatment Act of 2005, Pub. L. 109‑148, 119 Stat. 2739.
Military Commissions Act of 2006, Pub. L. 109‑366, 120 Stat. 2600.
Authors Cited
Canada. Security Intelligence Review Committee. CSIS’s Role in the Matter of Omar Khadr. Ottawa: The Committee, 2009.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (loose‑leaf updated 2008, release 1).
APPEAL from a judgment of the Federal Court of Appeal (Nadon, Evans and Sharlow JJ.A.), 2009 FCA 246, 310 D.L.R. (4th) 462, 393 N.R. 1, [2009] F.C.J. No. 893 (QL), 2009 CarswellNat 2364, affirming a decision of O’Reilly J., 2009 FC 405, 341 F.T.R. 300, 188 C.R.R. (2d) 342, [2009] F.C.J. No. 462 (QL), 2009 CarswellNat 1206. Appeal allowed in part.
Robert J. Frater, Doreen C. Mueller and Jeffrey G. Johnston, for the appellants.
Nathan J. Whitling and Dennis Edney, for the respondent.
Sacha R. Paul, Vanessa Gruben and Michael Bossin, for the intervener Amnesty International (Canadian Section, English Branch).
John Norris, Brydie Bethell and Audrey Macklin, for the interveners Human Rights Watch, the University of Toronto, Faculty of Law ‑ International Human Rights Program and the David Asper Centre for Constitutional Rights.
Emily Chan and Martha Mackinnon, for the interveners the Canadian Coalition for the Rights of Children and Justice for Children and Youth.
Sujit Choudry and Joseph J. Arvay, Q.C., for the intervener the British Columbia Civil Liberties Association.
Brian H. Greenspan, for the intervener the Criminal Lawyers’ Association (Ontario).
Lorne Waldman and Jacqueline Swaisland, for the intervener the Canadian Bar Association.
Simon V. Potter, Pascal Paradis, Sylvie Champagne and Fannie Lafontaine, for the interveners Lawyers Without Borders Canada, Barreau du Québec and Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval.
Marlys A. Edwardh, Adriel Weaver and Jessica Orkin, for the intervener the Canadian Civil Liberties Association.
Dean Peroff, Chris MacLeod and H. Scott Fairley, for the intervener the National Council for the Protection of Canadians Abroad.
The following is the judgment delivered by
The Court —
I. Introduction
[1] Omar Khadr, a Canadian citizen, has been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada.
[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
II. Background
[3] Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces in Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
[4] On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
[5] In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505, at para. 46. In 2008, this Court ordered the Canadian government to disclose to Mr. Khadr the transcripts of the interviews he had given to CSIS and DFAIT in Guantanamo Bay, under s. 7 of the Charter: Khadr v. Canada, 2008 SCC 28, [2008] 2 S.C.R. 125 (“Khadr 2008”).
[6] Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada: in March 2005 during a Canadian consular visit; on December 15, 2005, when a welfare report noted that “[Mr. Khadr] wants his government to bring him back home” (Report on Welfare Visit, Exhibit “L” to Affidavit of Sean Robertson, December 15, 2005 (J.R., vol. IV, at p. 534)); and in a formal written request through counsel on July 28, 2008.
[7] The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008, during a media interview. The Prime Minister provided the following response to a journalist’s question, posed in French, regarding whether the government would seek repatriation:
[TRANSLATION] The answer is no, as I said the former Government, and our Government with the notification of the Minister of Justice had considered all these issues and the situation remains the same.…We keep on looking for [assurances] of good treatment of Mr. Khadr.
(http://watch.ctv.ca/news/clip65783#clip65783, at 2'3"; referred to in Affidavit of April Bedard, August 8, 2008 (J.R., vol. II, at pp. 131-32))
[8] On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation (Notice of Application filed by the respondent, August 8, 2008 (J.R., vol. II, at p. 113)). He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[9] After reviewing the history of Mr. Khadr’s detention and applicable principles of Canadian and international law, O’Reilly J. concluded that in these special circumstances, Canada has a “duty to protect” Mr. Khadr (2009 FC 405, 341 F.T.R. 300). He found that “[t]he ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter” (para. 92). Also, he held that “[t]o mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable” (para. 92).
[10] The majority judgment of the Federal Court of Appeal (per Evans and Sharlow JJ.A.) upheld O’Reilly J.’s order, but defined the s. 7 breach more narrowly. The majority of the Court of Appeal found that it arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the “frequent flyer program”, characterized by the majority as involving cruel and abusive treatment contrary to the principles of fundamental justice: 2009 FCA 246, 310 D.L.R. (4th) 462. Dissenting, Nadon J.A. reviewed the many steps the government had taken on Mr. Khadr’s behalf and held that since the Constitution conferred jurisdiction over foreign affairs on the executive branch of government, the remedy sought was beyond the power of the courts to grant.
III. The Issues
[11] Mr. Khadr argues that the government has breached his rights under s. 7 of the Charter, and that the appropriate remedy for this breach is an order that the government request the United States to return him to Canada.
[12] Mr. Khadr does not suggest that the government is obliged to request the repatriation of all Canadian citizens held abroad in suspect circumstances. Rather, his contention is that the conduct of the government of Canada in connection with his detention by the U.S. military in Guantanamo Bay, and in particular Canada’s collaboration with the U.S. government in 2003 and 2004, violated his rights under the Charter, and requires as a remedy that the government now request his return to Canada. The issues that flow from this claim may be summarized as follows:
A. Was There a Breach of Section 7 of the Charter?
1. Does the Charter apply to the conduct of Canadian state officials alleged to have infringed Mr. Khadr’s s. 7 Charter rights?
2. If so, does the conduct of the Canadian government deprive Mr. Khadr of the right to life, liberty or security of the person?
3. If so, does the deprivation accord with the principles of fundamental justice?
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
[13] We will consider each of these issues in turn.
A. Was There a Breach of Section 7 of the Charter?
1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials Alleged to Have Infringed Mr. Khadr’s Section 7 Charter Rights?
[14] As a general rule, Canadians abroad are bound by the law of the country in which they find themselves and cannot avail themselves of their rights under the Charter. International customary law and the principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials operating outside of Canada: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 48, per LeBel J., citing United States of America v. Dynar, [1997] 2 S.C.R. 461, at para. 123. The jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms: Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.
[15] The question before us, then, is whether the rule against the extraterritorial application of the Charter prevents the Charter from applying to the actions of Canadian officials at Guantanamo Bay.
[16] This question was addressed in Khadr 2008, in which this Court held that the Charter applied to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of their interviews over to U.S. authorities. This Court held, at para. 26, that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay”, given holdings of the Supreme Court of the United States that the military commission regime then in place constituted a clear violation of fundamental human rights protected by international law: see Khadr 2008, at para. 24, Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). The principles of fundamental justice thus required the Canadian officials who had interrogated Mr. Khadr to disclose to him the contents of the statements he had given them. The Canadian government complied with this Court’s order.
[17] We note that the regime under which Mr. Khadr is currently detained has changed significantly in recent years. The U.S. Congress has legislated and the U.S. courts have acted with the aim of bringing the military processes at Guantanamo Bay in line with international law. (The Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2739, prohibited inhumane treatment of detainees and required interrogations to be performed according to the Army field manual. The Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600, attempted to legalize the Guantanamo regime after the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld. However, on June 12, 2008, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the U.S. Supreme Court held that Guantanamo Bay detainees have a constitutional right to habeas corpus, and struck down the provisions of the Military Commissions Act of 2006 that suspended that right.)
[18] Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.
2. Does the Conduct of the Canadian Government Deprive Mr. Khadr of the Right to Life, Liberty or Security of the Person?
[19] The United States is holding Mr. Khadr for the purpose of trying him on charges of war crimes. The United States is thus the primary source of the deprivation of Mr. Khadr’s liberty and security of the person. However, the allegation on which his claim rests is that Canada has also contributed to his past and continuing deprivation of liberty. To satisfy the requirements of s. 7, as stated by this Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, there must be “a sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected” (para. 54).
[20] The record suggests that the interviews conducted by CSIS and DFAIT provided significant evidence in relation to these charges. During the February and September 2003 interrogations, CSIS officials repeatedly questioned Mr. Khadr about the central events at issue in his prosecution, extracting statements from him that could potentially prove inculpatory in the U.S. proceedings against him (CSIS Document, Exhibit “U” to Affidavit of Lt. Cdr. William Kuebler, November 7, 2003 (J.R., vol. II, at p. 280); Interview Summary, Exhibit “AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at p. 289); Interview Summary, Exhibit “BB” to Affidavit of Lt. Cdr. William Kuebler, February 17, 2003 (J.R., vol. III, at p. 292); Interview Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April 20, 2004 (J.R., vol. III, at p. 296)). A report of the Security Intelligence Review Committee titled CSIS’s Role in the Matter of Omar Khadr (July 8, 2009), further indicated that CSIS assessed the interrogations of Mr. Khadr as being “highly successful, as evidenced by the quality of intelligence information” elicited from Mr. Khadr (p. 13). These statements were shared with U.S. authorities and were summarized in U.S. investigative reports (Report of Investigative Activity, Exhibit “AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at pp. 289 ff.)). Pursuant to the relaxed rules of evidence under the U.S. Military Commissions Act of 2006, Mr. Khadr’s statements to Canadian officials are potentially admissible against him in the U.S. proceedings, notwithstanding the oppressive circumstances under which they were obtained: see United States of America v. Mohammed Jawad, Military Commission, September 24, 2008, D-008 Ruling on defense Motion to Dismiss — Torture of detainee (online: http://www.defense.gov/news/Ruling%20D‑008.pdf ). The above interrogations also provided the context for the March 2004 interrogation, when a DFAIT official, knowing that Mr. Khadr had been subjected to the “frequent flyer program” to make him less resistant to interrogations, nevertheless proceeded with the interrogation of Mr. Khadr (Interview Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April 20, 2004 (J.R., vol. III, at p. 296)).
[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
[22] We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
[23] The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound. In R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46, the Court (Abella J. for the majority) restated the criteria for identifying a new principle of fundamental justice in the following manner:
(1) It must be a legal principle.
(2) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.
(3) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12). The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[26] We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
[27] In previous proceedings (Khadr 2008), Mr. Khadr obtained the remedy of disclosure of the material gathered by Canadian officials against him through the interviews at Guantanamo Bay. The issue on this appeal is whether the breach of s. 7 of the Charter entitles Mr. Khadr to the remedy of an order that Canada request of the United States that he be returned to Canada. Two questions arise at this stage: (1) Is the remedy sought sufficiently connected to the breach? and (2) Is the remedy sought precluded by the fact that it touches on the Crown prerogative power over foreign affairs?
[28] The judge at first instance held that the remedy sought was open to him. The Federal Court of Appeal held that he did not abuse his remedial discretion. On the basis of our answer to the second of the foregoing questions, we conclude that the trial judge, on the record before us, erred in the exercise of his discretion in granting the remedy sought.
[29] First, is the remedy sought sufficiently connected to the breach? We have concluded that the Canadian government breached Mr. Khadr’s s. 7 rights in 2003 and 2004 through its participation in the then-illegal military regime at Guantanamo Bay. The question at this point is whether the remedy now being sought — an order that the Canadian government ask the United States to return Mr. Khadr to Canada — is appropriate and just in the circumstances.
[30] An appropriate and just remedy is “one that meaningfully vindicates the rights and freedoms of the claimants”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55. The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings. In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held. The evidence before us suggests that the material produced was relevant and useful. There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights.
[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past. But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future. The impact of the breaches is thus perpetuated into the present. When past acts violate present liberties, a present remedy may be required.
[32] We conclude that the necessary connection between the breaches of s. 7 and the remedy sought has been established for the purpose of these judicial review proceedings.
[33] Second, is the remedy sought precluded by the fact that it touches on the Crown prerogative over foreign affairs? A connection between the remedy and the breach is not the only consideration. As stated in Doucet-Boudreau, an appropriate and just remedy is also one that “must employ means that are legitimate within the framework of our constitutional democracy” (para. 56) and must be a “judicial one which vindicates the right while invoking the function and powers of a court” (para. 57). The government argues that courts have no power under the Constitution of Canada to require the executive branch of government to do anything in the area of foreign policy. It submits that the decision not to request the repatriation of Mr. Khadr falls directly within the prerogative powers of the Crown to conduct foreign relations, including the right to speak freely with a foreign state on all such matters: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 1‑19.
[34] The prerogative power is the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, at p. 272, per Duff C.J., quoting A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915), at p. 420. It is a limited source of non‑statutory administrative power accorded by the common law to the Crown: Hogg, at p. 1-17.
[35] The prerogative power over foreign affairs has not been displaced by s. 10 of the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, and continues to be exercised by the federal government. The Crown prerogative in foreign affairs includes the making of representations to a foreign government: Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.). We therefore agree with O’Reilly J.’s implicit finding (paras. 39, 40 and 49) that the decision not to request Mr. Khadr’s repatriation was made in the exercise of the prerogative over foreign relations.
[36] In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter (Operation Dismantle) or other constitutional norms (Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539).
[37] The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283.
[38] Having concluded that the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure the constitutionality of executive action, the final question is whether O’Reilly J. misdirected himself in exercising that power in the circumstances of this case (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 15; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117‑18). (In fairness to the trial judge, we note that the government proposed no alternative (trial judge’s reasons, at para. 78).) If the record and legal principle support his decision, deference requires we not interfere. However, in our view that is not the case.
[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.
[40] As discussed, the conduct of foreign affairs lies with the executive branch of government. The courts, however, are charged with adjudicating the claims of individuals who claim that their Charter rights have been or will be violated by the exercise of the government’s discretionary powers: Operation Dismantle.
[41] In some situations, courts may give specific directions to the executive branch of the government on matters touching foreign policy. For example, in Burns, the Court held that it would offend s. 7 to extradite a fugitive from Canada without seeking and obtaining assurances from the requesting state that the death penalty would not be imposed. The Court gave due weight to the fact that seeking and obtaining those assurances were matters of Canadian foreign relations. Nevertheless, it ordered that the government seek them.
[42] The specific facts in Burns justified a more specific remedy. The fugitives were under the control of Canadian officials. It was clear that assurances would provide effective protection against the prospective Charter breaches: it was entirely within Canada’s power to protect the fugitives against possible execution. Moreover, the Court noted that no public purpose would be served by extradition without assurances that would not be substantially served by extradition with assurances, and that there was nothing to suggest that seeking such assurances would undermine Canada’s good relations with other states: Burns, at paras. 125 and 136.
[43] The present case differs from Burns. Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court.
[44] This brings us to our second concern: the inadequacy of the record. The record before us gives a necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr. As observed by Chaskalson C.J. in Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452: “The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal” (para. 77). It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.
[45] Though Mr. Khadr has not been moved from Guantanamo Bay in over seven years, his legal predicament continues to evolve. During the hearing of this appeal, we were advised by counsel that the U.S. Department of Justice had decided that Mr. Khadr will continue to face trial by military commission, though other Guantanamo detainees will now be tried in a federal court in New York. How this latest development will affect Mr. Khadr’s situation and any ongoing negotiations between the United States and Canada over his possible repatriation is unknown. But it signals caution in the exercise of the Court’s remedial jurisdiction.
[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is a discretionary remedy: Operation Dismantle, at p. 481, citing Solosky v. The Queen, [1980] 1 S.C.R. 821. It has been recognized by this Court as “an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, [1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. Such is the case here.
[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.
IV. Conclusion
[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.
Appeal allowed in part with costs to the respondent.
Solicitor for the appellants: Department of Justice, Ottawa.
Solicitors for the respondent: Parlee McLaws LLP, Edmonton.
Solicitors for the intervener Amnesty International (Canadian Section, English Branch): Thompson Dorfman Sweatman LLP, Winnipeg.
Solicitors for the interveners Human Rights Watch, the University of Toronto, Faculty of Law ‑ International Human Rights Program and David Asper Centre for Constitutional Rights: John Norris, Brydie Bethell and Audrey Macklin, Toronto.
Solicitor for the interveners the Canadian Coalition for the Rights of Children and Justice for Children and Youth: Justice for Children and Youth Services, Toronto.
Solicitors for the intervener the British Columbia Civil Liberties Association: Arvay Finlay, Vancouver.
Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Greenspan Humphrey Lavine, Toronto.
Solicitors for the intervener the Canadian Bar Association: Waldman & Associates, Toronto.
Solicitors for the interveners Lawyers Without Borders Canada, Barreau du Québec and Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval: McCarthy Tétrault, Montréal.
Solicitors for the intervener the Canadian Civil Liberties Association: Marlys Edwardh Barristers Professional Corporation, Toronto.
Solicitors for the intervener the National Council for the Protection of Canadians Abroad: Theall Group, Toronto.
Thursday, January 28, 2010
Supreme Court to rule on Khadr Friday ... that is going to be interesting!
OTTAWA -- The Supreme Court of Canada will decide on Friday whether the Harper government must ask the United States to return Omar Khadr to the country.
The bench reserved its decision last November in a government appeal to overturn rulings in the Federal Court and the Federal Court of Appeal which ordered Ottawa to ask the U.S. for Khadr's return.
Khadr, a 23-year-old native of Toronto, has been detained at the U.S. military compound at Guantanamo Bay for more than seven years on five charges, including murder as a war crime, for allegedly throwing a grenade that killed U. S. army medic Christopher Speer during a shootout in Afghanistan in July 2002.
Chief Justice Beverley McLachlin has acknowledged that Khadr "suffered terribly" in detention at Guantanamo Bay, but she also questioned whether the court should venture into unchartered territory by ordering the government to seek his return.
"How is demanding or ordering repatriation going to fix that in the past?" asked McLachlin in November, asserting that remedies are not normally handed out at large, but reserved as specific fixes to problems.
At the time, federal lawyer Rob Frater cautioned the Supreme Court against overstepping its authority by overruling a political decision to let the U.S. justice system handle Khadr as it sees fit.
Khadr's lawyer, Nathan Whitling, told the Supreme Court that the government has a duty to seek Khadr's repatriation because it has violated several principles of international law that obligate Canada to protect children and child soldiers and to repudiate torture.
U.S. officials have announced that Khadr would face a military tribunal for his alleged crimes and he was expected to be transferred to a prison facility in Illinois.Read more: http://www.nationalpost.com/news/story.html?id=2482931#ixzz0dsemxh8o The National Post is now on Facebook. Join our fan community today.
The bench reserved its decision last November in a government appeal to overturn rulings in the Federal Court and the Federal Court of Appeal which ordered Ottawa to ask the U.S. for Khadr's return.
Khadr, a 23-year-old native of Toronto, has been detained at the U.S. military compound at Guantanamo Bay for more than seven years on five charges, including murder as a war crime, for allegedly throwing a grenade that killed U. S. army medic Christopher Speer during a shootout in Afghanistan in July 2002.
Chief Justice Beverley McLachlin has acknowledged that Khadr "suffered terribly" in detention at Guantanamo Bay, but she also questioned whether the court should venture into unchartered territory by ordering the government to seek his return.
"How is demanding or ordering repatriation going to fix that in the past?" asked McLachlin in November, asserting that remedies are not normally handed out at large, but reserved as specific fixes to problems.
At the time, federal lawyer Rob Frater cautioned the Supreme Court against overstepping its authority by overruling a political decision to let the U.S. justice system handle Khadr as it sees fit.
Khadr's lawyer, Nathan Whitling, told the Supreme Court that the government has a duty to seek Khadr's repatriation because it has violated several principles of international law that obligate Canada to protect children and child soldiers and to repudiate torture.
U.S. officials have announced that Khadr would face a military tribunal for his alleged crimes and he was expected to be transferred to a prison facility in Illinois.Read more: http://www.nationalpost.com/news/story.html?id=2482931#ixzz0dsemxh8o The National Post is now on Facebook. Join our fan community today.
Wednesday, January 27, 2010
lets keep Canadians Against Proroguing Parliament going!!.
Name:
Canadians Against Proroguing Parliament
Category:
Organizations - Political Organizations
Description:
Find out about activities/rallies in your communityvisit www.noprorogue.ca orhttp://www.facebook.com/home.php#/event.php?eid=227662474562&index=1A group for Canadians to voice their concerns about prorogation and work towards making a better Canada.On December 30th, Prime Minister Stephen Harper prorogued parliament, effectively shutting down our democratic institutions for the sake of political expediency. The group started with a very simple idea: Canadians contacting their Members of Parliament and requesting that they return to Parliament Hill on January 25th when parliament was supposed to resume. What a difference we've made. Many MPs have listened and they will be returning to serve the interests of the Canadian people.What do we do now? We need to keep the pressure on the Prime Minister and our MPs to recognize that there needs to be changes in Ottawa. First and foremost: prorogation. As it stands, the decision to call prorogation is at the sole discretion of the Prime Minister. While proroguing is typically done to signal the end of the parliamentary session, this most recent case has shown that the power can be abused. If you've already written to your MP, do it again and let them know what kinds of changes you want to see. Should we impose limits on when prorogation might be called? Should it be put before a vote in the house of commons? Don't be shy, you can find your MP's contact information here:http://canada.gc.ca/directories-repertoires/direct-eng.html#mpWe've built tremendous momentum over the past few weeks, Ottawa is watching and listening. This is our chance to re-write the rules and bring about serious change in the way our country is run. Write your MP, get involved locally and become a politically engaged Canadian!SAMPLE LETTERDear,As you are aware, the majority of Canadians are opposed to this previous prorogation of our government. I am writing to you to request that you and your colleagues in Parliament Hill take immediate action in addressing this issue. I would like to see legislation introduced limiting the power of the Prime Minister to ensure that this doesn't happen again. I thank you very much for your time and look forward to updates on your progress. Sincerely, POSTING GUIDELINESThese guidelines were drafted up in reference to the Facebook terms of use.1. No spamming: The wall changes over quickly, and you are invited to repost occationally, but please do not spam it with identical messages.2. No advertising: This group is non-partisan, so no solicitations for donations to political parties. Feel free to encourage people to donate, but do not specify a political party. Advertising includes posting advertisements in the video forum, but you can post links to ads for the purpose of comment.3. No obscene/hate messages: Please refrain from posting obscene material or especially hateful or threatening messages about any individual or group.If you see messages that violate these guidelines, please use the report function, which will allow the neutral, third-party Facebook administrators to evaluate. The group administrators also reserves the right to delete material which violates these guidelines. Effort will be made to contact posters before a deletion is made, but cannot in each case.LIGNES DIRECTRICES DE PUBLICATIONCes lignes directrices ont été rédigées en référence aux termes d'utilisation Facebook.1. Aucun spam. Le babillard change rapidement et vous êtes invités à republier occasionnellement. Par contre, s'il vous plait ne faite pas republier avec un message identiques.2. Aucune publicité. Ce groupe est non partisan, alors aucune solicitations pour des donations aux partis politiques est tolérées. Sentez-vous libre d'encourager des gens à donner mais sans spécifier un parti politique. La publicité inclut des publication dans le forum vidéo mais vous avez droit de publier des liens vers des publicités pour fin de commentaire.3. Aucun message obscène ou haineux. S'il vous plait, retenez-vous de publier du contenu obscène,particulièrement haineux ou des messages de menace au sujet d'un individu ou un groupe.Si vous voyez des messages qui violent ces lignes directrices, s'il vous plait, utiliser la fonction de signalement qui permettra à un tiers partie neutre, l'admistrateur Facebook, d'en évaluer la pertinence. L'administrateur du groupe se réserve aussi le droit de supprimer le contenu qui violent ces lignes directrices. Des effort seront fait pour contacter la personne ayant publier un tel contenu avant une suppression dans le meilleurs des cas sans obligation de notre part. (read less)
Find out about activities/rallies in your communityvisit www.noprorogue.ca orhttp://www.facebook.com/home.php#/event.php?eid=227662474562&index=1A group for Canadians to voice their concerns about prorogation and work towards making a better Canada.On December 30th, Prime Minister Stephen Harper prorogued parliament, effectively shutting down our democratic institutions for the sake of political expediency. The group started with a very simple idea: Canadians contacting their Members of... (read more)
Privacy Type:
Open: All content is public.
Canadians Against Proroguing Parliament
Category:
Organizations - Political Organizations
Description:
Find out about activities/rallies in your communityvisit www.noprorogue.ca orhttp://www.facebook.com/home.php#/event.php?eid=227662474562&index=1A group for Canadians to voice their concerns about prorogation and work towards making a better Canada.On December 30th, Prime Minister Stephen Harper prorogued parliament, effectively shutting down our democratic institutions for the sake of political expediency. The group started with a very simple idea: Canadians contacting their Members of Parliament and requesting that they return to Parliament Hill on January 25th when parliament was supposed to resume. What a difference we've made. Many MPs have listened and they will be returning to serve the interests of the Canadian people.What do we do now? We need to keep the pressure on the Prime Minister and our MPs to recognize that there needs to be changes in Ottawa. First and foremost: prorogation. As it stands, the decision to call prorogation is at the sole discretion of the Prime Minister. While proroguing is typically done to signal the end of the parliamentary session, this most recent case has shown that the power can be abused. If you've already written to your MP, do it again and let them know what kinds of changes you want to see. Should we impose limits on when prorogation might be called? Should it be put before a vote in the house of commons? Don't be shy, you can find your MP's contact information here:http://canada.gc.ca/directories-repertoires/direct-eng.html#mpWe've built tremendous momentum over the past few weeks, Ottawa is watching and listening. This is our chance to re-write the rules and bring about serious change in the way our country is run. Write your MP, get involved locally and become a politically engaged Canadian!SAMPLE LETTERDear
Find out about activities/rallies in your communityvisit www.noprorogue.ca orhttp://www.facebook.com/home.php#/event.php?eid=227662474562&index=1A group for Canadians to voice their concerns about prorogation and work towards making a better Canada.On December 30th, Prime Minister Stephen Harper prorogued parliament, effectively shutting down our democratic institutions for the sake of political expediency. The group started with a very simple idea: Canadians contacting their Members of... (read more)
Privacy Type:
Open: All content is public.
Sunday, January 24, 2010
Girlfriend to Wife "Upgrade"
Dear Tech Support:
Last year I upgraded from Girlfriend 7.0 to Wife 1.0. I soon noticed that
the new program began unexpected child processing that took up a lot of
space and valuable resources. No mention of this was included with the
product information. In addition, Wife 1.0 installed itself into all other
programs and now launches during system initialization, where it monitors
all other system activity.
Applications such as Poker Night 10.3, Football 5.0, Hunting and Fishing
7.5, and Racing 3.6 no longer run, crashing the system whenever selected. I
can't seem to keep Wife 1.0 in the background while attempting to run my
favorite applications. I'm thinking about going back to Girlfriend 7.0, but
the uninstall doesn't work on Wife1.0.
Please help!!!!!! Thanks, A Troubled User.
REPLY:
Dear Troubled User:
This is a very common problem that men complain about. It is due to a
primary misconception. Many people upgrade from Girlfriend 7.0 to Wife 1.0,
thinking that it is merely a Utilities and Entertainment program.
Wife 1.0 is an OPERATING SYSTEM and is designed by its Creator to run
EVERYTHING!!!! It is also impossible to delete Wife 1.0 and to return to
Girlfriend 7.0. Hidden operating systems files cause Girlfriend 7.0 to emulate
Wife 1.0, so nothing is gained. It is impossible to uninstall,
delete, or purge the program files from the system once installed.
You cannot go back to Girlfriend 7.0 because Wife 1.0 is designed to not
allow this. Some have tried Girlfriend 8.0 or Wife 2.0 but end up with more
problems than in the original system. Look in your Wife 1.0 manual under
"Warnings--Alimony/Child Support." I recommend that you
keep Wife 1.0 and work on improving the situation. I suggest installing the
background application Yes Dear to alleviate software augmentation.
Having installed Wife 1.0 myself, I also suggest that you read the entire
section regarding 'General Partnership Faults' (GPFs). You must assume joint
responsibility for any faults and problems that occur, regardless of their
cause.
You will also find that GPFs are cyclical. The best course of action is to
enter the command C:\APOLOGIZE. Avoid excessive use of C:\YESDEAR because
ultimately you will have to give the APOLOGIZE command before the system
will return to normal anyway.
Remember the system will run smoothly as long as you share the blame for all
GPFs. Wife 1.0 is a great program, but it tends to be very high maintenance.
Wife 1.0 comes with several support programs, such as Clean and Sweep
3.0, Cook It 1.5 (which replaces Burn It 1.0), and Do Bills 4.2. You must,
however, be very careful how you use these programs. Improper use will cause
the system to launch the program Nag Nag 9.5. Once this happens, the only way
to improve the performance of Wife 1.0 is to purchase additional software.
I recommend Flowers 2.1 and Diamonds 5.0 should this happen.
WARNING!!!!! DO NOT, under any circumstances, install Secretary With Short
Skirt 3.3. This application is not supported by Wife 1.0 and will cause
irreversible damage to the operating system
Last year I upgraded from Girlfriend 7.0 to Wife 1.0. I soon noticed that
the new program began unexpected child processing that took up a lot of
space and valuable resources. No mention of this was included with the
product information. In addition, Wife 1.0 installed itself into all other
programs and now launches during system initialization, where it monitors
all other system activity.
Applications such as Poker Night 10.3, Football 5.0, Hunting and Fishing
7.5, and Racing 3.6 no longer run, crashing the system whenever selected. I
can't seem to keep Wife 1.0 in the background while attempting to run my
favorite applications. I'm thinking about going back to Girlfriend 7.0, but
the uninstall doesn't work on Wife1.0.
Please help!!!!!! Thanks, A Troubled User.
REPLY:
Dear Troubled User:
This is a very common problem that men complain about. It is due to a
primary misconception. Many people upgrade from Girlfriend 7.0 to Wife 1.0,
thinking that it is merely a Utilities and Entertainment program.
Wife 1.0 is an OPERATING SYSTEM and is designed by its Creator to run
EVERYTHING!!!! It is also impossible to delete Wife 1.0 and to return to
Girlfriend 7.0. Hidden operating systems files cause Girlfriend 7.0 to emulate
Wife 1.0, so nothing is gained. It is impossible to uninstall,
delete, or purge the program files from the system once installed.
You cannot go back to Girlfriend 7.0 because Wife 1.0 is designed to not
allow this. Some have tried Girlfriend 8.0 or Wife 2.0 but end up with more
problems than in the original system. Look in your Wife 1.0 manual under
"Warnings--Alimony/Child Support." I recommend that you
keep Wife 1.0 and work on improving the situation. I suggest installing the
background application Yes Dear to alleviate software augmentation.
Having installed Wife 1.0 myself, I also suggest that you read the entire
section regarding 'General Partnership Faults' (GPFs). You must assume joint
responsibility for any faults and problems that occur, regardless of their
cause.
You will also find that GPFs are cyclical. The best course of action is to
enter the command C:\APOLOGIZE. Avoid excessive use of C:\YESDEAR because
ultimately you will have to give the APOLOGIZE command before the system
will return to normal anyway.
Remember the system will run smoothly as long as you share the blame for all
GPFs. Wife 1.0 is a great program, but it tends to be very high maintenance.
Wife 1.0 comes with several support programs, such as Clean and Sweep
3.0, Cook It 1.5 (which replaces Burn It 1.0), and Do Bills 4.2. You must,
however, be very careful how you use these programs. Improper use will cause
the system to launch the program Nag Nag 9.5. Once this happens, the only way
to improve the performance of Wife 1.0 is to purchase additional software.
I recommend Flowers 2.1 and Diamonds 5.0 should this happen.
WARNING!!!!! DO NOT, under any circumstances, install Secretary With Short
Skirt 3.3. This application is not supported by Wife 1.0 and will cause
irreversible damage to the operating system
Friday, January 22, 2010
IPhone Bings Google = Apple brand damage
The Internet is abuzz with the possibility that Apple might be changing the default search provider on all newly purchased IPhones. The rumor is it will change from Google to Microsoft's Bing search engine. I have never been much of a fan of the IPhone and this is yet another reason to not like it. Microsoft and Apple were former enemies and now they are making strange bedfellows. From Apple's perspective, I do get it... after all Google is making it's own new phone called the Nexus One and the Android operating system for phones. However, the IPhone is marketed to high and medium income users who are technologically savvy. These are the same people who do not like Microsoft and because of that don't want to use Bing. Now they will find their phones search engine will be set to their nemesis. This is exactly how you damage a brand as any geek from the 90's will remember the old PC v Mac debate. As strange as the idea may seem, people were so passionate on both sides that to suggest one or the other brand is better would be akin to committing treason. In today's case of the IPhone, switching search engines is a good way to cause mutiny in some of the user base. The very reason they purchased an IPhone is to stay away from companies such as Microsoft. This may encourage some to switch to the Palm OS device or RIM's Blackberry, the Android phone from HTC by Google or the Nexus hand set from Google. Apple, you're supposed to grow your market not shrink it! This is not how you do it. It's better to keep Google a friend in the long run as they usually go for the jugular.
Thursday, January 21, 2010
Mining Watch Canada & Red Chris Development Company Ltd. and BCMetals Corporation win in SUPREME COURT OF CANADA.
Source: http://scc.lexum.umontreal.ca/en/2010/2010scc2/2010scc2.html
SUPREME COURT OF CANADA
Citation: Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2
Date: 20100121
Docket: 32797
Between:
MiningWatch Canada
Appellant
and
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada
Respondents
And Between:
MiningWatch Canada
Appellant
and
Red Chris Development Company Ltd. and
BCMetals Corporation
Respondents
‑ and ‑
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense
Interveners
Coram: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 53)
Rothstein J. (Binnie, LeBel, Fish, Abella, Charron and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
miningwatch canada v. canada
MiningWatch Canada Appellant
v.
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada Respondents
- and -
MiningWatch Canada Appellant
v.
Red Chris Development Company Ltd. and
BCMetals Corporation Respondents
and
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense Interveners
Indexed as: MiningWatch Canada v. Canada (Fisheries and Oceans)
Neutral citation: 2010 SCC 2.
File No.: 32797.
2009: October 16; 2010: January 21.
Present: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Environmental law — Federal environmental assessment process — Comprehensive study — Scope of project — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Whether environmental assessment should have proceeded by way of screening or comprehensive study — Whether federal environmental assessment track is determined by project as proposed by proponent or by discretionary scoping decision of responsible authority — Meaning of the word “project” — Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 15, 21.
Administrative law — Judicial review — Remedy — Federal environmental assessment process — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Public interest litigant filing application for judicial review — Substantive decisions made by responsible authority not challenged — Judicial review brought as test case to determine federal government’s obligations under s. 21 of Canadian Environmental Assessment Act — Federal Court setting aside decision to proceed by way of screening, quashing decision to issue permits and approvals to proceed with the project and prohibiting issuance of such permits and approvals until completion of comprehensive study — Whether Federal Court granted broader relief than was appropriate — Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3).
In order to develop a copper and gold open pit mining and milling operation in British Columbia, a mining company submitted a project description to the BC Environmental Assessment Office. Public comment was sought and the Office subsequently determined that the project was not likely to cause significant adverse, environmental, heritage, social, economic or health effects and issued a provincial environmental assessment certificate. The company also submitted to the federal Department of Fisheries and Oceans applications for dams required to create a tailings impoundment area. Initially, the Department stated that a comprehensive study was required because the project fell within the provisions of the Comprehensive Study List Regulations (“CSL”) promulgated under the Canadian Environmental Assessment Act (“CEAA”). It subsequently scoped the project as to exclude the mine and mill and, given this, concluded that a comprehensive study was no longer necessary and that the assessment would proceed by way of screening. Additional public comment was not sought and the screening instead relied on information collected through the cooperative federal/provincial environmental assessment process. The federal screening report concluded that the project was not likely to cause significant adverse environmental effects and the responsible authority made the decision to allow the project to proceed. MiningWatch filed an application for judicial review of the decision to conduct a screening rather than a comprehensive study. The Federal Court allowed the application, concluding that the responsible authority had breached its duty under the CEAA by scoping the environmental assessment so that it only required a screening. The court quashed the decision to issue permits and approvals and prohibited further action by the responsible authority until it had conducted public consultation and completed a comprehensive study pursuant to s. 21 of the CEAA. The Federal Court of Appeal set aside the decision.
Held: The appeal should be allowed.
The CEAA and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. An interpretation which provides that the word “project” in s. 21 of the CEAA means “project as proposed” by the proponent, rather than “project as scoped” by the responsible authority, is consistent with the statutory definition of that word in s. 2 of the CEAA, the language of the relevant regulations, and with Parliament’s intent as found in the respective roles of the responsible authority and the Minister in conducting environmental assessments under the CEAA. Where, as here, a project as proposed is listed on the CSL, the requirements in s. 21 are mandatory.
Tracking and scoping are distinct steps in the CEAA process. While the responsible authority does not have the discretion to determine the assessment track, once the appropriate track is determined, it has the discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a) of the CEAA. In the event that the project is referred to a mediator or a review panel under s. 21.1(1)(b), the scope of the project is determined by the Minister after consulting with the responsible authority pursuant to s. 15(1)(b). The presumed scope of the project to be assessed is the project as proposed by the proponent but, as an exception to this general proposition, the responsible authority or Minister may enlarge the scope in the circumstances set out in s. 15(2) or (3). The responsible authority or Minister cannot reduce the scope of the project to less than what is proposed by the proponent. For a project subject to a comprehensive study, the responsible authority can, and should, minimize duplication by using the coordination mechanisms provided for in the CEAA. In particular, federal and provincial governments can adopt mutually agreeable terms for coordinating environmental assessments.
In the present case, the federal environmental assessment should have been conducted for the project as proposed by the proponent. Since the proposed project was described in the CSL, the requirements of s. 21 applied. The responsible authority was free to use any and all federal‑provincial coordination tools available, but it was still required to comply with the provisions of the CEAA pertaining to comprehensive studies. By conducting a screening, the responsible authority acted without statutory authority.
In exercising his discretion to grant the relief he did, the trial judge did not take account of a number of relevant and significant considerations and granted broader relief than was appropriate. MiningWatch has no proprietary or pecuniary interest in the outcome of the proceedings and did not participate in the environmental assessment conducted by the provincial authority. No evidence of dissatisfaction with the environmental assessments conducted by the BC Environmental Assessment Office or the responsible authority and no evidence of dissatisfaction with the assessment process from anyone else was brought forward. MiningWatch has brought this judicial review as a test case of the federal government’s obligations under s. 21. They made a strategic decision not to challenge the substantive scoping decision. When all the relevant considerations are taken into account, the appropriate relief is to allow the application for judicial review and declare that the responsible authority erred in failing to conduct a comprehensive study. No further relief is warranted. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond and there is no justification in requiring the proponent of the project to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the responsible authority.
Cases Cited
Referred to: Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, aff’g 2004 FC 1265, 257 F.T.R. 212; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Campbell, [1999] 1 S.C.R. 565; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Reza v. Canada, [1994] 2 S.C.R. 394; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
Statutes and Regulations Cited
Canadian Environmental Assessment Act, S.C. 1992, c. 37, Preamble, ss. 1 to 60, 71, 72, 74, 76, 77.
Comprehensive Study List Regulations, SOR/94‑638, Preamble, s. 3, Sch., s. 16.
Exclusion List Regulations, 2007, SOR/2007‑108, s. 2, Sch. 1, s. 1.
Explosives Act, R.S.C. 1985, c. E‑17.
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2).
Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97‑181.
Regulatory Impact Analysis Statement, SOR/94‑636.
Agreements
Canada‑British Columbia Agreement for Environmental Assessment Cooperation (2004).
Authors Cited
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated September 2009).
Hobby, Beverly, et al. Canadian Environmental Assessment Act: An Annotated Guide. Aurora, Ont.: Canada Law Book, 1997.
Multidictionnaire de la langue française, 5e éd. Montréal: Québec Amérique, 2009.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Wade, H. W. R. Administrative Law, 10th ed. Oxford: University Press, 2009.
APPEAL from a judgment of the Federal Court of Appeal (Desjardins, Sexton and Evans JJ.A.), 2008 FCA 209, [2009] 2 F.C.R. 21, 379 N.R. 133, 36 C.E.L.R. (3d) 159, [2008] F.C.J. No. 945 (QL), 2008 CarswellNat 1699, setting aside a decision of Martineau J., 2007 FC 955, [2008] 3 F.C.R. 84, 33 C.E.L.R. (3d) 1, 318 F.T.R. 160, [2007] F.C.J. No. 1249 (QL), 2007 CarswellNat 3169. Appeal allowed.
Gregory J. McDade, Q.C., and Lara Tessaro, for the appellant.
Kirk N. Lambrecht, Q.C., and Michele E. Annich, for the respondents the Minister of Fisheries and Oceans, the Minister of Natural Resources and the Attorney General of Canada.
Brad Armstrong, Q.C., Diana Valiela and Heather M. Cane, for the respondents the Red Chris Development Company Ltd. and the BCMetals Corporation.
Gary A. Letcher and Laura M. Gill, for the interveners the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia.
Richard D. Lindgren and Kaitlyn Mitchell, for the interveners the Canadian Environmental Law Association, the West Coast Environmental Law Association, the Sierra Club of Canada, the Quebec Environmental Law Centre, Friends of the Earth Canada and the Interamerican Association for Environmental Defense.
The judgment of the Court was delivered by
Rothstein J. —
1. Introduction
[1] The Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA” or the “Act”) is a detailed set of procedures that federal authorities must follow before projects that may adversely affect the environment are permitted to proceed. The Act and its regulations provide for different levels of intensity with which environmental assessments are to be performed depending upon the nature of the project under scrutiny. In practice, the intensity with which an environmental assessment should be conducted determines the “track” on which the assessment proceeds, whether by screening, comprehensive study, mediation or review panel.
[2] The issue in this appeal is whether the environmental assessment track is determined by the project as proposed by a proponent or by the discretionary scoping decision of the federal authority. In my opinion, the Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a federal authority to change that level.
2. Facts
[3] Red Chris Development Company and BCMetals Corporation (“Red Chris”) seek to develop a copper and gold open pit mining and milling operation in north‑western British Columbia. The appellant (MiningWatch) is a non‑profit society interested in the environmental, social, economic, health and cultural effects of mining and in particular its effects on indigenous people.
A. The Provincial Assessment Process
[4] On October 27, 2003, Red Chris submitted a project description to the BC Environmental Assessment Office (“BCEAO”). The BCEAO issued an order stating that the project would require an environmental assessment certificate before proceeding. The BC assessment proceeded smoothly. Red Chris prepared terms of reference covering all aspects of the project and made them available for comment by a working group (which included provincial and federal agencies, and the local First Nations groups). Red Chris also sought public comment on the project through several open house meetings. Once Red Chris submitted its application, the BCEAO posted the application online for public comment. Members of the public submitted several comments in response to the proponent’s application. On July 22, 2005, the BCEAO released its environmental assessment concluding that the project “is not likely to cause significant adverse, environmental, heritage, social, economic or health effects”. On August 24, 2005, the province issued an assessment certificate.
B. The Federal Assessment Process
[5] On or about May 3, 2004, Red Chris triggered the federal environmental assessment process under ss. 5(1)(d) and 5(2) of the CEAA by submitting to the Department of Fisheries and Oceans (“DFO”) applications for dams required to create a tailings impoundment area (an area in a small valley to be used for the permanent storage of mining effluent). DFO concluded that a federal environmental assessment would be required. On or about May 21, 2004, a “Notice of Commencement of an environmental assessment” was posted on the Canadian Environmental Assessment Registry website stating that DFO, as a “responsible authority” (“RA”), would conduct a comprehensive study of the project and described the project as an
OPEN PIT MINE WITH ASSOCIATED INFRASTRUCTURE INCLUDING TAILINGS IMPOUNDMENT AREA, ACCESS ROADS, WATER INTAKE, TRANSMISSION LINES AND ACCESSORY BUILDINGS (E.G. MAINTENANCE, CAMPSITE) The scope of the project will be added when available.
In a letter from DFO to other federal departments, DFO stated that a comprehensive study was required because the project’s proposed ore production was great enough that it fell within the provisions of the Comprehensive Study List Regulations, SOR/94-638 (“CSL”), promulgated under the CEAA.
[6] On June 2, 2004, Natural Resources Canada (NRCan) responded to this letter and announced that it was also a RA in addition to DFO because Red Chris required an approval under the Explosives Act, R.S.C. 1985, c. E-17. DFO and NRCan prepared to conduct a comprehensive study until December 9, 2004, when DFO wrote a letter to the Canadian Environmental Assessment Agency advising that it had scoped the project such that it excluded the mine and the mill. DFO later finalized the scope of the project as only including the tailings impoundment area and the water diversion system with ancillary facilities and the explosives storage and/or manufacturing facility. As a result, DFO determined that, as the mine and mill were no longer included in the project as scoped for environmental assessment, a comprehensive study was not necessary and the assessment would proceed by way of screening. On December 14, 2004, the online notice of commencement was retroactively amended to indicate that the project would be subject to a screening rather than a comprehensive study.
[7] On or about April 16, 2006, the federal screening report was released. The report stated that it was “based on information collected through the cooperative federal/provincial EA [environmental assessment] process”. The RAs did not seek additional public comment, relying instead on the BC environmental assessment and the public notice and responses under it. The report concluded that the project is not likely to cause significant adverse environmental effects. On May 2, 2006, the RAs made their decision to allow the project to proceed. A few days after this decision, the Screening Report was posted on the Canadian Environmental Assessment Registry website.
C. Application for Judicial Review
[8] On June 9, 2006, MiningWatch Canada filed an application in the Federal Court for judicial review of the decision to conduct a screening rather than a comprehensive study. It alleged a breach of the duty under the CEAA to conduct a comprehensive study and to consult the public on the scope of the assessment.
3. Judicial History
A. Federal Court, 2007 FC 955, [2008] 3 F.C.R. 84
[9] Martineau J. allowed the application for judicial review. He concluded that DFO had been correct in first determining that the project required a comprehensive study. He found that the language of s. 21 of the CEAA, as amended in 2003, made public consultation mandatory for comprehensive studies and that DFO and NRCan had breached their duty under the CEAA by scoping the environmental assessment to include only those aspects of the project that fell under federal jurisdiction.
[10] Martineau J. quashed the decision of DFO to issue permits and approvals to Red Chris and prohibited further action by DFO and NRCan until they had conducted public consultation under s. 21, completed a comprehensive study and complied with all other prerequisites to permit the project to be carried out.
B. Federal Court of Appeal, 2008 FCA 209, [2009] 2 F.C.R. 21
[11] Desjardins J.A., writing for a unanimous Federal Court of Appeal, allowed the appeal. The Court of Appeal found that “project” for federal environmental assessment purposes means “project as scoped” by a federal RA. Accordingly, a comprehensive study and public consultation are only mandatory where a project as scoped by the RA is listed in the CSL. Desjardins J.A. relied on the Federal Court of Appeal’s earlier decisions in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (“Sunpine”), and Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 (“TrueNorth”), and its conclusion that “project” in s. 5(1)(d) and s. 15(3) of the Act means “project as scoped”. Despite a recent amendment to s. 21, Desjardins J.A. found that TrueNorth was still binding because the introductory text in s. 21(1) was not altered by the amendment. The Federal Court of Appeal allowed the appeal, set aside Martineau J.’s order and dismissed the application for judicial review.
4. Issue
[12] The issue in the present case is whether DFO and NRCan as responsible authorities under the CEAA have been conferred discretion under the CEAA to determine whether an environmental assessment proceeds by way of a screening or comprehensive study.
5. Analysis
[13] The relevant legislative and regulatory provisions are attached in the Appendix.
A. Procedural Options Under the CEAA
[14] The CEAA is, in the words of its formal title, “[a]n Act to establish a federal environmental assessment process”. It provides a process for integrating environmental considerations into planning and decision making (CEAA, Preamble; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 71). In broad overview, the Act sets forth five potential procedural options or tracks for environmental assessment depending upon the nature of the project, i.e., the physical work or physical activity to be reviewed. These five tracks vary in levels of intensity of assessment:
1. No Assessment
2. Screening
3. Comprehensive Study
4. Mediation
5. Review Panel
1) No Assessment
[15] Section 7 provides that if a project is described on the Exclusion List Regulations, 2007, SOR/2007‑108, or is required in response to an emergency, no environmental assessment need be carried out. Projects on this list are considered to have insignificant environmental effects. Projects in the Exclusion List Regulations, 2007 include, for example, the proposed maintenance or repair of a physical work (so long as it is not carried out in a national park, park reserve, national historic site or historic canal) (Exclusion List Regulations, 2007, Sch. 1, s. 1).
2) Screening
[16] The least intense environmental assessment track is termed a “screening”. If a proposed project does not appear in the exclusion list or the comprehensive study list (discussed below), then a screening is required pursuant to s. 18 of the Act. Projects requiring a screening are those considered to have some potential for adverse environmental effects, but those effects are not considered to be significant enough to warrant the more intense assessments discussed below.
3) Comprehensive Study, Mediation, and Review Panel
[17] Finally, comprehensive studies, mediation and review panels all arise from the listing of a proposed project in the CSL. Under s. 21.1(1) of the Act, if a project is described in the CSL the Minister of the Environment has three options. One is to refer the project to a RA (generally a federal department or agency) to proceed with a comprehensive study. A second is to refer the project to a mediator if all interested parties agree. A third is to refer the project to a review panel. Projects in the CSL are those considered likely to have significant adverse environmental effects (CSL Preamble). A mine or mill with a proposed capacity above the specified threshold is listed in the CSL (CSL, Sch., s. 16).
[18] Some of the more important requirements pertaining to projects in the CSL that do not apply to projects that require only a screening assessment are:
1) Mandatory public consultation at the outset and throughout the environmental assessment process (ss. 21 to 23).
2) A government funding program to facilitate public participation in the environmental assessment process (s. 58(1.1)).
3) Determination by the Minister as to whether the environmental assessment should be conducted as a comprehensive study by the RA or be referred to mediation or to a review panel (s. 21.1).
4) Determination by the Minister rather than a RA as to whether the project will cause significant adverse effects to the environment (s. 23).
5) Assessment of the purpose of the project and consideration of alternative means of carrying out the project and the environmental effects of the alternatives (s. 16(2)).
6) The need for a follow-up program (s. 16(2)).
7) The capacity of affected renewable resources to meet present and future needs (s. 16(2)).
Generally speaking, in comparison to a screening, projects in the CSL are subjected to more intensive assessment, Ministerial oversight and mandatory public consultation.
B. Interpretation of Section 21
[19] The provision under scrutiny in the present appeal is s. 21 of the CEAA. Section 21 initiates the set of procedures that RAs must follow when a project is listed in the CSL. The relevant portion of the section reads as follows:
21. (1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.
[20] The decision of the Federal Court of Appeal and the positions of the government and Red Chris on the proper interpretation of s. 21 are largely based on their interpretation of the application of s. 15(1) of the CEAA. They argue that s. 15(1), which grants the discretion to “scope” the project, i.e. define what aspects of the project will be included in the federal environmental assessment, includes the discretion to “track” the project (i.e. determine the level of assessment). In other words, they argue that determining the assessment track and determining the scope of the project are the same step in the assessment process. The “scoping” provision, s. 15(1), provides:
15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
(a) the responsible authority; or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.
[21] Red Chris and the government argue that s. 15(1) is of “general application” and confers on a RA the discretion to determine the scope of the project in relation to which an environmental assessment is to be conducted. Therefore, even though a project as proposed by a proponent (in this case a mine and mill) appears in the CSL, it is open to a RA to scope the project for federal environmental assessment purposes in a more limited way. The result is that the project as scoped by the RA is not in the CSL and therefore requires only a screening and not a comprehensive study. They, therefore, support the approach taken in this case by DFO and NRCan which scoped the project as the tailings impoundment area, water diversion system and explosives storage/manufacturing facility, none of which are listed in the CSL.
[22] They further point out that ss. 18 to 20 which set out the screening process and ss. 21 to 24 which set out the comprehensive study process follow s. 15. Section 18(1) commences with the words “[w]here a project is not described in the comprehensive study list”. Section 21 commences with the words “[w]here a project is described in the comprehensive study list” (Red Chris factum, at para. 72). Red Chris and the government argue that these “screening” and “comprehensive study” provisions follow directly after the “general” provisions which include s. 15(1). Therefore, the reference to “project” in ss. 18 and 21 is subject to the scoping discretion in s. 15(1). In other words, s. 15(1) gives RAs the discretion to scope a project and determine the track for assessment. (Red Chris factum, at para. 73).
[23] Red Chris and the government also argue that their interpretation provides the RAs with the flexibility required to address the specific circumstances of each project. This flexibility allows for the consideration of the nexus between the assessment and the federal authority, the area of expertise of the RA, the provincial assessment process, the coordination between the province and federal authorities, and the elimination of duplication (Red Chris factum, at para. 97, and government factum, at para. 77). They argue that the appellant’s interpretation, which provides that “project” means “project as proposed by the proponent”, leads to a rigid, inflexible and arbitrary approach to environmental assessment (Red Chris factum, at para. 85).
[24] There is perhaps a rationale for the interpretation proposed by Red Chris and the government. Where projects are subject to environmental assessment by both provincial and federal authorities, it is not unreasonable to think that such projects should not be subject to two, duplicative, environmental assessments. Duplication could be minimized by scoping the project for federal environmental assessment purposes on a more limited basis than the project as proposed by the proponent, and by focussing on matters within federal jurisdiction and the specific approvals sought from the federal government by the proponents of the project.
[25] However, s. 12(4) of the CEAA provides that in such cases, a federal RA may cooperate with the province in respect of the environmental assessment. Detailed provisions for coordination are set out in the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97-181, the Canada‑British Columbia Agreement for Environmental Assessment Cooperation (2004), and similar provincial-federal harmonization agreements across the country. Thus, Red Chris and the government’s policy arguments regarding duplication and coordination have been recognized in the CEAA and its regulations.
[26] Red Chris and the government rely heavily on two prior Federal Court of Appeal decisions, TrueNorth and Sunpine. In reaching its conclusion, the Federal Court of Appeal also relied on these prior decisions. However, I am of the opinion that the approach of the Federal Court of Appeal and that advocated by Red Chris and the government cannot be sustained. To the extent that the decisions relied on by Red Chris, the Government and the Federal Court of Appeal are inconsistent with the analysis that follows, these reasons now govern.
[27] The duty of this Court is to interpret the Act based on its text and context. A close reading of the relevant provisions of the CEAA leads to the conclusion that it is not within the discretion of the RA to conduct only a screening when a proposed project is listed in the CSL.
[28] The starting point in the statutory interpretation exercise is the definition section, s. 2, of the CEAA. “[P]roject” in relation to a physical work is defined in English as “any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work”. “Projet” is defined in French as “Réalisation — y compris l’exploitation, la modification, la désaffectation ou la fermeture — d’un ouvrage ou proposition d’exercice d’une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d’une catégorie d’activités concrètes désignée par règlement aux termes de l’alinéa 59b)”. The English definition of “project” expressly uses the word “proposed” and therefore means “project as proposed by the proponent”. Although the French definition does not use the word “proposed”, implicit in the French meaning of the word “projet” is the notion of proposal: [Translation] “Idea of something one proposes to accomplish ... the word projet relates to something done before the project is carried out, unlike the English word, which covers both senses.” (Multidictionnaire de la langue française (5e éd. 2009), at p. 1313. In any event, even if “projet” were broader than the English equivalent, the common meaning would favour the more restricted meaning (see Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56, per LeBel J.). Therefore, the starting point of this analysis is that the statutory definition of project is “project as proposed”.
[29] It is certainly possible that this definition may not apply to every use of the term “project” in the statute — particularly in the case of the CEAA where the term “project” appears well over 300 times. But, displacement of the defined term requires express words or necessarily implied context that Parliament did not intend for the definition to apply to that particular use of the term (Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400; R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 215). There is nothing in s. 18 or 21 to suggest that the term “project” as defined is not applicable or is displaced by the project as scoped by the RA under s. 15.
[30] The CSL itself provides some further support that “project” in s. 21 does not mean “project as scoped” by the RA. The English version of the CSL describes projects in terms of proposals. For example, the Schedule states:
16. The proposed construction, decommissioning or abandonment of
(a) a metal mine, other than a gold mine, with an ore production capacity of 3 000 t/d or more;...
The French equivalent reads:
16. Projet de construction, de désaffectation ou de fermeture:
(a) d’une mine métallifère, autre qu’une mine d’or, d’une capacité de production de minerai de 3 000 t/d ou plus;...
Inclusion of the word “proposed” in the English version of the CSL suggests that the opening words of s. 21 should be interpreted as “where a project ‘as proposed’ is described in the CSL” and not “where a project ‘as scoped by the RA’ is described in the CSL”. While again the French regulation does not expressly refer to “proposed”, as discussed above, implicit in the French definition of “projet” is the notion of proposal. In any case, there is certainly nothing in the term “projet” that suggests it means “project as scoped”.
[31] While it would be inappropriate to solely rely on regulations to interpret a provision of the governing legislation, the language in the regulations in the present case is consistent with the interpretation gleaned from the Act itself. In addition, the CSL is tightly linked to the CEAA. The CSL is one of the “[f]our regulations ... needed to make the Act work” (B. Hobby et al., Canadian Environmental Assessment Act: An Annotated Guide (1997), at p. III-1), and the proclamation of ss. 1 to 60, 71, 72, 74, 76 and 77 of the CEAA was delayed until the CSL and other key regulations were already in force (Order Fixing January 19, 1995 as the Date of the Coming into Force of Certain Sections of the Act, SI/95-11. CSL Registration date: October 7, 1994). In these circumstances it is appropriate to consider the regulations when interpreting the governing statute because “[w]hen regulations are made to complete the statutory scheme, they are clearly intended to operate together and to be mutually informing.” (Sullivan, at p. 370). See also Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565, at para. 26, and Deschamps J. in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 35).
[32] A further indication that this interpretation is consistent with the intent of Parliament is found in the respective roles of the RA and the Minister in conducting environmental assessments under the CEAA. The CEAA grants the Minister the authority to prescribe that certain projects or classes of projects are subject to a comprehensive study. Section 58(1)(i) provides:
58. (1) For the purposes of this Act, the Minister may
...
(i) make regulations prescribing any project or class of projects for which a comprehensive study is required where the Minister is satisfied that the project or any project within that class is likely to have significant adverse environmental effects.
Red Chris and the government’s interpretation of s. 21 would render this authority subject to the overriding authority of the RA, presumably under s. 15(1), to determine on a case‑by‑case basis whether the project would be subject to a comprehensive study. In other words, decisions of the Minister would be subordinate to decisions of the RA. The presumption in Canada, with a democratically elected responsible government, must be the other way around.
[33] I am unable to agree with the Federal Court of Appeal’s finding that there is “nothing in the context of the CEAA which indicates ... a different interpretation than [project‑as‑scoped by the RA]” (para. 49). The CSL includes classes of projects which the Minister has determined are likely to have significant adverse environmental effects (CEAA, s. 58(1)(i); CSL Preamble). It would follow that by authorizing the Minister to make such regulations and thereby determine which projects require a comprehensive study, Parliament intended the Minister to determine which projects did or did not require comprehensive study, not the RA. The Regulatory Impact Analysis Statement, SOR/94-636, supports that view:
The Comprehensive Study List (CSL) supplies greater certainty and efficiency by identifying which major projects will automatically be assessed more extensively.
[34] In sum, subject to my comments below about s. 15(2) and (3), when the term “project” in ss. 18 and 21 is considered in context, the correct interpretation is “project as proposed” and not “project as scoped”. This means that the determination of whether a project requires a comprehensive study is not within the discretion of the RA. If the project as proposed is listed in the CSL, a comprehensive study is mandatory.
C. The Discretion to Scope
[35] How, then, does the discretion conferred on the RA or Minister under s. 15(1) to determine the scope of a project for the environmental assessment fit within the scheme of the Act? I am of the opinion that tracking and scoping are distinct steps in the CEAA process. Generally, the RA does not have the discretion to determine the assessment track. However, once the appropriate track is determined, the RA does have the discretion to determine the scope of the project for the purposes of assessment.
[36] In the case of a project not in the CSL a screening is conducted in accordance with the scope of the project as determined by the RA under s. 15(1)(a), subject to the requirements of s. 15(2) and (3). The RA’s scoping decision is determinative.
[37] In the case of a project in the CSL, the answer is not as clear. However, I think it can be described in the following way. The RA, in its discretion under s. 15(1), and after ensuring public consultation in accordance with s. 21(1), determines the proposed scope of the project for purposes of the comprehensive study. Under s. 21(2)(a), the RA reports to the Minister on its determination of the scope of the project for the comprehensive study (and on the other matters on which the public was consulted under s. 21(1)) and recommends to the Minister to continue with the environmental assessment by means of a comprehensive study to be conducted by the RA, or alternatively that the Minister refer the project to a mediation or review panel under s. 21(2)(b).
[38] The Minister may remit the project to the RA to conduct the comprehensive study in accordance with its report on the scoping of the project under s. 21.1(1)(a), or refer the project to a mediator or to a review panel under s. 21.1(1)(b). In the event that the project is referred to a mediator or a review panel under s. 21.1(1)(b) the scope of the project is determined by the Minister after consulting with the RA pursuant to s. 15(1)(b).
D. Limits on the Discretion to Scope a Project
[39] Regardless of the assessment track, the RA or Minister’s discretion to scope a project and to scope the environmental assessment is outlined in s. 15. Section 15(1) grants the discretion to scope to either the Minister, in the case of mediation or a review panel, or the RA. However, the exercise of this discretion is limited by s. 15(3). Section 15(3) provides that an environmental assessment of a physical work shall be conducted in respect of every “construction, operation, modification, decommissioning, abandonment or other undertaking” in relation to the project. Consistent with the view that the “project as proposed by the proponent” is to apply in the absence of text or context to the contrary, the scoping of the project performed by the RA or Minister under s. 15(1) is subject to s. 15(3). In other words, the minimum scope is the project as proposed by the proponent, and the RA or Minister has the discretion to enlarge the scope when required by the facts and circumstances of the project. The RA or Minister is also granted further discretion by s. 15(2) to combine related proposed projects into a single project for the purposes of assessment. In sum, while the presumed scope of the project to be assessed is the project as proposed by the proponent, under s. 15(2) or (3), the RA or Minister may enlarge the scope in the appropriate circumstances.
[40] It follows, then, that the scoping discretion under s. 15(2) and (3) acts as an exception to the general proposition that the level of assessment is determined solely based on the project as proposed by the proponent. The Act assumes that the proponent will represent the entirety of the proposed project in relation to a physical work. However, as noted by the government, a proponent could engage in “project-splitting” by representing part of a project as the whole, or proposing several parts of a project as independent projects in order to circumvent additional assessment obligations (see Government factum, at para. 73). Where the RA or Minister decides to combine projects or to enlarge the scope under s. 15(2) or (3), it is conceivable that the project as proposed by the proponent might have only required a screening. However, when the RA or Minister considers all matters in relation to the project as proposed, the resulting scope places the project in the CSL. Where this occurs, the project would be subject to a comprehensive study.
[41] I should note that while, for federal environmental assessment purposes, a project will include the entire project as proposed, the RAs can, and should, minimize duplication by using the coordination mechanisms provided for in the Act. In particular, federal and provincial governments can adopt mutually agreeable terms for coordinating environmental assessments (s. 58(1)(c) and (d)). Full use of this authority would serve to reduce unnecessary, costly and inefficient duplication. Cooperation and coordination are the procedures expressed in the CEAA (see s. 12(4)).
[42] In the present case, the federal environmental assessment should have been conducted for the project as proposed by Red Chris. The proposed project was described in the CSL. Therefore, the requirements of s. 21 applied. The RAs were free to use any and all federal-provincial coordination tools available, but they were still required to comply with the provisions of the CEAA pertaining to comprehensive studies. The RAs in this case acted without statutory authority by conducting a screening.
6. Remedy
[43] The remedy awarded by the trial judge was pursuant to the discretion conferred upon him under s. 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7. Section 18.1(3) provides:
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
The question here is whether this Court may and should intervene with respect to remedy. The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given weight to all relevant considerations. See Reza v. Canada, [1994] 2 S.C.R. 394, at p. 404, Friends of the Oldman River Society, at pp. 76-77, and Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at pp. 587-88.
[44] In my respectful view, in exercising his discretion to grant the broad relief he did, the learned trial judge did not take account of a number of relevant and significant considerations. Because of this, he granted broader relief than was appropriate.
[45] Martineau J. set aside the RAs’ decision to proceed by way of screening and prohibited the issuing of permits and approvals under s. 5(1)(d) and s. 5(2) until the completion of a comprehensive study pursuant to s. 21 and, based thereon, a decision whether to permit the project to be carried out in whole or in part pursuant to s. 37. In simple terms, the parties have been ordered to substantially re‑do the environmental assessment. I do not think such relief is warranted.
[46] First, at para. 292, the trial judge states that “[i]t is not entirely clear to the Court why, once it had been determined the Project, as described by the RCDC, was included in the CSL, the decision was subsequently made to downgrade the extent of the assessment required to that of a screening.” While he says that he does not define the scoping decision to be “capricious and arbitrary” (para. 294), his reasons indicate a suspicion of the motive of the RAs. However, it is apparent that the environmental assessment was converted to a screening assessment on or about December 9, 2004, because of new information and because of the issuance of the TrueNorth decision by the Federal Court on September 16, 2004 (2004 FC 1265. 257 F.T.R. 212), after the initial scoping decision had been made. Indeed, the trial judge, in his reasons, quoted a letter of DFO dated December 9, 2004 to the Canadian Environmental Assessment Agency explaining that the RAs were influenced by new information and by the TrueNorth decision (para. 108). Yet, he still questioned the motives of the RAs in scoping. It is difficult to fault the RAs for following a decision of the Federal Court on the very matter with which they were dealing.
[47] Second, the trial judge does not appear to have considered that, although it is Red Chris that will be prejudiced by incurring further delay and costs as a result of his order, Red Chris did nothing wrong. The approach to the environmental assessment was determined by the government.
[48] Third, according to the evidence, Red Chris cooperated fully with the environmental assessment conducted by the BCEAO. It proposed terms of reference for a working group which included federal and provincial agencies and local First Nation groups. Red Chris sought public comment on the project through several open house meetings. Once Red Chris submitted its application for a provincial environmental assessment certificate, the BCEAO posted the application online for public comment, and members of the public submitted several comments in response to the Red Chris application. These facts do not appear to have been considered by the trial judge in exercising his discretion to grant relief.
[49] Further, in a letter to the Deputy Minister of Natural Resources Canada dated August 24, 2006, MiningWatch stated that it “brought this application as a test case of the federal government’s obligations under section 21”. It would be incorrect to say that the parties in test cases may not still be interested in preserving their claims that gave rise to the litigation in the first place. However, this is not such a case.
[50] MiningWatch says it has no proprietary or pecuniary interest in the outcome of the proceedings (affidavit of Joan Kuyek, A.R. vol. 2, p. 1, at para. 32). MiningWatch did not participate in the environmental assessment conducted by the BCEAO. Its first involvement was in commencing judicial review in the Federal Court. It has not brought forward any evidence of dissatisfaction with the environmental assessments conducted by the BCEAO or the RAs; nor is there evidence of dissatisfaction with the assessment process from anyone else. MiningWatch says it has brought this judicial review as a test case of the federal government’s obligations under s. 21. Indeed, they made a strategic decision not to challenge the substantive scoping decision. This is an appropriate case in which to take the position expressed by MiningWatch at face value. A declaration as to the proper interpretation of s. 21 and the obligations of the federal government achieves MiningWatch’s stated objective and grants a substantial portion of the relief it requested.
[51] In my opinion, the appropriate relief in this case would be to allow the application for judicial review and declare that the RAs erred in failing to conduct a comprehensive study. Pursuant to s. 18.1(3) of the Federal Courts Act, I would decline to grant any further relief.
[52] I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the CEAA to stand in this case. But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought. However, because such discretionary power may make inroads upon the rule of law, it must be exercised with the greatest care. See H. W. R. Wade, Administrative Law (10th ed. 2009), at p. 599 and Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 361. In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved. See D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 3-88 and 3-89, referred to by Binnie J. in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 36. Such considerations will include any disproportionate impact on the parties or the interests of third parties (Brown and Evans, at p. 3-88, footnote 454). In my respectful opinion, that is the situation here. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond. On the other hand, I can see no justification in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the RAs.
7. Disposition
[53] I would allow the appeal with costs throughout on a party and party basis, allow the application for judicial review and issue a declaration that the RAs erred in failing to use the project as proposed by Red Chris to determine whether the CEAA was triggered under s. 5, whether the Exclusion List Regulations, 2007 applied, and if a federal environmental assessment was to be conducted, whether it was to proceed by way of a comprehensive study if the project was listed in the CSL and if not, by way of screening. I would decline to grant any further relief. Although requested by MiningWatch, this is not a case for solicitor-client costs. There is no misconduct or other reason for an award other than the usual party-party award of costs that normally follows the event.
APPENDIX
Canadian Environmental Assessment Act, S.C. 1992, c. 37
[Preamble]
...
WHEREAS environmental assessment provides an effective means of integrating environmental factors into planning and decision‑making processes in a manner that promotes sustainable development;
2. (1) In this Act,
...
“project” means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or
(b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b);
...
« projet » Réalisation — y compris l’exploitation, la modification, la désaffectation ou la fermeture — d’un ouvrage ou proposition d’exercice d’une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d’une catégorie d’activités concrètes désignée par règlement aux termes de l’alinéa 59b).
“responsible authority”, in relation to a project, means a federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted;
[Projects requiring environmental assessment]
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
...
(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
[Projects requiring approval of Governor in Council]
(2) Notwithstanding any other provision of this Act,
(a) an environmental assessment of a project is required before the Governor in Council, under a provision prescribed pursuant to regulations made under paragraph 59(g), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part;
[Exclusions]
7. (1) An assessment of a project is not required under section 5 or sections 8 to 10.1, where
(a) the project is described in an exclusion list;
(b) the project is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or
(c) the project is to be carried out in response to an emergency and carrying out the project forthwith is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
...
12. ...
[Cooperation with other jurisdictions]
(4) Where a screening or comprehensive study of a project is to be conducted and a jurisdiction has a responsibility or an authority to conduct an assessment of the environmental effects of the project or any part thereof, the responsible authority may cooperate with that jurisdiction respecting the environmental assessment of the project.
[Scope of project]
15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
(a) the responsible authority; or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.
[Same assessment for related projects]
(2) For the purposes of conducting an environmental assessment in respect of two or more projects,
(a) the responsible authority, or
(b) where at least one of the projects is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority,
may determine that the projects are so closely related that they can be considered to form a single project.
[All proposed undertakings to be considered]
(3) Where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work that is proposed by the proponent or that is, in the opinion of
(a) the responsible authority, or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority,
likely to be carried out in relation to that physical work.
[Factors to be considered]
16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public that are received in accordance with this Act and the regulations;
(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and
(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.
[Additional factors]
(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means;
(c) the need for, and the requirements of, any follow‑up program in respect of the project; and
(d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.
[Screening]
18. (1) Where a project is not described in the comprehensive study list or the exclusion list made under paragraph 59(c), the responsible authority shall ensure that
(a) a screening of the project is conducted; and
(b) a screening report is prepared
[Public consultation]
21. (1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.
[Report and recommendation]
(2) After the public consultation, as soon as it is of the opinion that it has sufficient information to do so, the responsible authority shall
(a) report to the Minister regarding
(i) the scope of the project, the factors to be considered in its assessment and the scope of those factors,
(ii) public concerns in relation to the project,
(iii) the potential of the project to cause adverse environmental effects, and
(iv) the ability of the comprehensive study to address issues relating to the project; and
(b) recommend to the Minister to continue with the environmental assessment by means of a comprehensive study, or to refer the project to a mediator or review panel in accordance with section 29.
[Minister’s decision]
21.1 (1) The Minister, taking into account the things with regard to which the responsible authority must report under paragraph 21(2)(a) and the recommendation of the responsible authority under paragraph 21(2)(b), shall, as the Minister considers appropriate,
(a) refer the project to the responsible authority so that it may continue the comprehensive study and ensure that a comprehensive study report is prepared and provided to the Minister and to the Agency; or
(b) refer the project to a mediator or review panel in accordance with section 29.
[Decision final]
(2) Despite any other provision of this Act, if the Minister refers the project to a responsible authority under paragraph (1)(a), it may not be referred to a mediator or review panel in accordance with section 29.
[Public notice]
22. (1) After receiving a comprehensive study report in respect of a project, the Agency shall, in any manner it considers appropriate to facilitate public access to the report, publish a notice setting out the following information:
(a) the date on which the comprehensive study report will be available to the public;
(b) the place at which copies of the report may be obtained; and
(c) the deadline and address for filing comments on the conclusions and recommendations of the report.
[Public concerns]
(2) Prior to the deadline set out in the notice published by the Agency, any person may file comments with the Agency relating to the conclusions and recommendations and any other aspect of the comprehensive study report.
[Decision of Minister]
23. (1) The Minister shall, after taking into consideration the comprehensive study report and any comments filed pursuant to subsection 22(2), refer the project back to the responsible authority for action under section 37 and issue an environmental assessment decision statement that
(a) sets out the Minister’s opinion as to whether, taking into account the implementation of any mitigation measures that the Minister considers appropriate, the project is or is not likely to cause significant adverse environmental effects; and
(b) sets out any mitigation measures or follow‑up program that the Minister considers appropriate, after having taken into account the views of the responsible authorities and other federal authorities concerning the measures and program.
[More information required]
(2) Before issuing the environmental assessment decision statement, the Minister shall, if the Minister is of the opinion that additional information is necessary or that there are public concerns that need to be further addressed, request that the federal authorities referred to in paragraph 12.3(a) or the proponent ensure that the necessary information is provided or actions are taken to address those public concerns.
[Time for statement]
(3) The Minister shall not issue the environmental assessment decision statement before the 30th day after the inclusion on the Internet site of
(a) notice of the commencement of the environmental assessment;
(b) a description of the scope of the project;
(c) where the Minister, under paragraph 21.1(1)(a), refers a project to the responsible authority to continue a comprehensive study,
(i) notice of the Minister’s decision to so refer the project, and
(ii) a description of the factors to be taken into consideration in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained; and
(d) the comprehensive study report that is to be taken into consideration by a responsible authority in making its decision under subsection 37(1) or a description of how a copy of the report may be obtained.
[Use of previously conducted environmental assessment]
24. (1) Where a proponent proposes to carry out, in whole or in part, a project for which an environmental assessment was previously conducted and
(a) the project did not proceed after the assessment was completed,
(b) in the case of a project that is in relation to a physical work, the proponent proposes an undertaking in relation to that work different from that proposed when the assessment was conducted,
(c) the manner in which the project is to be carried out has subsequently changed, or
(d) the renewal of a licence, permit, approval or other action under a prescribed provision is sought,
the responsible authority shall use that assessment and the report thereon to whatever extent is appropriate for the purpose of complying with section 18 or 21.
[Necessary adjustments]
(2) Where a responsible authority uses an environmental assessment and the report thereon pursuant to subsection (1), the responsible authority shall ensure that any adjustments are made to the report that are necessary to take into account any significant changes in the environment and in the circumstances of the project and any significant new information relating to the environmental effects of the project.
[Decision of responsible authority]
37. (1) Subject to subsections (1.1) to (1.3), the responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to subsection 23(1), the comprehensive study report:
(a) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate,
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances,
the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part; or
(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part.
[Powers to facilitate environmental assessments]
58. (1) For the purposes of this Act, the Minister may
...
(c) enter into agreements or arrangements with any jurisdiction within the meaning of paragraph 40(1)(a), (b), (c) or (d) respecting assessments of environmental effects;
(d) enter into agreements or arrangements with any jurisdiction, within the meaning of subsection 40(1), for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of projects of common interest;
...
(i) make regulations prescribing any project or class of projects for which a comprehensive study is required where the Minister is satisfied that the project or any project within that class is likely to have significant adverse environmental effects.
...
[Participant funding]
(1.1) For the purposes of this Act, the Minister shall establish a participant funding program to facilitate the participation of the public in comprehensive studies, mediations and assessments by review panels established under either subsection 33(1) or 40(2).
Comprehensive Study List Regulations, SOR/94‑638
[Regulations Prescribing Those Projects and Classes of Projects for Which a Comprehensive Study is Required]
Whereas the Governor in Council is satisfied that certain projects and classes of projects are likely to have significant adverse environmental effects;
...
GENERAL
3. The projects and classes of projects that are set out in the schedule are prescribed projects and classes of projects for which a comprehensive study is required.
SCHEDULE
PART V: MINERALS AND MINERAL PROCESSING
16. The proposed construction, decommissioning or abandonment of
(a) a metal mine, other than a gold mine, with an ore production capacity of 3 000 t/d or more;
...
(c) a gold mine, other than a placer mine, with an ore production capacity of 600 t/d or more;
16. Projet de construction, de désaffectation ou de fermeture :
(a) d’une mine métallifère, autre qu’une mine d’or, d’une capacité de production de minerai de 3 000 t/d ou plus;
Exclusion List Regulations, 2007, SOR/2007‑108
Whereas the Governor in Council is satisfied that the environmental effects of certain projects in relation to physical works are insignificant;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subparagraph 59(c)(ii) of the Canadian Environmental Assessment Act, hereby makes the annexed Exclusion List Regulations, 2007.
...
2. The projects and classes of projects that are set out in Schedule 1 and to be carried out in places other than a national park, park reserve, national historic site or historic canal are exempted from the requirement to conduct an assessment under the Act.
SCHEDULE 1
EXCLUSION LIST FOR PLACES OTHER THAN NATIONAL PARKS, PARK RESERVES, NATIONAL HISTORIC SITES OR HISTORIC CANALS
PART 1
GENERAL PROJECTS
1. The proposed maintenance or repair of a physical work.
Federal Courts Act, R.S.C. 1985, c. F‑7
[Application for judicial review]
18.1...
[Powers of Federal Court]
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Interpretation Act, R.S.C. 1985, c. I‑21
[Application of definitions and interpretation rules]
15. (1) Definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.
[Interpretation sections subject to exceptions]
(2) Where an enactment contains an interpretation section or provision, it shall be read and construed
(a) as being applicable only if a contrary intention does not appear; and
(b) as being applicable to all other enactments relating to the same subject‑matter unless a contrary intention appears.
Appeal allowed with costs.
Solicitors for the appellant: Ecojustice Canada, Vancouver.
Solicitor for the respondents the Minister of Fisheries and Oceans, the Minister of Natural Resources and the Attorney General of Canada: Department of Justice Canada, Edmonton.
Solicitors for the respondents the Red Chris Development Company Ltd. and the BCMetals Corporation: Lawson Lundell, Vancouver.
Solicitors for the interveners the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia: Edwards, Kenny & Bray, Vancouver.
Solicitors for the interveners the Canadian Environmental Law Association, the West Coast Environmental Law Association, the Sierra Club of Canada, the Quebec Environmental Law Centre, Friends of the Earth Canada and the Interamerican Association for Environmental Defense: Canadian Environmental Law Association, Toronto.
SUPREME COURT OF CANADA
Citation: Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2
Date: 20100121
Docket: 32797
Between:
MiningWatch Canada
Appellant
and
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada
Respondents
And Between:
MiningWatch Canada
Appellant
and
Red Chris Development Company Ltd. and
BCMetals Corporation
Respondents
‑ and ‑
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense
Interveners
Coram: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 53)
Rothstein J. (Binnie, LeBel, Fish, Abella, Charron and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
miningwatch canada v. canada
MiningWatch Canada Appellant
v.
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada Respondents
- and -
MiningWatch Canada Appellant
v.
Red Chris Development Company Ltd. and
BCMetals Corporation Respondents
and
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense Interveners
Indexed as: MiningWatch Canada v. Canada (Fisheries and Oceans)
Neutral citation: 2010 SCC 2.
File No.: 32797.
2009: October 16; 2010: January 21.
Present: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Environmental law — Federal environmental assessment process — Comprehensive study — Scope of project — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Whether environmental assessment should have proceeded by way of screening or comprehensive study — Whether federal environmental assessment track is determined by project as proposed by proponent or by discretionary scoping decision of responsible authority — Meaning of the word “project” — Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 15, 21.
Administrative law — Judicial review — Remedy — Federal environmental assessment process — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Public interest litigant filing application for judicial review — Substantive decisions made by responsible authority not challenged — Judicial review brought as test case to determine federal government’s obligations under s. 21 of Canadian Environmental Assessment Act — Federal Court setting aside decision to proceed by way of screening, quashing decision to issue permits and approvals to proceed with the project and prohibiting issuance of such permits and approvals until completion of comprehensive study — Whether Federal Court granted broader relief than was appropriate — Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3).
In order to develop a copper and gold open pit mining and milling operation in British Columbia, a mining company submitted a project description to the BC Environmental Assessment Office. Public comment was sought and the Office subsequently determined that the project was not likely to cause significant adverse, environmental, heritage, social, economic or health effects and issued a provincial environmental assessment certificate. The company also submitted to the federal Department of Fisheries and Oceans applications for dams required to create a tailings impoundment area. Initially, the Department stated that a comprehensive study was required because the project fell within the provisions of the Comprehensive Study List Regulations (“CSL”) promulgated under the Canadian Environmental Assessment Act (“CEAA”). It subsequently scoped the project as to exclude the mine and mill and, given this, concluded that a comprehensive study was no longer necessary and that the assessment would proceed by way of screening. Additional public comment was not sought and the screening instead relied on information collected through the cooperative federal/provincial environmental assessment process. The federal screening report concluded that the project was not likely to cause significant adverse environmental effects and the responsible authority made the decision to allow the project to proceed. MiningWatch filed an application for judicial review of the decision to conduct a screening rather than a comprehensive study. The Federal Court allowed the application, concluding that the responsible authority had breached its duty under the CEAA by scoping the environmental assessment so that it only required a screening. The court quashed the decision to issue permits and approvals and prohibited further action by the responsible authority until it had conducted public consultation and completed a comprehensive study pursuant to s. 21 of the CEAA. The Federal Court of Appeal set aside the decision.
Held: The appeal should be allowed.
The CEAA and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. An interpretation which provides that the word “project” in s. 21 of the CEAA means “project as proposed” by the proponent, rather than “project as scoped” by the responsible authority, is consistent with the statutory definition of that word in s. 2 of the CEAA, the language of the relevant regulations, and with Parliament’s intent as found in the respective roles of the responsible authority and the Minister in conducting environmental assessments under the CEAA. Where, as here, a project as proposed is listed on the CSL, the requirements in s. 21 are mandatory.
Tracking and scoping are distinct steps in the CEAA process. While the responsible authority does not have the discretion to determine the assessment track, once the appropriate track is determined, it has the discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a) of the CEAA. In the event that the project is referred to a mediator or a review panel under s. 21.1(1)(b), the scope of the project is determined by the Minister after consulting with the responsible authority pursuant to s. 15(1)(b). The presumed scope of the project to be assessed is the project as proposed by the proponent but, as an exception to this general proposition, the responsible authority or Minister may enlarge the scope in the circumstances set out in s. 15(2) or (3). The responsible authority or Minister cannot reduce the scope of the project to less than what is proposed by the proponent. For a project subject to a comprehensive study, the responsible authority can, and should, minimize duplication by using the coordination mechanisms provided for in the CEAA. In particular, federal and provincial governments can adopt mutually agreeable terms for coordinating environmental assessments.
In the present case, the federal environmental assessment should have been conducted for the project as proposed by the proponent. Since the proposed project was described in the CSL, the requirements of s. 21 applied. The responsible authority was free to use any and all federal‑provincial coordination tools available, but it was still required to comply with the provisions of the CEAA pertaining to comprehensive studies. By conducting a screening, the responsible authority acted without statutory authority.
In exercising his discretion to grant the relief he did, the trial judge did not take account of a number of relevant and significant considerations and granted broader relief than was appropriate. MiningWatch has no proprietary or pecuniary interest in the outcome of the proceedings and did not participate in the environmental assessment conducted by the provincial authority. No evidence of dissatisfaction with the environmental assessments conducted by the BC Environmental Assessment Office or the responsible authority and no evidence of dissatisfaction with the assessment process from anyone else was brought forward. MiningWatch has brought this judicial review as a test case of the federal government’s obligations under s. 21. They made a strategic decision not to challenge the substantive scoping decision. When all the relevant considerations are taken into account, the appropriate relief is to allow the application for judicial review and declare that the responsible authority erred in failing to conduct a comprehensive study. No further relief is warranted. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond and there is no justification in requiring the proponent of the project to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the responsible authority.
Cases Cited
Referred to: Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, aff’g 2004 FC 1265, 257 F.T.R. 212; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Campbell, [1999] 1 S.C.R. 565; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Reza v. Canada, [1994] 2 S.C.R. 394; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
Statutes and Regulations Cited
Canadian Environmental Assessment Act, S.C. 1992, c. 37, Preamble, ss. 1 to 60, 71, 72, 74, 76, 77.
Comprehensive Study List Regulations, SOR/94‑638, Preamble, s. 3, Sch., s. 16.
Exclusion List Regulations, 2007, SOR/2007‑108, s. 2, Sch. 1, s. 1.
Explosives Act, R.S.C. 1985, c. E‑17.
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2).
Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97‑181.
Regulatory Impact Analysis Statement, SOR/94‑636.
Agreements
Canada‑British Columbia Agreement for Environmental Assessment Cooperation (2004).
Authors Cited
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated September 2009).
Hobby, Beverly, et al. Canadian Environmental Assessment Act: An Annotated Guide. Aurora, Ont.: Canada Law Book, 1997.
Multidictionnaire de la langue française, 5e éd. Montréal: Québec Amérique, 2009.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Wade, H. W. R. Administrative Law, 10th ed. Oxford: University Press, 2009.
APPEAL from a judgment of the Federal Court of Appeal (Desjardins, Sexton and Evans JJ.A.), 2008 FCA 209, [2009] 2 F.C.R. 21, 379 N.R. 133, 36 C.E.L.R. (3d) 159, [2008] F.C.J. No. 945 (QL), 2008 CarswellNat 1699, setting aside a decision of Martineau J., 2007 FC 955, [2008] 3 F.C.R. 84, 33 C.E.L.R. (3d) 1, 318 F.T.R. 160, [2007] F.C.J. No. 1249 (QL), 2007 CarswellNat 3169. Appeal allowed.
Gregory J. McDade, Q.C., and Lara Tessaro, for the appellant.
Kirk N. Lambrecht, Q.C., and Michele E. Annich, for the respondents the Minister of Fisheries and Oceans, the Minister of Natural Resources and the Attorney General of Canada.
Brad Armstrong, Q.C., Diana Valiela and Heather M. Cane, for the respondents the Red Chris Development Company Ltd. and the BCMetals Corporation.
Gary A. Letcher and Laura M. Gill, for the interveners the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia.
Richard D. Lindgren and Kaitlyn Mitchell, for the interveners the Canadian Environmental Law Association, the West Coast Environmental Law Association, the Sierra Club of Canada, the Quebec Environmental Law Centre, Friends of the Earth Canada and the Interamerican Association for Environmental Defense.
The judgment of the Court was delivered by
Rothstein J. —
1. Introduction
[1] The Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA” or the “Act”) is a detailed set of procedures that federal authorities must follow before projects that may adversely affect the environment are permitted to proceed. The Act and its regulations provide for different levels of intensity with which environmental assessments are to be performed depending upon the nature of the project under scrutiny. In practice, the intensity with which an environmental assessment should be conducted determines the “track” on which the assessment proceeds, whether by screening, comprehensive study, mediation or review panel.
[2] The issue in this appeal is whether the environmental assessment track is determined by the project as proposed by a proponent or by the discretionary scoping decision of the federal authority. In my opinion, the Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a federal authority to change that level.
2. Facts
[3] Red Chris Development Company and BCMetals Corporation (“Red Chris”) seek to develop a copper and gold open pit mining and milling operation in north‑western British Columbia. The appellant (MiningWatch) is a non‑profit society interested in the environmental, social, economic, health and cultural effects of mining and in particular its effects on indigenous people.
A. The Provincial Assessment Process
[4] On October 27, 2003, Red Chris submitted a project description to the BC Environmental Assessment Office (“BCEAO”). The BCEAO issued an order stating that the project would require an environmental assessment certificate before proceeding. The BC assessment proceeded smoothly. Red Chris prepared terms of reference covering all aspects of the project and made them available for comment by a working group (which included provincial and federal agencies, and the local First Nations groups). Red Chris also sought public comment on the project through several open house meetings. Once Red Chris submitted its application, the BCEAO posted the application online for public comment. Members of the public submitted several comments in response to the proponent’s application. On July 22, 2005, the BCEAO released its environmental assessment concluding that the project “is not likely to cause significant adverse, environmental, heritage, social, economic or health effects”. On August 24, 2005, the province issued an assessment certificate.
B. The Federal Assessment Process
[5] On or about May 3, 2004, Red Chris triggered the federal environmental assessment process under ss. 5(1)(d) and 5(2) of the CEAA by submitting to the Department of Fisheries and Oceans (“DFO”) applications for dams required to create a tailings impoundment area (an area in a small valley to be used for the permanent storage of mining effluent). DFO concluded that a federal environmental assessment would be required. On or about May 21, 2004, a “Notice of Commencement of an environmental assessment” was posted on the Canadian Environmental Assessment Registry website stating that DFO, as a “responsible authority” (“RA”), would conduct a comprehensive study of the project and described the project as an
OPEN PIT MINE WITH ASSOCIATED INFRASTRUCTURE INCLUDING TAILINGS IMPOUNDMENT AREA, ACCESS ROADS, WATER INTAKE, TRANSMISSION LINES AND ACCESSORY BUILDINGS (E.G. MAINTENANCE, CAMPSITE) The scope of the project will be added when available.
In a letter from DFO to other federal departments, DFO stated that a comprehensive study was required because the project’s proposed ore production was great enough that it fell within the provisions of the Comprehensive Study List Regulations, SOR/94-638 (“CSL”), promulgated under the CEAA.
[6] On June 2, 2004, Natural Resources Canada (NRCan) responded to this letter and announced that it was also a RA in addition to DFO because Red Chris required an approval under the Explosives Act, R.S.C. 1985, c. E-17. DFO and NRCan prepared to conduct a comprehensive study until December 9, 2004, when DFO wrote a letter to the Canadian Environmental Assessment Agency advising that it had scoped the project such that it excluded the mine and the mill. DFO later finalized the scope of the project as only including the tailings impoundment area and the water diversion system with ancillary facilities and the explosives storage and/or manufacturing facility. As a result, DFO determined that, as the mine and mill were no longer included in the project as scoped for environmental assessment, a comprehensive study was not necessary and the assessment would proceed by way of screening. On December 14, 2004, the online notice of commencement was retroactively amended to indicate that the project would be subject to a screening rather than a comprehensive study.
[7] On or about April 16, 2006, the federal screening report was released. The report stated that it was “based on information collected through the cooperative federal/provincial EA [environmental assessment] process”. The RAs did not seek additional public comment, relying instead on the BC environmental assessment and the public notice and responses under it. The report concluded that the project is not likely to cause significant adverse environmental effects. On May 2, 2006, the RAs made their decision to allow the project to proceed. A few days after this decision, the Screening Report was posted on the Canadian Environmental Assessment Registry website.
C. Application for Judicial Review
[8] On June 9, 2006, MiningWatch Canada filed an application in the Federal Court for judicial review of the decision to conduct a screening rather than a comprehensive study. It alleged a breach of the duty under the CEAA to conduct a comprehensive study and to consult the public on the scope of the assessment.
3. Judicial History
A. Federal Court, 2007 FC 955, [2008] 3 F.C.R. 84
[9] Martineau J. allowed the application for judicial review. He concluded that DFO had been correct in first determining that the project required a comprehensive study. He found that the language of s. 21 of the CEAA, as amended in 2003, made public consultation mandatory for comprehensive studies and that DFO and NRCan had breached their duty under the CEAA by scoping the environmental assessment to include only those aspects of the project that fell under federal jurisdiction.
[10] Martineau J. quashed the decision of DFO to issue permits and approvals to Red Chris and prohibited further action by DFO and NRCan until they had conducted public consultation under s. 21, completed a comprehensive study and complied with all other prerequisites to permit the project to be carried out.
B. Federal Court of Appeal, 2008 FCA 209, [2009] 2 F.C.R. 21
[11] Desjardins J.A., writing for a unanimous Federal Court of Appeal, allowed the appeal. The Court of Appeal found that “project” for federal environmental assessment purposes means “project as scoped” by a federal RA. Accordingly, a comprehensive study and public consultation are only mandatory where a project as scoped by the RA is listed in the CSL. Desjardins J.A. relied on the Federal Court of Appeal’s earlier decisions in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (“Sunpine”), and Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 (“TrueNorth”), and its conclusion that “project” in s. 5(1)(d) and s. 15(3) of the Act means “project as scoped”. Despite a recent amendment to s. 21, Desjardins J.A. found that TrueNorth was still binding because the introductory text in s. 21(1) was not altered by the amendment. The Federal Court of Appeal allowed the appeal, set aside Martineau J.’s order and dismissed the application for judicial review.
4. Issue
[12] The issue in the present case is whether DFO and NRCan as responsible authorities under the CEAA have been conferred discretion under the CEAA to determine whether an environmental assessment proceeds by way of a screening or comprehensive study.
5. Analysis
[13] The relevant legislative and regulatory provisions are attached in the Appendix.
A. Procedural Options Under the CEAA
[14] The CEAA is, in the words of its formal title, “[a]n Act to establish a federal environmental assessment process”. It provides a process for integrating environmental considerations into planning and decision making (CEAA, Preamble; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 71). In broad overview, the Act sets forth five potential procedural options or tracks for environmental assessment depending upon the nature of the project, i.e., the physical work or physical activity to be reviewed. These five tracks vary in levels of intensity of assessment:
1. No Assessment
2. Screening
3. Comprehensive Study
4. Mediation
5. Review Panel
1) No Assessment
[15] Section 7 provides that if a project is described on the Exclusion List Regulations, 2007, SOR/2007‑108, or is required in response to an emergency, no environmental assessment need be carried out. Projects on this list are considered to have insignificant environmental effects. Projects in the Exclusion List Regulations, 2007 include, for example, the proposed maintenance or repair of a physical work (so long as it is not carried out in a national park, park reserve, national historic site or historic canal) (Exclusion List Regulations, 2007, Sch. 1, s. 1).
2) Screening
[16] The least intense environmental assessment track is termed a “screening”. If a proposed project does not appear in the exclusion list or the comprehensive study list (discussed below), then a screening is required pursuant to s. 18 of the Act. Projects requiring a screening are those considered to have some potential for adverse environmental effects, but those effects are not considered to be significant enough to warrant the more intense assessments discussed below.
3) Comprehensive Study, Mediation, and Review Panel
[17] Finally, comprehensive studies, mediation and review panels all arise from the listing of a proposed project in the CSL. Under s. 21.1(1) of the Act, if a project is described in the CSL the Minister of the Environment has three options. One is to refer the project to a RA (generally a federal department or agency) to proceed with a comprehensive study. A second is to refer the project to a mediator if all interested parties agree. A third is to refer the project to a review panel. Projects in the CSL are those considered likely to have significant adverse environmental effects (CSL Preamble). A mine or mill with a proposed capacity above the specified threshold is listed in the CSL (CSL, Sch., s. 16).
[18] Some of the more important requirements pertaining to projects in the CSL that do not apply to projects that require only a screening assessment are:
1) Mandatory public consultation at the outset and throughout the environmental assessment process (ss. 21 to 23).
2) A government funding program to facilitate public participation in the environmental assessment process (s. 58(1.1)).
3) Determination by the Minister as to whether the environmental assessment should be conducted as a comprehensive study by the RA or be referred to mediation or to a review panel (s. 21.1).
4) Determination by the Minister rather than a RA as to whether the project will cause significant adverse effects to the environment (s. 23).
5) Assessment of the purpose of the project and consideration of alternative means of carrying out the project and the environmental effects of the alternatives (s. 16(2)).
6) The need for a follow-up program (s. 16(2)).
7) The capacity of affected renewable resources to meet present and future needs (s. 16(2)).
Generally speaking, in comparison to a screening, projects in the CSL are subjected to more intensive assessment, Ministerial oversight and mandatory public consultation.
B. Interpretation of Section 21
[19] The provision under scrutiny in the present appeal is s. 21 of the CEAA. Section 21 initiates the set of procedures that RAs must follow when a project is listed in the CSL. The relevant portion of the section reads as follows:
21. (1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.
[20] The decision of the Federal Court of Appeal and the positions of the government and Red Chris on the proper interpretation of s. 21 are largely based on their interpretation of the application of s. 15(1) of the CEAA. They argue that s. 15(1), which grants the discretion to “scope” the project, i.e. define what aspects of the project will be included in the federal environmental assessment, includes the discretion to “track” the project (i.e. determine the level of assessment). In other words, they argue that determining the assessment track and determining the scope of the project are the same step in the assessment process. The “scoping” provision, s. 15(1), provides:
15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
(a) the responsible authority; or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.
[21] Red Chris and the government argue that s. 15(1) is of “general application” and confers on a RA the discretion to determine the scope of the project in relation to which an environmental assessment is to be conducted. Therefore, even though a project as proposed by a proponent (in this case a mine and mill) appears in the CSL, it is open to a RA to scope the project for federal environmental assessment purposes in a more limited way. The result is that the project as scoped by the RA is not in the CSL and therefore requires only a screening and not a comprehensive study. They, therefore, support the approach taken in this case by DFO and NRCan which scoped the project as the tailings impoundment area, water diversion system and explosives storage/manufacturing facility, none of which are listed in the CSL.
[22] They further point out that ss. 18 to 20 which set out the screening process and ss. 21 to 24 which set out the comprehensive study process follow s. 15. Section 18(1) commences with the words “[w]here a project is not described in the comprehensive study list”. Section 21 commences with the words “[w]here a project is described in the comprehensive study list” (Red Chris factum, at para. 72). Red Chris and the government argue that these “screening” and “comprehensive study” provisions follow directly after the “general” provisions which include s. 15(1). Therefore, the reference to “project” in ss. 18 and 21 is subject to the scoping discretion in s. 15(1). In other words, s. 15(1) gives RAs the discretion to scope a project and determine the track for assessment. (Red Chris factum, at para. 73).
[23] Red Chris and the government also argue that their interpretation provides the RAs with the flexibility required to address the specific circumstances of each project. This flexibility allows for the consideration of the nexus between the assessment and the federal authority, the area of expertise of the RA, the provincial assessment process, the coordination between the province and federal authorities, and the elimination of duplication (Red Chris factum, at para. 97, and government factum, at para. 77). They argue that the appellant’s interpretation, which provides that “project” means “project as proposed by the proponent”, leads to a rigid, inflexible and arbitrary approach to environmental assessment (Red Chris factum, at para. 85).
[24] There is perhaps a rationale for the interpretation proposed by Red Chris and the government. Where projects are subject to environmental assessment by both provincial and federal authorities, it is not unreasonable to think that such projects should not be subject to two, duplicative, environmental assessments. Duplication could be minimized by scoping the project for federal environmental assessment purposes on a more limited basis than the project as proposed by the proponent, and by focussing on matters within federal jurisdiction and the specific approvals sought from the federal government by the proponents of the project.
[25] However, s. 12(4) of the CEAA provides that in such cases, a federal RA may cooperate with the province in respect of the environmental assessment. Detailed provisions for coordination are set out in the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97-181, the Canada‑British Columbia Agreement for Environmental Assessment Cooperation (2004), and similar provincial-federal harmonization agreements across the country. Thus, Red Chris and the government’s policy arguments regarding duplication and coordination have been recognized in the CEAA and its regulations.
[26] Red Chris and the government rely heavily on two prior Federal Court of Appeal decisions, TrueNorth and Sunpine. In reaching its conclusion, the Federal Court of Appeal also relied on these prior decisions. However, I am of the opinion that the approach of the Federal Court of Appeal and that advocated by Red Chris and the government cannot be sustained. To the extent that the decisions relied on by Red Chris, the Government and the Federal Court of Appeal are inconsistent with the analysis that follows, these reasons now govern.
[27] The duty of this Court is to interpret the Act based on its text and context. A close reading of the relevant provisions of the CEAA leads to the conclusion that it is not within the discretion of the RA to conduct only a screening when a proposed project is listed in the CSL.
[28] The starting point in the statutory interpretation exercise is the definition section, s. 2, of the CEAA. “[P]roject” in relation to a physical work is defined in English as “any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work”. “Projet” is defined in French as “Réalisation — y compris l’exploitation, la modification, la désaffectation ou la fermeture — d’un ouvrage ou proposition d’exercice d’une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d’une catégorie d’activités concrètes désignée par règlement aux termes de l’alinéa 59b)”. The English definition of “project” expressly uses the word “proposed” and therefore means “project as proposed by the proponent”. Although the French definition does not use the word “proposed”, implicit in the French meaning of the word “projet” is the notion of proposal: [Translation] “Idea of something one proposes to accomplish ... the word projet relates to something done before the project is carried out, unlike the English word, which covers both senses.” (Multidictionnaire de la langue française (5e éd. 2009), at p. 1313. In any event, even if “projet” were broader than the English equivalent, the common meaning would favour the more restricted meaning (see Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56, per LeBel J.). Therefore, the starting point of this analysis is that the statutory definition of project is “project as proposed”.
[29] It is certainly possible that this definition may not apply to every use of the term “project” in the statute — particularly in the case of the CEAA where the term “project” appears well over 300 times. But, displacement of the defined term requires express words or necessarily implied context that Parliament did not intend for the definition to apply to that particular use of the term (Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400; R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 215). There is nothing in s. 18 or 21 to suggest that the term “project” as defined is not applicable or is displaced by the project as scoped by the RA under s. 15.
[30] The CSL itself provides some further support that “project” in s. 21 does not mean “project as scoped” by the RA. The English version of the CSL describes projects in terms of proposals. For example, the Schedule states:
16. The proposed construction, decommissioning or abandonment of
(a) a metal mine, other than a gold mine, with an ore production capacity of 3 000 t/d or more;...
The French equivalent reads:
16. Projet de construction, de désaffectation ou de fermeture:
(a) d’une mine métallifère, autre qu’une mine d’or, d’une capacité de production de minerai de 3 000 t/d ou plus;...
Inclusion of the word “proposed” in the English version of the CSL suggests that the opening words of s. 21 should be interpreted as “where a project ‘as proposed’ is described in the CSL” and not “where a project ‘as scoped by the RA’ is described in the CSL”. While again the French regulation does not expressly refer to “proposed”, as discussed above, implicit in the French definition of “projet” is the notion of proposal. In any case, there is certainly nothing in the term “projet” that suggests it means “project as scoped”.
[31] While it would be inappropriate to solely rely on regulations to interpret a provision of the governing legislation, the language in the regulations in the present case is consistent with the interpretation gleaned from the Act itself. In addition, the CSL is tightly linked to the CEAA. The CSL is one of the “[f]our regulations ... needed to make the Act work” (B. Hobby et al., Canadian Environmental Assessment Act: An Annotated Guide (1997), at p. III-1), and the proclamation of ss. 1 to 60, 71, 72, 74, 76 and 77 of the CEAA was delayed until the CSL and other key regulations were already in force (Order Fixing January 19, 1995 as the Date of the Coming into Force of Certain Sections of the Act, SI/95-11. CSL Registration date: October 7, 1994). In these circumstances it is appropriate to consider the regulations when interpreting the governing statute because “[w]hen regulations are made to complete the statutory scheme, they are clearly intended to operate together and to be mutually informing.” (Sullivan, at p. 370). See also Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565, at para. 26, and Deschamps J. in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 35).
[32] A further indication that this interpretation is consistent with the intent of Parliament is found in the respective roles of the RA and the Minister in conducting environmental assessments under the CEAA. The CEAA grants the Minister the authority to prescribe that certain projects or classes of projects are subject to a comprehensive study. Section 58(1)(i) provides:
58. (1) For the purposes of this Act, the Minister may
...
(i) make regulations prescribing any project or class of projects for which a comprehensive study is required where the Minister is satisfied that the project or any project within that class is likely to have significant adverse environmental effects.
Red Chris and the government’s interpretation of s. 21 would render this authority subject to the overriding authority of the RA, presumably under s. 15(1), to determine on a case‑by‑case basis whether the project would be subject to a comprehensive study. In other words, decisions of the Minister would be subordinate to decisions of the RA. The presumption in Canada, with a democratically elected responsible government, must be the other way around.
[33] I am unable to agree with the Federal Court of Appeal’s finding that there is “nothing in the context of the CEAA which indicates ... a different interpretation than [project‑as‑scoped by the RA]” (para. 49). The CSL includes classes of projects which the Minister has determined are likely to have significant adverse environmental effects (CEAA, s. 58(1)(i); CSL Preamble). It would follow that by authorizing the Minister to make such regulations and thereby determine which projects require a comprehensive study, Parliament intended the Minister to determine which projects did or did not require comprehensive study, not the RA. The Regulatory Impact Analysis Statement, SOR/94-636, supports that view:
The Comprehensive Study List (CSL) supplies greater certainty and efficiency by identifying which major projects will automatically be assessed more extensively.
[34] In sum, subject to my comments below about s. 15(2) and (3), when the term “project” in ss. 18 and 21 is considered in context, the correct interpretation is “project as proposed” and not “project as scoped”. This means that the determination of whether a project requires a comprehensive study is not within the discretion of the RA. If the project as proposed is listed in the CSL, a comprehensive study is mandatory.
C. The Discretion to Scope
[35] How, then, does the discretion conferred on the RA or Minister under s. 15(1) to determine the scope of a project for the environmental assessment fit within the scheme of the Act? I am of the opinion that tracking and scoping are distinct steps in the CEAA process. Generally, the RA does not have the discretion to determine the assessment track. However, once the appropriate track is determined, the RA does have the discretion to determine the scope of the project for the purposes of assessment.
[36] In the case of a project not in the CSL a screening is conducted in accordance with the scope of the project as determined by the RA under s. 15(1)(a), subject to the requirements of s. 15(2) and (3). The RA’s scoping decision is determinative.
[37] In the case of a project in the CSL, the answer is not as clear. However, I think it can be described in the following way. The RA, in its discretion under s. 15(1), and after ensuring public consultation in accordance with s. 21(1), determines the proposed scope of the project for purposes of the comprehensive study. Under s. 21(2)(a), the RA reports to the Minister on its determination of the scope of the project for the comprehensive study (and on the other matters on which the public was consulted under s. 21(1)) and recommends to the Minister to continue with the environmental assessment by means of a comprehensive study to be conducted by the RA, or alternatively that the Minister refer the project to a mediation or review panel under s. 21(2)(b).
[38] The Minister may remit the project to the RA to conduct the comprehensive study in accordance with its report on the scoping of the project under s. 21.1(1)(a), or refer the project to a mediator or to a review panel under s. 21.1(1)(b). In the event that the project is referred to a mediator or a review panel under s. 21.1(1)(b) the scope of the project is determined by the Minister after consulting with the RA pursuant to s. 15(1)(b).
D. Limits on the Discretion to Scope a Project
[39] Regardless of the assessment track, the RA or Minister’s discretion to scope a project and to scope the environmental assessment is outlined in s. 15. Section 15(1) grants the discretion to scope to either the Minister, in the case of mediation or a review panel, or the RA. However, the exercise of this discretion is limited by s. 15(3). Section 15(3) provides that an environmental assessment of a physical work shall be conducted in respect of every “construction, operation, modification, decommissioning, abandonment or other undertaking” in relation to the project. Consistent with the view that the “project as proposed by the proponent” is to apply in the absence of text or context to the contrary, the scoping of the project performed by the RA or Minister under s. 15(1) is subject to s. 15(3). In other words, the minimum scope is the project as proposed by the proponent, and the RA or Minister has the discretion to enlarge the scope when required by the facts and circumstances of the project. The RA or Minister is also granted further discretion by s. 15(2) to combine related proposed projects into a single project for the purposes of assessment. In sum, while the presumed scope of the project to be assessed is the project as proposed by the proponent, under s. 15(2) or (3), the RA or Minister may enlarge the scope in the appropriate circumstances.
[40] It follows, then, that the scoping discretion under s. 15(2) and (3) acts as an exception to the general proposition that the level of assessment is determined solely based on the project as proposed by the proponent. The Act assumes that the proponent will represent the entirety of the proposed project in relation to a physical work. However, as noted by the government, a proponent could engage in “project-splitting” by representing part of a project as the whole, or proposing several parts of a project as independent projects in order to circumvent additional assessment obligations (see Government factum, at para. 73). Where the RA or Minister decides to combine projects or to enlarge the scope under s. 15(2) or (3), it is conceivable that the project as proposed by the proponent might have only required a screening. However, when the RA or Minister considers all matters in relation to the project as proposed, the resulting scope places the project in the CSL. Where this occurs, the project would be subject to a comprehensive study.
[41] I should note that while, for federal environmental assessment purposes, a project will include the entire project as proposed, the RAs can, and should, minimize duplication by using the coordination mechanisms provided for in the Act. In particular, federal and provincial governments can adopt mutually agreeable terms for coordinating environmental assessments (s. 58(1)(c) and (d)). Full use of this authority would serve to reduce unnecessary, costly and inefficient duplication. Cooperation and coordination are the procedures expressed in the CEAA (see s. 12(4)).
[42] In the present case, the federal environmental assessment should have been conducted for the project as proposed by Red Chris. The proposed project was described in the CSL. Therefore, the requirements of s. 21 applied. The RAs were free to use any and all federal-provincial coordination tools available, but they were still required to comply with the provisions of the CEAA pertaining to comprehensive studies. The RAs in this case acted without statutory authority by conducting a screening.
6. Remedy
[43] The remedy awarded by the trial judge was pursuant to the discretion conferred upon him under s. 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7. Section 18.1(3) provides:
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
The question here is whether this Court may and should intervene with respect to remedy. The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given weight to all relevant considerations. See Reza v. Canada, [1994] 2 S.C.R. 394, at p. 404, Friends of the Oldman River Society, at pp. 76-77, and Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at pp. 587-88.
[44] In my respectful view, in exercising his discretion to grant the broad relief he did, the learned trial judge did not take account of a number of relevant and significant considerations. Because of this, he granted broader relief than was appropriate.
[45] Martineau J. set aside the RAs’ decision to proceed by way of screening and prohibited the issuing of permits and approvals under s. 5(1)(d) and s. 5(2) until the completion of a comprehensive study pursuant to s. 21 and, based thereon, a decision whether to permit the project to be carried out in whole or in part pursuant to s. 37. In simple terms, the parties have been ordered to substantially re‑do the environmental assessment. I do not think such relief is warranted.
[46] First, at para. 292, the trial judge states that “[i]t is not entirely clear to the Court why, once it had been determined the Project, as described by the RCDC, was included in the CSL, the decision was subsequently made to downgrade the extent of the assessment required to that of a screening.” While he says that he does not define the scoping decision to be “capricious and arbitrary” (para. 294), his reasons indicate a suspicion of the motive of the RAs. However, it is apparent that the environmental assessment was converted to a screening assessment on or about December 9, 2004, because of new information and because of the issuance of the TrueNorth decision by the Federal Court on September 16, 2004 (2004 FC 1265. 257 F.T.R. 212), after the initial scoping decision had been made. Indeed, the trial judge, in his reasons, quoted a letter of DFO dated December 9, 2004 to the Canadian Environmental Assessment Agency explaining that the RAs were influenced by new information and by the TrueNorth decision (para. 108). Yet, he still questioned the motives of the RAs in scoping. It is difficult to fault the RAs for following a decision of the Federal Court on the very matter with which they were dealing.
[47] Second, the trial judge does not appear to have considered that, although it is Red Chris that will be prejudiced by incurring further delay and costs as a result of his order, Red Chris did nothing wrong. The approach to the environmental assessment was determined by the government.
[48] Third, according to the evidence, Red Chris cooperated fully with the environmental assessment conducted by the BCEAO. It proposed terms of reference for a working group which included federal and provincial agencies and local First Nation groups. Red Chris sought public comment on the project through several open house meetings. Once Red Chris submitted its application for a provincial environmental assessment certificate, the BCEAO posted the application online for public comment, and members of the public submitted several comments in response to the Red Chris application. These facts do not appear to have been considered by the trial judge in exercising his discretion to grant relief.
[49] Further, in a letter to the Deputy Minister of Natural Resources Canada dated August 24, 2006, MiningWatch stated that it “brought this application as a test case of the federal government’s obligations under section 21”. It would be incorrect to say that the parties in test cases may not still be interested in preserving their claims that gave rise to the litigation in the first place. However, this is not such a case.
[50] MiningWatch says it has no proprietary or pecuniary interest in the outcome of the proceedings (affidavit of Joan Kuyek, A.R. vol. 2, p. 1, at para. 32). MiningWatch did not participate in the environmental assessment conducted by the BCEAO. Its first involvement was in commencing judicial review in the Federal Court. It has not brought forward any evidence of dissatisfaction with the environmental assessments conducted by the BCEAO or the RAs; nor is there evidence of dissatisfaction with the assessment process from anyone else. MiningWatch says it has brought this judicial review as a test case of the federal government’s obligations under s. 21. Indeed, they made a strategic decision not to challenge the substantive scoping decision. This is an appropriate case in which to take the position expressed by MiningWatch at face value. A declaration as to the proper interpretation of s. 21 and the obligations of the federal government achieves MiningWatch’s stated objective and grants a substantial portion of the relief it requested.
[51] In my opinion, the appropriate relief in this case would be to allow the application for judicial review and declare that the RAs erred in failing to conduct a comprehensive study. Pursuant to s. 18.1(3) of the Federal Courts Act, I would decline to grant any further relief.
[52] I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the CEAA to stand in this case. But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought. However, because such discretionary power may make inroads upon the rule of law, it must be exercised with the greatest care. See H. W. R. Wade, Administrative Law (10th ed. 2009), at p. 599 and Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 361. In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved. See D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 3-88 and 3-89, referred to by Binnie J. in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 36. Such considerations will include any disproportionate impact on the parties or the interests of third parties (Brown and Evans, at p. 3-88, footnote 454). In my respectful opinion, that is the situation here. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond. On the other hand, I can see no justification in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the RAs.
7. Disposition
[53] I would allow the appeal with costs throughout on a party and party basis, allow the application for judicial review and issue a declaration that the RAs erred in failing to use the project as proposed by Red Chris to determine whether the CEAA was triggered under s. 5, whether the Exclusion List Regulations, 2007 applied, and if a federal environmental assessment was to be conducted, whether it was to proceed by way of a comprehensive study if the project was listed in the CSL and if not, by way of screening. I would decline to grant any further relief. Although requested by MiningWatch, this is not a case for solicitor-client costs. There is no misconduct or other reason for an award other than the usual party-party award of costs that normally follows the event.
APPENDIX
Canadian Environmental Assessment Act, S.C. 1992, c. 37
[Preamble]
...
WHEREAS environmental assessment provides an effective means of integrating environmental factors into planning and decision‑making processes in a manner that promotes sustainable development;
2. (1) In this Act,
...
“project” means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or
(b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b);
...
« projet » Réalisation — y compris l’exploitation, la modification, la désaffectation ou la fermeture — d’un ouvrage ou proposition d’exercice d’une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d’une catégorie d’activités concrètes désignée par règlement aux termes de l’alinéa 59b).
“responsible authority”, in relation to a project, means a federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted;
[Projects requiring environmental assessment]
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
...
(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
[Projects requiring approval of Governor in Council]
(2) Notwithstanding any other provision of this Act,
(a) an environmental assessment of a project is required before the Governor in Council, under a provision prescribed pursuant to regulations made under paragraph 59(g), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part;
[Exclusions]
7. (1) An assessment of a project is not required under section 5 or sections 8 to 10.1, where
(a) the project is described in an exclusion list;
(b) the project is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or
(c) the project is to be carried out in response to an emergency and carrying out the project forthwith is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
...
12. ...
[Cooperation with other jurisdictions]
(4) Where a screening or comprehensive study of a project is to be conducted and a jurisdiction has a responsibility or an authority to conduct an assessment of the environmental effects of the project or any part thereof, the responsible authority may cooperate with that jurisdiction respecting the environmental assessment of the project.
[Scope of project]
15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
(a) the responsible authority; or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.
[Same assessment for related projects]
(2) For the purposes of conducting an environmental assessment in respect of two or more projects,
(a) the responsible authority, or
(b) where at least one of the projects is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority,
may determine that the projects are so closely related that they can be considered to form a single project.
[All proposed undertakings to be considered]
(3) Where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work that is proposed by the proponent or that is, in the opinion of
(a) the responsible authority, or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority,
likely to be carried out in relation to that physical work.
[Factors to be considered]
16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public that are received in accordance with this Act and the regulations;
(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and
(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.
[Additional factors]
(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means;
(c) the need for, and the requirements of, any follow‑up program in respect of the project; and
(d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.
[Screening]
18. (1) Where a project is not described in the comprehensive study list or the exclusion list made under paragraph 59(c), the responsible authority shall ensure that
(a) a screening of the project is conducted; and
(b) a screening report is prepared
[Public consultation]
21. (1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.
[Report and recommendation]
(2) After the public consultation, as soon as it is of the opinion that it has sufficient information to do so, the responsible authority shall
(a) report to the Minister regarding
(i) the scope of the project, the factors to be considered in its assessment and the scope of those factors,
(ii) public concerns in relation to the project,
(iii) the potential of the project to cause adverse environmental effects, and
(iv) the ability of the comprehensive study to address issues relating to the project; and
(b) recommend to the Minister to continue with the environmental assessment by means of a comprehensive study, or to refer the project to a mediator or review panel in accordance with section 29.
[Minister’s decision]
21.1 (1) The Minister, taking into account the things with regard to which the responsible authority must report under paragraph 21(2)(a) and the recommendation of the responsible authority under paragraph 21(2)(b), shall, as the Minister considers appropriate,
(a) refer the project to the responsible authority so that it may continue the comprehensive study and ensure that a comprehensive study report is prepared and provided to the Minister and to the Agency; or
(b) refer the project to a mediator or review panel in accordance with section 29.
[Decision final]
(2) Despite any other provision of this Act, if the Minister refers the project to a responsible authority under paragraph (1)(a), it may not be referred to a mediator or review panel in accordance with section 29.
[Public notice]
22. (1) After receiving a comprehensive study report in respect of a project, the Agency shall, in any manner it considers appropriate to facilitate public access to the report, publish a notice setting out the following information:
(a) the date on which the comprehensive study report will be available to the public;
(b) the place at which copies of the report may be obtained; and
(c) the deadline and address for filing comments on the conclusions and recommendations of the report.
[Public concerns]
(2) Prior to the deadline set out in the notice published by the Agency, any person may file comments with the Agency relating to the conclusions and recommendations and any other aspect of the comprehensive study report.
[Decision of Minister]
23. (1) The Minister shall, after taking into consideration the comprehensive study report and any comments filed pursuant to subsection 22(2), refer the project back to the responsible authority for action under section 37 and issue an environmental assessment decision statement that
(a) sets out the Minister’s opinion as to whether, taking into account the implementation of any mitigation measures that the Minister considers appropriate, the project is or is not likely to cause significant adverse environmental effects; and
(b) sets out any mitigation measures or follow‑up program that the Minister considers appropriate, after having taken into account the views of the responsible authorities and other federal authorities concerning the measures and program.
[More information required]
(2) Before issuing the environmental assessment decision statement, the Minister shall, if the Minister is of the opinion that additional information is necessary or that there are public concerns that need to be further addressed, request that the federal authorities referred to in paragraph 12.3(a) or the proponent ensure that the necessary information is provided or actions are taken to address those public concerns.
[Time for statement]
(3) The Minister shall not issue the environmental assessment decision statement before the 30th day after the inclusion on the Internet site of
(a) notice of the commencement of the environmental assessment;
(b) a description of the scope of the project;
(c) where the Minister, under paragraph 21.1(1)(a), refers a project to the responsible authority to continue a comprehensive study,
(i) notice of the Minister’s decision to so refer the project, and
(ii) a description of the factors to be taken into consideration in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained; and
(d) the comprehensive study report that is to be taken into consideration by a responsible authority in making its decision under subsection 37(1) or a description of how a copy of the report may be obtained.
[Use of previously conducted environmental assessment]
24. (1) Where a proponent proposes to carry out, in whole or in part, a project for which an environmental assessment was previously conducted and
(a) the project did not proceed after the assessment was completed,
(b) in the case of a project that is in relation to a physical work, the proponent proposes an undertaking in relation to that work different from that proposed when the assessment was conducted,
(c) the manner in which the project is to be carried out has subsequently changed, or
(d) the renewal of a licence, permit, approval or other action under a prescribed provision is sought,
the responsible authority shall use that assessment and the report thereon to whatever extent is appropriate for the purpose of complying with section 18 or 21.
[Necessary adjustments]
(2) Where a responsible authority uses an environmental assessment and the report thereon pursuant to subsection (1), the responsible authority shall ensure that any adjustments are made to the report that are necessary to take into account any significant changes in the environment and in the circumstances of the project and any significant new information relating to the environmental effects of the project.
[Decision of responsible authority]
37. (1) Subject to subsections (1.1) to (1.3), the responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to subsection 23(1), the comprehensive study report:
(a) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate,
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances,
the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part; or
(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part.
[Powers to facilitate environmental assessments]
58. (1) For the purposes of this Act, the Minister may
...
(c) enter into agreements or arrangements with any jurisdiction within the meaning of paragraph 40(1)(a), (b), (c) or (d) respecting assessments of environmental effects;
(d) enter into agreements or arrangements with any jurisdiction, within the meaning of subsection 40(1), for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of projects of common interest;
...
(i) make regulations prescribing any project or class of projects for which a comprehensive study is required where the Minister is satisfied that the project or any project within that class is likely to have significant adverse environmental effects.
...
[Participant funding]
(1.1) For the purposes of this Act, the Minister shall establish a participant funding program to facilitate the participation of the public in comprehensive studies, mediations and assessments by review panels established under either subsection 33(1) or 40(2).
Comprehensive Study List Regulations, SOR/94‑638
[Regulations Prescribing Those Projects and Classes of Projects for Which a Comprehensive Study is Required]
Whereas the Governor in Council is satisfied that certain projects and classes of projects are likely to have significant adverse environmental effects;
...
GENERAL
3. The projects and classes of projects that are set out in the schedule are prescribed projects and classes of projects for which a comprehensive study is required.
SCHEDULE
PART V: MINERALS AND MINERAL PROCESSING
16. The proposed construction, decommissioning or abandonment of
(a) a metal mine, other than a gold mine, with an ore production capacity of 3 000 t/d or more;
...
(c) a gold mine, other than a placer mine, with an ore production capacity of 600 t/d or more;
16. Projet de construction, de désaffectation ou de fermeture :
(a) d’une mine métallifère, autre qu’une mine d’or, d’une capacité de production de minerai de 3 000 t/d ou plus;
Exclusion List Regulations, 2007, SOR/2007‑108
Whereas the Governor in Council is satisfied that the environmental effects of certain projects in relation to physical works are insignificant;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subparagraph 59(c)(ii) of the Canadian Environmental Assessment Act, hereby makes the annexed Exclusion List Regulations, 2007.
...
2. The projects and classes of projects that are set out in Schedule 1 and to be carried out in places other than a national park, park reserve, national historic site or historic canal are exempted from the requirement to conduct an assessment under the Act.
SCHEDULE 1
EXCLUSION LIST FOR PLACES OTHER THAN NATIONAL PARKS, PARK RESERVES, NATIONAL HISTORIC SITES OR HISTORIC CANALS
PART 1
GENERAL PROJECTS
1. The proposed maintenance or repair of a physical work.
Federal Courts Act, R.S.C. 1985, c. F‑7
[Application for judicial review]
18.1...
[Powers of Federal Court]
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Interpretation Act, R.S.C. 1985, c. I‑21
[Application of definitions and interpretation rules]
15. (1) Definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.
[Interpretation sections subject to exceptions]
(2) Where an enactment contains an interpretation section or provision, it shall be read and construed
(a) as being applicable only if a contrary intention does not appear; and
(b) as being applicable to all other enactments relating to the same subject‑matter unless a contrary intention appears.
Appeal allowed with costs.
Solicitors for the appellant: Ecojustice Canada, Vancouver.
Solicitor for the respondents the Minister of Fisheries and Oceans, the Minister of Natural Resources and the Attorney General of Canada: Department of Justice Canada, Edmonton.
Solicitors for the respondents the Red Chris Development Company Ltd. and the BCMetals Corporation: Lawson Lundell, Vancouver.
Solicitors for the interveners the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia: Edwards, Kenny & Bray, Vancouver.
Solicitors for the interveners the Canadian Environmental Law Association, the West Coast Environmental Law Association, the Sierra Club of Canada, the Quebec Environmental Law Centre, Friends of the Earth Canada and the Interamerican Association for Environmental Defense: Canadian Environmental Law Association, Toronto.
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