The Prerogative of High-Handedness

Today, the Federal Court of Canada has issued its decision in Turp v. Canada (Justice), 2012 FC 893, rejecting Daniel Turp’s challenge to the federal government’s decision to withdraw Canada from the Kyoto Protocol. Unambiguously correct in law, this decision illustrates the importance of politics, and the limits of the power of the courts to hold governments to account.

Mr. Turp contended that the decision to withdraw from the Kyoto Protocol was a violation of the Kyoto Protocol Implementation Act (KPIA) enacted by Parliament in 2007 and of the constitutional principles of the Rule of Law, separation of powers, and democracy. The government argued that it acted pursuant to the royal prerogative which gives the executive broad authority to conduct foreign affairs, including to enter in and withdraw from treaties, and that constitutional principles did not reduce this discretion.

The court acknowledged that a statute such as the KPIA can limit royal prerogative and direct the government’s action in an area where the prerogative, in the absence of legislation, would have made it discretionary. Such a limitation must, however, be expressed with some (though it is perhaps not clear how much) clarity. After examining the KPIA, the court finds that it simply does not do this. While its stated purpose is to ensure that Canada meets its obligations under the Kyoto protocol, the court points out that “the government’s decision to withdraw from the Protocol is clearly provided by article 27 of that Protocol and thus the government was in compliance with it.” Furthermore, the obligations the KPIA itself imposed on the government were not justiciable, and the statute has anyway now been repealed. There is no violation either of the statute or of the Rule of Law principle.

The court made short work of the remaining arguments based on the principles of separation of powers and democracy. Separation of powers is not infringed since the power to decide to withdraw from the Kyoto Protocol remained with the executive, not having been removed from it by statute. And any decision to consult Parliament, as the government had done before ratifying the Kyoto Protocol in 2002, is strictly voluntary. It is not constitutionally required.

In the realm of foreign policy, the government is for the most part constitutionally free to be stupid, to be high-handed, to act in disregard of Parliament’s wishes. It is for Parliament, and ultimately for the voters, to find remedies for these problems. Mr. Turp apparently intends to appeal, but he would be well advised not to waste his time and money on judicial battles, and to save his energy for politics.

2 thoughts on “The Prerogative of High-Handedness

  1. Pingback: The Art of Judging Art | Double Aspect

  2. Pingback: Not Even Close | Double Aspect

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