- Whether or not a claim is justiciable depends on whether it contains a sufficient legal component to warrant judicial intervention
- Two past Canadian climate cases have been thrown out at this stage after it was determined that they were non-justiciable;
- Turp v. Canada, 2012 FC
- Friends of the Earth v. Canada, 2008 FCA
- Please think about the following questions before proceeding to the next slide
- What distinguishes your cases from these past cases?
- What lessons can you learn from Tanudjaja about how to frame your Charter claim so that it is justiciable?
- Can you think of any recent Canadian decisions that may assist you in establishing justiciability?
- Hint: Environment Jeunesse v. Canada
- Unlike Friends of the Earth and Turp v Canada, your case involves a claim of Charter infringement. This distinction is significant because courts are less likely to hold that an issue is non-justiciable when the Charter is at play
- While the applicants in Tanudjaja did base their action on the Charter, the case was dismissed because it failed to identify specific government conduct that led to the Charter violation. By basing your claim on specific government actions/decisions you have hopefully overcome this obstacle.
- In order to establish that your issue is justiciable it may be a good idea to mention the decision in Environnement Jeunesse v. Canada. Despite dismissing the action on other grounds, the court did specifically acknowledge that the issue of whether the Government’s adoption of inadequate emission targets were a violation of section 7 Charter rights was a justiciable issue.
- See paragraphs 40 – 78 for the court’s reasoning on justiciability found here.
