[1] The Groupe Maison Candiac Inc. [Groupe Candiac] is a company that works primarily in residential development. It buys large parcels of land, subdivides them, sometimes resells them, develops them and builds houses on them. Its activities are concentrated mainly on the South Shore of Montréal, primarily in the municipalities of La Prairie, Candiac and Saint-Philippe.

[2] On July 8, 2016, certain Groupe Candiac properties that were being developed were subject to an emergency order issued by the Governor in Council under the powers conferred by subparagraph 80(4)(c)(ii) of the Species at Risk Act, SC 2002, c. 29 [the Act]. The Governor in Council, on the recommendation of the Minister of Environment and Climate Change [the Minister], considers the order necessary to protect a small amphibian—the Western Chorus Frog—included on the List of Wildlife Species at Risk pursuant to the Act and whose population he considers to be facing imminent threats to its recovery.

[3] This order, entitled the Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population), SOR/2016-211 [the Emergency Order], prohibits, for all practical purposes, on pain of sanctions, any activities involving drainage, excavation, deforestation and infrastructure construction in the area to which it applies. Groupe Candiac believes that the Emergency Order, for all practical purposes, paralyzes its development activities on the lands in question when it already had an authorization certificate from the Minister of Sustainable Development, Environment and the Fight against Climate Change allowing it to proceed with this development, subject to the observance of a number of obligations aimed at protecting the Western Chorus Frog population in that area.

[4] Groupe Candiac is asking the Court pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c. F-7, to cancel the Emergency Order because it believes it was invalid considering that it was adopted under an enabling provision—subparagraph 80(4)(c)(ii) of the Act—which is ultra vires Parliament, because it constitutes a form of expropriation without compensation.

[5] For the reasons that follow, I will not allow the conclusions sought by Groupe Candiac.

II. Background

A. The protection of species at risk in Canada

[6] The protection of species at risk in Canada is not a new concept. Already, in 1917, Parliament, in response to the Convention for the Protection of Migratory Birds in the United States and Canada entered into the previous year by the United States and the United Kingdom, adopted the Migratory Birds Convention Act (SC 1917, c. 18). This main purpose of this convention was to establish a uniform protection system to preserve the useful and harmless species of migratory birds.

[7] In 1975, Canada ratified the Convention on International Trade in Endangered Species of Wild Fauna and Flora pursuant to which the Contracting States recognize:

that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come;
the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view;
that peoples and States are and should be the best protectors of their own wild fauna and flora;
that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade; and
the urgency of taking appropriate measures to this end.

[8] This convention was implemented in domestic law in 1992 with the adoption of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (SC 1992, c. 52). This Act specifically targets the protection of animal and plant species threatened with extinction by trade. The Minister is empowered to enter into agreements with provincial governments to ensure the harmonious and effective application of the Act. These agreements must, in particular, aim to avoid conflicts or duplication between the regulations established by the federal and provincial governments.

[9] Meanwhile, Canada signs a certain number of international agreements and conventions to protect certain endangered species or natural environments, such as the polar bear, porcupine caribou, and wetlands of international importance, particularly those that provide a habitat for waterfowl.

[10] The Earth Summit, held in Rio de Janeiro, Brazil, in June 1992 under the auspices of the United Nations, led to the signing of an important international agreement, the United Nations Convention on Biological Diversity [the Convention on Biological Diversity]. This convention, which was ratified by 196 countries, is founded on a certain consensus, with the Contracting Parties stating, in particular, that they are:

conscious of “the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity” and of “the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere”;
concerned “that biological diversity is being significantly reduced by certain human activities”; and
convinced “that the conservation of biological diversity is a common concern of humankind.”

[11] Each Contracting Party shall, as far as possible and as appropriate, “promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings,” “rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies” and “develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations” (Article 8). Each Party shall, in accordance with its particular conditions and capabilities, “develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned” (Article 6).

[12] In 1995, Canada revealed its strategy in response to the Convention on Biodiversity. This led to, in 1996, a federal-provincial Accord for the Protection of Species at Risk [the Accord], which provides that the ministers responsible for wildlife at both levels of government commit to a national approach for the protection of species at risk, the goal being to prevent them from becoming extinct as a result of human activity.

[13] The signing ministers recognized that species do not recognize jurisdictional boundaries, that cooperation is crucial to the conservation and protection of species at risk, and that lack of full scientific certainty must not be used as a reason to delay measures to avoid or minimize threats to species at risk. They agree to, among other things, coordinate their activities within a pan-national body—the Canadian Endangered Species Conservation Council—to resolve issues for the protection of species at risk in Canada as well as any disputes resulting from implementation of the Accord.

[14] They also agree to establish “complementary legislation and programs” that provide for “effective protection of species at risk throughout Canada.” According to the Accord, these programs and legislation will:

address all native wild species;
provide an independent process for assessing the status of species at risk;
legally designate species as threatened or endangered;
provide immediate legal protection for threatened or endangered species;
provide protection for the habitat of threatened or endangered species;
provide for the development of recovery plans within one year for endangered species and two years for threatened species that address the identified threats to the species and its habitat;
ensure multi-jurisdictional cooperation for the protection of species that cross borders through the development and implementation of recovery plans;
consider the needs of species at risk as part of environmental assessment processes;
implement recovery plans in a timely fashion;
monitor, assess and report regularly on the status of all wild species;
emphasize preventive measures to keep species from becoming at risk;
improve awareness of the needs of species at risk;
encourage citizens to participate in conservation and protection actions;
recognize, foster and support effective and long-term stewardship by resource users and managers, landowners, and other citizens; and
provide for effective enforcement.

[15] The Act, which was adopted in 2002, followed the implementation of the Canadian government’s strategy in response to the Convention on Biodiversity and the Accord. Its stated purpose is to prevent wildlife species “from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.” As Justice Martineau reminds us in Centre Québécois du droit de l’environnement v. Canada (Environment), 2015 FC 773 [Centre Québécois du droit de l’environnement], a case I will get back to because it falls within the factual framework of this case, the Act is therefore intended to implement Canada’s obligations under the Convention on Biodiversity (Centre Québécois du droit de l’environnement at paragraph 6).

[16] I will provide further details on the Act in my analysis.

[17] Quebec is doing well. In 1999, it adopted the Act respecting threatened or vulnerable species, CQLR c. E-12.01 [Act respecting threatened or vulnerable species]. This Act puts the Minister of Sustainable Development, Environment and Parks in charge of proposing to the Quebec government a policy of protection and management of designated threatened or vulnerable species or of species likely to be so designated. The Act respecting the conservation and development of wildlife, CQLR c. C-61.1, establishes various prohibitions that relate to the conservation of wildlife resources, including threatened or vulnerable species. The Environment Quality Act, CQLR c. Q-2, requires an authorization certificate for any person who wants to undertake any construction, work or activity in wetlands or bodies of water, in order to protect the environment and protect biodiversity. Municipalities also have authority under the Act respecting land use planning and development (CQLR c. A-19.1), to identify, in their zoning by-laws, zones dedicated to the conservation of fauna and flora.

[18] Since 2012, there has been an agreement between the governments of Quebec and Canada to protect and recover species at risk in Quebec. This agreement—the Cooperation Agreement for the Protection and Recovery of Species at Risk in Quebec—is founded on the recognition that cooperation between the two levels of government and the complementarity of their respective strategies is important to ensure, within the limits of their respective jurisdictions, more effective protection and recovery of species at risk. Essentially, this agreement establishes the principles and modes of cooperation between the two levels of government.

[19] According to the evidence in the record, there is a consensus among scientists about a steep decline in biodiversity indicators worldwide, with no sign of a slowdown. Moreover, we are currently experiencing the sixth period of mass extinction since life began on earth, but the first linked to human activity. In Canada, of the 976 species listed on November 1, 2016, by the Committee on the Status of Endangered Wildlife in Canada [COSEWIC], established under section 14 of the Act, 739, a proportion of 76%, are considered species at risk within the meaning of the Act (Scientific expert report on the protection of species and their habitats, Gabriel Blouin-Demers, PhD, Respondent’s Record, Volume 4, page 1248).

B. The Western Chorus Frog

[20] The Western Chorus Frog is a small amphibian. In adulthood, it is generally no more than 2.5 cm in length and weighs about 1 gram. It prefers marshes and wooded wetland areas for breeding. Also for breeding, it requires seasonally dry temporary ponds devoid of predators, particularly fish. It rarely moves more than 300 metres from its breeding ground throughout its life.

[21] In Canada, it is found mainly in southern Ontario and southwestern Quebec, mainly in the Outaouais and Montérégie regions. In Montérégie, where the lands targeted by the Emergency Order are located, this species occupies no more than 10% of its former range. Since the 1950s, its population in Quebec has declined an average of 37% every 10 years, which is a “catastrophic” trend, according to COSEWIC. One of the six metapopulations of Western Chorus Frog identified in Montérégie is in the La Prairie region, within the municipalities of Candiac and Saint-Philippe. This is the second largest metapopulation in Montérégie. A metapopulation consists of a set of local populations connected by connectivity areas allowing the movement of frogs from one population to the other (Affidavit of Mark Dionne, Respondent’s Record, Volume 1, page 3).

[22] The biggest threat to the Western Chorus Frog is that its habitats are on lands deemed suitable for urban or agriculture development. The resulting draining and filling of the land have a fatal effect on many individuals and significantly change the quality of the species’ habitat by causing the disappearance of temporary ponds essential for breeding, in particular.

[23] Since 2008, the Western Chorus Frog, Great Lakes / St. Lawrence – Canadian Shield population, has been listed as a “threatened species” under the Act. A “threatened species” is defined in section 2 of the Act as a “wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.” In Quebec, since 2001, it has been listed under the Act respecting threatened or vulnerable species as a “vulnerable wildlife species.” As a result, it was the subject of a recovery plan to halt the decline of its population. In 2008, a conservation plan that specifically addressed the Western Chorus Frog in the Montérégie region was adopted by the Quebec Minister of Natural Resources and Wildlife.

C. The Emergency Order

[24] The Emergency Order has its own story.

[25] According to subsection 80(1) of the Act, such an order can only be issued on the “recommendation of the competent minister.” However, according to subsection 80(2) of the Act, when this minister is of the opinion that a species on the list of wildlife species in Schedule 1 of the Act [the List of Wildlife Species at Risk], “faces imminent threats to its survival or recovery,” he or she must recommend to the Governor in Council that an emergency order be made.

[26] In this case, the Minister, who is the “competent minister” under section 80, initially refused to make such a recommendation. That was in March 2014. Specifically, the Minister rejected a request from Quebec environmentalist group Nature Québec, which, between May and October 2013, had asked the Minister to recommend the making of an emergency order. It claimed that there was an imminent threat to what may have remained of the Western Chorus Frog metapopulation in La Prairie, namely that of the “Bois de la Commune,” as a result of the deforestation and alteration of the wetlands surrounding the completion of a housing project called “Domaine de la Nature” (Centre Québécois du droit de l’environnement at paragraph 32).

[27] The Minister disagreed, considering that the scope of the project proposed in that sector did not threaten the possibility of the species’ presence elsewhere in Quebec and Ontario. The Minister therefore concluded that the Western Chorus Frog was not facing an imminent threat to its survival or recovery.

[28] This decision was set aside by Justice Martineau on June 22, 2015, in Centre québécois du droit de l’environnement. In particular, he rejected the Minister’s view that the mandatory requirement provided in subsection 80(2) of the Act is limited to cases where a species is exposed to imminent threats to its survival or recovery on a national basis. He deemed this view untenable and contrary to the Act:

[77] The Court has already rejected the restrictive interpretation suggested by the respondents—whereby the mandatory requirement provided in subsection 80(2) is limited to cases where a species is exposed to imminent threats to its survival or recovery on a national basis—in Adam, above, at para 39. Not only did the Minister arbitrarily and capriciously ignore the scientific opinion of her own Department’s experts and the Chorus Frog recovery team, but the Minister’s logic leads to an absurd outcome, in contradiction of the Act: as long as individuals of the species are threatened by human activity locally, an imminent threat cannot exist since other individuals elsewhere in the country are not under threat nationally.

[78] Through the lens of its complex mechanics, the federal Act perceives critical habitat as a single unit, each part contributing to the species’ survival and recovery across Canada. The two major threats to the Western Chorus Frog are urbanization and agricultural development. These threats are present across Canada. According to the evidentiary record, these two threats are extreme, serious, continuous and ongoing, and jeopardize the survival and recovery of the Western Chorus Frog in Canada. If we rely on the information that was available at the time of the disputed decision, the work included in the Domaine de la nature project will destroy a portion of the species’ critical habitat. The result is the brutal and sudden disappearance of the Bois de la Commune metapopulation in La Prairie—unless, of course, mitigation measures are taken to allow the species to recover in the area identified by the possible recovery program.

[Emphasis in original]

[29] Therefore, Justice Martineau ordered the Minister to reconsider her decision within six months following the judgment and to take account of the reasons for judgment and intervening developments.

[30] In July 2015, the Minister started the work leading to the reconsideration of her decision. Thus, she began a vast process of information gathering with a number of stakeholders from various backgrounds, governments, and so on. She also ordered three scientific evaluations from her department on, in particular, the imminent threats facing the Western Chorus Frog and the measures in place to protect it, including those imposed under Quebec legislation.

[31] On December 4, 2015, the Minister concluded that there was an imminent threat to the recovery of the Western Chorus Frog and recommended that the Governor in Council make an emergency order. She considered, among other things, that the measures taken to reduce the impact of the “Domaine de la Nature” housing project, renamed “Symbiocité,” would likely not ensure the long-term viability of the Western Chorus Frog population affected by the project.

[32] Almost at the same time as that decision, the Minister included in the Public Registry established by the Act [the Registry], the recovery strategy for the Western Chorus Frog, Great Lakes / St. Lawrence – Canadian Shield population, which sets out the measures required to halt or reverse the species’ decline. One of the short-term objectives of this strategy is to maintain the areas of occupied suitable habitat as well as the breeding population level within each local population. Another is to maintain the level of connectivity between the local populations comprising a metapopulation.

[33] On June 17, 2016, the Emergency Order was made. The total area of the zone included in the area covered by the order is 1.85 km². It was supposed to take effect on July 17, 2016. However, on July 8, 2016, the Governor in Council made a second emergency order with the same purpose and the same scope as the emergency order of June 17, 2016, but that would take effect immediately to counter the fact that work with heavy machinery continued to be observed in the area covered by the order, even after the order had been issued.

[34] The impact study conducted in conjunction with the Emergency Order specified that this was one of the issues leading to its adoption:

As the population of the Western Chorus Frog (GLSLCS) continues to decline, coupled with the threat to the connectivity and viability of existing metapopulations and the lack of adequate measures to protect its habitat, the Minister of the Environment concluded in December 2015 that, given the threat to the La Prairie metapopulation posed by the Symbiocité residential project, the recovery of the Western Chorus Frog (GLSLCS) is imminently threatened such that immediate intervention is required.

The Minister’s conclusion was informed by a scientific assessment based on the best available information, which determined that the planned future phases of residential development in La Prairie, as currently proposed, would result in the loss of connectivity among remaining populations in the La Prairie metapopulation and the direct loss of habitat, including breeding ponds. The areas remaining after such development are therefore unlikely to sustain the viability of the La Prairie metapopulation in the long-term. Therefore, without immediate intervention, the objectives as set out in the Recovery Strategy of the Western Chorus Frog (GLSLCS) are unlikely to be met. As a result, pursuant to subsection 80(2) of SARA, the Minister recommended to the Governor in Council that an Emergency Order be put in place to address the imminent threat to the Western Chorus Frog (GLSLCS). The Governor in Council accepted the Minister’s recommendation and the Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence - Canadian Shield Population) has been made.

[35] While precisely indicating its application area, the Emergency Order states it is prohibited to:

remove, compact or plow the soil;
remove, prune, damage, destroy or introduce any vegetation, such as a tree, shrub or plant;
drain or flood the ground;
alter surface water in any manner, including by altering its flow rate, its volume or the direction of its flow;
install or construct, or perform any maintenance work on, any infrastructure;
operate a motor vehicle, an all-terrain vehicle or a snowmobile anywhere other than on a road or paved path;
install or construct any structure or barrier that impedes the circulation, dispersal or migration of the Western Chorus Frog;
deposit, discharge, dump or immerse any material or substance, including snow, gravel, sand, soil, construction material, greywater or swimming pool water; and
use or apply a pest control product as defined in section 2 of the Pest Control Products Act or a fertilizer as defined in section 2 of the Fertilizers Act.

[36] It also states that any violation of these prohibitions constitutes an offence under section 97 of the Act, which stipulates that every person commits an offence who “contravenes a prescribed provision of a regulation or an emergency order.”

[37] In a statement issued in conjunction with the issue of the Emergency Order, the Minister announced that the owners of properties located in the area covered by the order would not be compensated.

D. Groupe Candiac’s remedy

[38] Groupe Candiac believes that the direct impact of the Emergency Order is that it prevents Groupe Candiac from carrying out its housing project as it was designed, costing the company around 20 million dollars.

[39] It brought this application on August 5, 2016. On March 24, 2017, Groupe Candiac filed a motion for leave to amend its notice of application for judicial review and to file a supplementary record and affidavits. With this amendment, it wants to be able to show that making the Emergency Order was unreasonable on the grounds that the population of chorus frogs in the area covered by the Order, and therefore on the properties owned by Groupe Candiac and subject to the order, was not properly classified. They are not Western Chorus Frogs but rather Boreal Chorus Frogs, a species that is not at risk.

[40] The motion was dismissed by the Court, because the proposed amendment would radically change the nature of the issues and would unduly delay the legal debate started before the Court. Groupe Candiac tried to have this decision overturned, but its appeal was dismissed by the Federal Court of Appeal (Groupe Maison Candiac Inc. v. Canada (Procureur général), 2017 CAF 216).

III. Issues and standard of review

[41] This case raises the following two issues:

a) Is subparagraph 80(4)(c)(ii) of the Act ultra vires Parliament, rendering the Emergency Order invalid?
b) Is the Emergency Order void on the grounds that it constitutes a form of expropriation without compensation?

[42] It has been well established that the standard of review applicable to the issues that challenge the constitutional validity of a statutory provision is that of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 58).

[43] Regarding the second issue, neither party addressed the standard of review that applies in this case. In any event, in my opinion, this issue can be determined as a pure question of law in respect of which neither the Governor in Council nor the Minister has particular expertise. This tends to favour the application of the standard of correctness (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339, at paragraphs 90-92). Moreover, this standard of review has generally been applied to issues challenging the vires of the exercise of regulatory power, and I see no reason to deviate from these earlier decisions, especially since this issue challenges, for all practical purposes, the applicability, in law, of the principles of de facto appropriation or disguised expropriation derived from private law to exercise the power of the Governor in Council under section 80 of the Act (Saputo inc. v. Canada (Attorney General), 2011 FCA 69, at paragraph 10; Syncrude Canada Ltd. v. Canada (Attorney General), 2014 FC 776, at paragraph 104 [Syncrude FC]; Canadian Generic Pharmaceutical Association v. Canada (Health), 2009 FC 725, at paragraph 43). This case does not challenge the reasonableness of the exercise of this power in the circumstances of this case, which, in my opinion, allows us to distinguish it from the case of West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, recently decided by the Supreme Court of Canada.

[44] The situation obviously would have been different if the Court had been called to decide on the legality of the Minister’s decision not to offer any compensation to the owners affected by the Emergency Order. However, that is not the issue before the Court.

IV. Analysis

A. Is subparagraph 80(4)(c)(ii) of the Act ultra vires Parliament?

(1) The applicable framework for evaluating the constitutionality of subparagraph 80(4)(c)(ii)

[45] The applicable test for determining the constitutional validity of a statutory provision in relation to the division of powers is well known. We must first examine the pith and substance of the provision in question. This means defining its primary purpose, thrust or dominant characteristic. To do so, the analysis must consider the purpose of the provision, namely the concerns it aims to address and its impact (R. v. Hydro-Québec, [1997] 3 SCR 213, at paragraph 113 [Hydro-Québec]; Reference re Firearms Act (Can.), 2000 SCC 31, at paragraphs 15-16, [2000] 1 SCR 783 [Firearms Reference]; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, at paragraphs 52-53 and 55, [2002] 2 SCR 146 [Kitkatla]; Canadian Western Bank v. Alberta, 2007 SCC 22, at paragraphs 26-27, [2007] 2 SCR 3 [Canadian Western Bank]; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, at paragraph 17, [2010] 2 SCR 536 [COPA]).

[46] This review is based on the text in this provision. It can also be based on extrinsic materials, such as parliamentary debates and government publications (Firearms Reference, at paragraph 17; Canadian Western Bank, at paragraph 27).

[47] Once this review is complete, we must consider if, based on its pith and substance, the provision in question falls under one of the legislative heads of power attributed by the Constitution Act, 1867[CA 1867] to the level of government that enacted it (Re: Anti-Inflation Act, [1976] 2 SCR 373, at page 450; Firearms Reference, at paragraph 25).

[48] If the provision falls within a jurisdiction attributed to this level of government, the provision is constitutionally valid and the analysis is complete. If that is not the case, the provision in question is not necessarily constitutionally invalid. In fact, it can still be saved by the ancillary powers doctrine if it has been sufficiently integrated in an otherwise valid legislative scheme (Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, at paragraph 45, [2000] 1 SCR 494; COPA, at paragraph 16; Kitkatla, at paragraph 58; Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, at paragraph 23, [2005] 3 SCR 302).

[49] It is useful, at this stage, to bear in mind an important principle of the pith and substance doctrine, namely, that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government (Canadian Western Bank, at paragraph 29). In other words, this doctrine tolerates in many respects the overlap of federal and provincial laws, a law that falls under the jurisdiction of one level of government can impact the jurisdiction of the other level of government (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3, at pages 68-69 [Oldman River]; Canadian Western Bank, at paragraphs 24 and 28). It also recognizes that certain subjects can have both a provincial and federal dimension. Thus, the fact that a matter may for one purpose and in one aspect fall within one level of government does not mean that it cannot, for another purpose and in another aspect, fall within the competence of another level of government (Canadian Western Bank, at paragraph 30; Reference re Assisted Human Reproduction Act, 2010 SCC 61, at paragraphs 184-185, [2010] 3 SCR 457 [Assisted Human Reproduction Reference]).

[50] I also think it is useful, at this stage, to bear in mind that environmental protection, which, as the Supreme Court of Canada noted in Oldman River, has become “one of the major challenges of our time,” is not in the list of legislative heads of power attributed to one of the levels of government by the Canadian Constitution (see also: Hydro-Québec, at paragraph 112). In this sense, it is an “abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty” (Oldman River, at pages 16 and 64). In this sense, the courts, when they are called on to define the extent to which each level of government can use its legislative powers in that regard, must bear in mind, while making sure to respect the fundamental balance of the division of powers by the CA 1867, that “the Constitution must be interpreted in a manner that is fully responsive to emerging realities and to the nature of the subject matter sought to be regulated” and that the “pervasive and diffuse nature of the environment” poses, in this sense, particular difficulties (Hydro-Québec, at paragraph 86).

[51] The Attorney General maintains that subparagraph 80(4)(c)(ii) of the Act constitutes a valid measure of criminal law. Alternatively, he claims that it was validly enacted pursuant to the introductory paragraph of section 91 of the CA 1867, which gives Parliament the power to make laws for the peace, order and good government of Canada. Alternatively, he argued that subparagraph 80(4)(c)(ii), if it must be deemed as falling outside of Parliament’s jurisdiction, is sufficiently integrated in an otherwise valid vast legislative scheme to be constitutionally saved.

[52] However, it is up to Groupe Candiac to establish that subparagraph 80(4)(c)(ii) is ultra vires Parliament (Firearms Reference, at paragraph 39).

[53] Before getting to the heart of the matter, a brief description of the structure of the Act and its key provisions is necessary first to clearly identify the legislative scheme that section 80 and subparagraph 80(4)(c)(ii) fall under.

(2) The Act

[54] As I already stated, the Act aims to prevent the disappearance of wildlife species and permit the recovery of those that, as a result of human activity, have become “extirpated,” “endangered” or “threatened.” It also aims to help manage “species of special concern” to prevent them from becoming endangered or threatened.

[55] These species are all “species at risk” within the meaning of the Act. They are defined as follows:

a) “extirpated” species means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild;
b) “endangered” species means a wildlife species that is facing imminent extirpation or extinction;
c) “threatened” species means a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction; and
d) species “of special concern” means a wildlife species that may become a “threatened” or an “endangered” species because of a combination of biological characteristics and identified threats.

[56] These four categories of species at risk are all “wildlife species,” meaning a species, subspecies, variety or geographically or genetically distinct population of animal, plant or other organism, other than a bacterium or virus, that is wild by nature and is native to Canada, or has extended its range into Canada without human intervention and has been present in Canada for at least 50 years.

[57] Essentially, the Act is comprised of three main elements: (i) adding wildlife species to the List of Wildlife Species at Risk; (ii) the development and implementation of recovery strategies and management plans for species listed as at risk; and (iii) the implementation of a system of prohibitions, with appropriate sanctions, and law enforcement activities under the Act.

a) Wildlife species listing process

[58] First, the Act established a process for listing wildlife species (sections 14 to 31). This process is guided by the COSEWIC, a committee of independent experts appointed by the Minister. These experts, as members of COSEWIC, are not part of the public service of Canada. COSEWIC’s main mission is to assess the status of each wildlife species it considers to be at risk and, as part of the assessment, identify existing and potential threats to the species. It is then responsible for classifying the species as extinct, extirpated, endangered, threatened or of special concern. It can conclude whether or not the species is at risk at the time of its assessment or it can indicate that it does not have sufficient information to render a decision. It is also responsible for periodically assessing the status of species at risk and, if appropriate, reclassifying or declassifying them (section 15).

[59] Once it has completed its assessment, COSEWIC must submit a copy of it to the Minister. The Minister must then indicate how the Minister intends to respond to the assessment and, to the extent possible, provide timelines for action (section 25). Then, the Governor in Council may, on the recommendation of the Minister, accept COSEWIC’s assessment and add the species in question to the List of Wildlife Species at Risk, decide not to add the species to the List, or refer the matter back to COSEWIC for further information or consideration. However, if, within nine months after receiving COSEWIC’s assessment, the Governor in Council still has not made a decision, the Minister shall, by order, amend the List of Wildlife Species at Risk in accordance with COSEWIC’s assessment (section 27).

[60] A wildlife species can also be listed on the Species at Risk List on an emergency basis when the Minister, at the request of any person, is of the opinion that there is an imminent threat to the survival of the species in question (section 28). When the Minister reaches this conclusion, the Minister must make a recommendation to the Governor in Council that the List be amended to list the species as an “endangered species” (section 29). Within one year after the making of the order, COSEWIC, after having a status report on the wildlife species prepared, must confirm to the Minister the classification of the species, recommend to the Minister that the species be reclassified, or recommend to the Minister that the species be removed from the list (section 30). The Minister may then make a recommendation to the Governor in Council with respect to amending the List (section 31).

b) Development and implementation of recovery strategies and management plans for any species listed as a “species at risk”

[61] Second, the Act provides a mechanism for developing and implementing recovery strategies for any species on the Species at Risk List (sections 37 to 55) or management plans for any wildlife species listed as a species of special concern (sections 65 to 72). When possible, such strategies and plans are developed in collaboration with any provincial or territorial minister in the province or territory where the species in question is found or any federal minister responsible for the area where the species is found. This duty of cooperation also extends to any Aboriginal organization that the competent minister believes is directly affected by the strategy or management plan, or to the wildlife management board established under a land claims agreement when the species is in an area where such a board performs functions in respect of wildlife species. Such a strategy must also be prepared in consultation with the landowners and any other persons whom the competent minister considers to be directly affected by the strategy (sections 39 and 66).

[62] In developing a recovery strategy for a given species, the competent minister must determine whether the recovery is technically feasible. If the recovery is determined feasible, the competent minister must ensure that the strategy addresses threats to the survival of the species and its habitat, and includes, among other things, a broad strategy to be taken to address those threats (section 41).

[63] The competent minister first prepares a proposed recovery strategy and includes it in the Registry (section 42). Within 60 days after it is included in the Registry, any person may file comments with the competent minister regarding the proposed recovery strategy (section 43). The competent minister must report on the implementation of any recovery strategy every five years (section 46). The same requirements apply to the development of a management plan for a wildlife species of special concern (sections 68 and 72).

[64] Moreover, any recovery strategy must be accompanied by one or more management plans developed by the competent minister based on the recovery strategy. The development of an action plan is subject to the same collaboration requirements as a recovery strategy (section 47). An action plan must include, with respect to the area to which the action plan relates, an identification of the species’ critical habitat, a statement of the measures that are to be taken to implement the recovery strategy for the species’ survival and the protection of its critical habitat, a statement of the methods to be used to monitor the recovery of the species and its long-term viability, and an evaluation of the socio-economic costs of the action plan and the benefits to be derived from it (section 49).

[65] Just as with the recovery strategy, any person may file written comments with the competent minister regarding any action plan included in the Registry by that minister.

[66] In implementing an action plan or management plan with respect to aquatic species, a migratory bird protected by the Migratory Birds Convention Act, 1994, SC 1994, c. 22 [Protected Migratory Bird], or any other wildlife species on “federal lands,” the competent minister makes any regulations that are necessary in the opinion of the competent minister (sections 59 and 71). An “aquatic species,” according to the definition given in the Act, means a wildlife species that is a fish, as defined in section 2 of the Fisheries Act, RSC 1985 c. F-14, or a marine plant, as defined in section 47 of that Act. “Federal land” is defined by the Act as three main categories of federal land: (i) land that belongs to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above that land; (ii) the internal waters of Canada and the territorial sea of Canada; and (iii) reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act, RSC 1985, c. I-5 (section 2).

[67] The competent minister must monitor the implementation of an action plan five years after the plan comes into effect. The follow-up report must discuss the progress toward meeting the objectives and the ecological and socio-economic impacts of its implementation (section 55).

c) System of prohibitions and law enforcement activities

[68] Finally, as the third main component, the Act establishes a prohibition system (sections 32 to 36 and 58 to 64), with sanctions (sections 97 to 119), the application of which is assured by law enforcement activities (sections 85 to 98).

[69] A first group of prohibitions concerns the individuals of a species at risk and its residence (sections 32 to 36). Thus, no person, on pain of sanction, shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an endangered or threatened species, nor shall any person possess, collect, buy or sell such an individual, or any part or derivative of such an individual (section 32). Also, no person shall damage or destroy the residence of an individual of a wildlife species that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada (section 33).

[70] These prohibitions, if they are not related to individuals of an aquatic species or species of Protected Migratory Birds, or their residence, do not apply in a province other than on federal lands unless it is stipulated in an order by the Governor in Council, adopted on the recommendation of the Minister. However, such a recommendation can be made only after the Minister has consulted the competent provincial minister. If, however, the Minister is of the opinion that the laws of the province do not effectively protect the species or the residences of its individuals, the Minister shall recommend that the Governor in Council make the order (section 34).

[71] This first group of prohibitions also protects the individuals of wildlife species that are not listed as species at risk under the Act but are classified as an endangered species or threatened species by a provincial or territorial minister. However, these prohibitions apply only to individuals and residences on federal land in the province or territory (section 36).

[72] A second group of prohibitions aims to protect the critical habitat of a species listed on the List of Wildlife Species at Risk (sections 58 to 64). Critical habitat means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species (section 2). Thus, no person shall destroy any part of the critical habitat of such a species if the critical habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada, or if the species is an aquatic species or a species of Protected Migratory Birds (section 58).

[73] This prohibition also applies to any part of the critical habitat of a wildlife species classified by a provincial or territorial minister as an endangered species, that is on federal land and that the provincial or territorial minister has identified as essential to the survival or recovery of the species. However, the prohibition applies only to the portions of this habitat that the Governor in Council may, on the recommendation of the competent minister, by order, specify (section 60).

[74] Moreover, no person shall destroy any part of the habitat of an endangered or threatened species on the List of Wildlife Species at Risk, other than an aquatic species or species of Protected Migratory Birds that is in a province or territory and that is not a part of federal lands. Once again, the prohibition applies only to the portions of this habitat that the Governor in Council may, on the recommendation of the competent minister, by order, specify. This recommendation can be made when a provincial or territorial minister requests it. However, it must be made if, after consultation with the appropriate provincial or territorial minister, the competent minister is of the opinion that there are no provisions in, or other measures under, this or any other Act of Parliament that protect the particular portion of the critical habitat and the laws of the province or territory do not effectively protect the critical habitat (section 61). Such an order expires five years after the day on which it was made and can be extended.

[75] Moreover, the Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of section 58, 60 or 61 (section 64). The regulations must prescribe the procedures to be followed in claiming compensation, the methods to be used in determining the eligibility of a person for compensation, the amount of loss suffered by a person and the amount of compensation in respect of any loss, and the terms and conditions for the provision of compensation.

[76] The offence and penalty regime associated with these two prohibition groups is set out in section 97 of the Act. Thus, every person commits an offence who contravenes subsection 32(1) or (2), section 33, or subsection 36(1), 58(1), 60(1) or 61(1). The severity of the penalty—a fine, imprisonment or both—varies depending on if there was a conviction on indictment or a summary conviction and on whether the offender is a corporation, a non-profit corporation or an individual. Moreover, section 108 allows alternative measures to be used to deal with a person who is alleged to have committed an offence, if certain conditions are met.

[77] However, this regime does not apply to a person who is engaging in activities “related to public safety, health or national security, that are authorized by or under any other Act of Parliament or activities under the Health of Animals Act and the Plant Protection Act for the health of animals and plants,” or activities “authorized under section 73, 74 or 78 by an agreement, permit, licence, order or similar document” (section 83). Section 73 gives the competent minister the power to enter into an agreement with a person—or issue a permit to a person—authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals if (i) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (ii) the activity benefits the species or is required to enhance its chance of survival in the wild; or (iii) affecting the species is incidental to the carrying out of the activity. Section 74 allows, under the conditions set out in section 73, an agreement, permit, licence, order or other similar document to be entered into, issued or made authorizing a person or organization to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals. According to section 78, the same is true for an agreement, permit, licence or order to be entered into, issued or made by a provincial or territorial minister under an Act of the legislature of a province or a territory.

[78] Lastly, the Minister, in implementing the system of prohibitions and offences established by the Act, has the powers vested in him or her under sections 85 to 96, which deal with law enforcement activities. Thus, the Minister has the authority to designate enforcement officers for the purposes of this Act, who are authorized, after obtaining a judicial warrant, to conduct inspections, searches and seizures at any location authorized by the warrant (sections 85 to 92). The Minister has the power to investigate any alleged offence under the Act. The Minister has the authority to investigate all matters that he or she considers necessary to determine the facts relating to the alleged offence (sections 93 and 94). The Minister may suspend or conclude the investigation if he or she is of the opinion that the alleged offence does not require further investigation or the investigation does not substantiate the alleged offence (section 95). At any stage of the investigation, the competent minister may send any documents or other evidence to the Attorney General for a consideration of whether an offence has been or is about to be committed, and for any action that the Attorney General may wish to take (section 95).

[79] Finally, this Act is binding on Her Majesty in right of Canada or a province (section 5). It is also based on the principle from the Convention on Biological Diversity that if there are threats of serious or irreversible damage to a wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty (Act, Preamble; also see: Centre québécois du droit de l’environnement, at paragraph 6).

(3) Section 80 of the Act

[80] Under section 80 of the Act, the Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species. The emergency order may identify any habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates. Before making a recommendation, the competent minister must consult “every other competent minister.” This “other competent minister” will be the Minister responsible for the Parks Canada Agency, the Minister of Fisheries and Oceans or the Minister, as applicable.

[81] Moreover, under subsection 80(2), the Minister must recommend to the Governor in Council that an emergency order be made if he or she is of the opinion that a species “faces imminent threats to its survival or recovery.”

[82] According to subsections 80(4)(a), (b) and (c)(i), this type of order may be made to protect an aquatic species, a species of Protected Migratory Bird or any other species on the List of Wildlife Species at Risk on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada.

[83] When an emergency order is made pursuant to one or more of these subparagraphs, it may provide for three things: (i) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates; (ii) include provisions requiring the doing of things that protect the species and that habitat; and (iii) include provisions prohibiting activities that may adversely affect the species and that habitat.

[84] Subparagraph 80(4)(c)(ii) allows the Governor in Council to make an emergency order to protect any species on the List of Wildlife Species at Risk, on land other than federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada. In other words, this provision allows the Governor in Council to make an emergency order to protect any species on the List of Wildlife Species at Risk, whether or not it is an aquatic or Protected Migratory Bird species and regardless of its range.

[85] Like an order made under subparagraphs 80(4)(a), (b) and (c)(i), an order made under subparagraph 80(4)(c)(ii) may identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates and include provisions prohibiting activities that may adversely affect the species and that habitat. However, it may not include provisions requiring the doing of things that protect the species and that habitat.

[86] Section 80, in its entirety, reads as follows:

Emergency order

Décrets d’urgence

80 (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.

80 (1) Sur recommandation du ministre compétent, le gouverneur en conseil peut prendre un décret d’urgence visant la protection d’une espèce sauvage inscrite.

Obligation to make recommendation

Recommandation obligatoire

(2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery.

(2) Le ministre compétent est tenu de faire la recommandation s’il estime que l’espèce est exposée à des menaces imminentes pour sa survie ou son rétablissement.

Consultation

(3) Before making a recommendation, the competent minister must consult every other competent minister.

(3) Avant de faire la recommandation, il consulte tout autre ministre compétent.

Contents

Contenu du décret

(4) The emergency order may

(4) Le décret peut :

(a) in the case of an aquatic species,

a) dans le cas d’une espèce aquatique :

(i) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(i) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,

(ii) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat;

(ii) imposer des mesures de protection de l’espèce et de cet habitat, et comporter des dispositions interdisant les activités susceptibles de leur nuire;

(b) in the case of a species that is a species of migratory birds protected by the Migratory Birds Convention Act, 1994,

b) dans le cas d’une espèce d’oiseau migrateur protégée par la Loi de 1994 sur la convention concernant les oiseaux migrateurs se trouvant :

(i) on federal land or in the exclusive economic zone of Canada,

(i) sur le territoire domanial ou dans la zone économique exclusive du Canada :

(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,

(B) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat, and

(B) imposer des mesures de protection de l’espèce et de cet habitat, et comporter des dispositions interdisant les activités susceptibles de leur nuire,

(ii) on land other than land referred to in subparagraph (i),

(ii) ailleurs que sur le territoire visé au sous-alinéa (i) :

(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and

(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,

(B) include provisions requiring the doing of things that protect the species and provisions prohibiting activities that may adversely affect the species and that habitat; and

(B) imposer des mesures de protection de l’espèce, et comporter des dispositions interdisant les activités susceptibles de nuire à l’espèce et à cet habitat;

(c) with respect to any other species,

c) dans le cas de toute autre espèce se trouvant :

(i) on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada,

(i) sur le territoire domanial, dans la zone économique exclusive ou sur le plateau continental du Canada :