Case information

Constitutional law — Division of legislative powers — Environmental protection — Criminal law — Whether Federal Court of Appeal made overriding error in finding that order at issue was not colourable intrusion upon jurisdiction of province of Quebec — Whether Federal Court of Appeal erred in widening exception for so called regulatory criminal provisions — Whether Federal Court of Appeal erred in finding that s. 64 of Species at Risk Act established compensation scheme that displaced art. 952 of Civil Code of Québec and that non-payment of compensation could not affect validity of order at issue — Species at Risk Act, S.C. 2002, c. 29, ss. 64 and 80(4)(c)(ii) — Civil Code of Québec, CQLR, c. CCQ 1991, art. 952 — Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population), SOR/2016 211.

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The applicant is a real estate promoter and builder. In 2010, with a view to the residential development of its lands, it obtained an authorization certificate from the province’s Ministère de l’Environnement that required it to create conservation zones on its property and to establish a monitoring program. In July 2016, on the recommendation of the federal Department of the Environment, and under the enabling provision of the Species at Risk Act, S.C. 2002, c. 29, the Governor in Council made an emergency order for the protection of the Western Chorus Frog, a species at risk that was present on the applicant’s lands, in order to prohibit activities that might destroy its habitat. The Federal Court dismissed the applicant’s application for judicial review, finding that the legislative provision was not ultra vires Parliament and that the emergency order was not a form of expropriation without compensation. The Federal Court of Appeal dismissed the applicant’s appeal, holding that the trial judge had not erred in finding that the provision was within Parliament’s criminal law power and that the absence of compensation did not make the emergency order invalid.