Earlier this month, the Ontario Superior Court of Justice released Reasons for Judgment in the closely watched climate change action of Mathur v Ontario. The applicants, a group of youths, commenced a suit against the Province of Ontario alleging that the Province had breached the Canadian Charter of Rights and Freedoms (the Charter) by abdicating its responsibility to address climate change.
In 2020, the Province lost a preliminary motion to have the claim dismissed on the basis that it was plain and obvious that the claim did not present a reasonable cause of action. However, after a full hearing on the merits, Justice Vermette agreed with the Province that its actions in addressing climate change did not violate the applicants’ s7 Charter rights to life and security of the person or their s15 right to equality.
The legislation at the center of the case is the Cap and Trade Cancellation Act 2018 (the CTCA). Section 16 of the CTCA repeals the Climate Change Act, which had established targets for reducing greenhouse gas (GHG), including a reduction of 37% below 1990 levels by the end of 2030. Under the new legislation, the Province implemented a less ambitious target of reducing GHG levels to 30% below 2005 levels by 2030. Notably, this target is out-of-sync with the commitments recently made by the Federal government. In March 2022, Canada submitted its most recent national GHG reduction targets under the Paris Agreement, announcing a target of 40-45% emissions below 2005 levels by 2030.
The applicant’s argued that the repeal of the Climate Change Act and its associated targets, and the passing of the new less ambitious targets, was unconstitutional as it deprived future generations of their rights to life and security of the person by subjecting them to the increasing negative effects of climate change. Further, it was argued that these negative effects would be experienced disproportionately by young people, a “generational cohort” characteristic analogous to the protected characteristic of age already recognized in Charter jurisprudence.
Justiciability
The Court first considered whether challenges on constitutional grounds to Ontario’s repeal of the Climate Change Act and introduction of the new target were reviewable by the courts.
The Court held that the applicable test is whether the question is purely political in nature, or whether it has a sufficient legal component to warrant the intervention of the judicial branch. Prior case law has held that challenges to state action under the Charter must involve specific legislation and/or state action. Questions involving generalised government policy are non-justiciable. The judicability of state action concerning climate change had been subject to divergent findings in other Canadian jurisdictions.
Here, the applicants challenged specific state action and legislation so the Court found this aspect of their claim was generally justiciable.
However, the Court found that the portion of the applicants’ claim which sought a determination of Ontario and Canada’s “fair share” of global carbon contributions was not justiciable, as the issue did not have a sufficient legal component to allow a court to choose among competing approaches.
Repeal of the Climate Change Act did not violate Charter rights
The Court rejected that the enaction of s16 of the CTCA, and corresponding repeal of the Climate Change Act, was itself a violation of the applicants’ Charter rights, because a mere change in the law cannot be the basis for a Charter violation. The Court held that “in the absence of a constitutional right that requires the government to act in the first place, there can be no constitutional right to the continuation of measures voluntarily taken, even where those measures accord with or enhance Charter values”.
Is there a state obligation to protect s7 rights?
The Court found the applicants’ complaint, at its core, was that “Ontario did not aim sufficiently high when setting the target” and therefore imposed an “increased risk of death and/or negatively impacts or limits the applicants’ security of the person”. Under normative Charter jurisprudence, the state has no obligation to ensure the provision of rights protected by s7. Rather, the state is simply obliged not to interfere with them. The arguments presented by the applicants raised the legal issue of whether s7 of the Charter imposes positive obligations on the state.
Despite no decisions having yet recognised a freestanding positive obligation on the state to protect s7 rights, the Supreme Court of Canada in Gosselin v. Quebec (Attorney General) 2002 stated that the Charter is a “living tree”, capable of adapting to changing societies, and that a freestanding positive state obligation might, in the future, exist in special circumstances.
Section 7’s adaptability to changing times has likewise been recognised in decisions of the Federal Court of Appeal, opining that, some day, the provision may evolve to encompass positive obligations, possibly in the domain of climate rights.
No breach of fundamental justice
Recognising that s7 of the Charter could, in theory, include positive state obligations, the Court analysed whether the government action of setting the target through s 3(1) of the CTCA was contrary to the existing principles of fundamental justice, assuming (and not deciding) that the state had positive obligations to protect the applicants’ s7 rights in this case.
The Court found the applicants had established that by setting the target at levels below what was required to avoid the accepted consequences of climate change, Ontario had contributed to an increase in the risk of death or risks to the security of the person. The Court rejected Ontario’s argument that it was necessary to show the risks would actually materialise. The Court also rejected the argument that Ontario’s GHG emissions causes no “measurable harm”, finding that “Ontario’s emissions contribute to climate change and the increased risk that it creates”.
Because the applicants had met their burden to prove the risks complained of were likely to occur, and assuming the state had positive obligations to prevent these risks from materialising, the Court next analysed whether the deprivations were in accordance with the principles of fundamental justice.
The appellants relied on two well-established principles of fundamental justice, the principles against arbitrariness and gross disproportionality, and one novel principle, the notion that “a government cannot engage in conduct that will, or could reasonably be expected to, result in the future harm, suffering, or death of a significant number of its own citizens".
The Court found that the principle against arbitrariness was not well suited to a positive claim case under s7. The test for arbitrariness under existing law requires a finding there is no rational connection between a government action’s purpose and its effects. The court found that the purpose of the target was to “reduce GHG in Ontario to address and fight climate change”. As the objective was not to completely eradicate the effects of climate change, it could not be said that the target had no rational connection to the purpose. The Court concluded “incrementalism and imprecision… do not lead to a conclusion of arbitrariness”.
Turning to the principle against gross disproportionality, the Court explained that this principle is infringed “if the impact of the restriction on the individual's life, liberty or security of the person is grossly disproportionate to the object of the measure”. The Court found that this principle had no application to this case, given that the applicants were not arguing that the target created too great an infringement on their rights. Indeed, they were arguing the opposite, namely that the target was not aggressive enough.
The Court found that previously recognised principles of fundamental justice were poorly suited to analysing a s7 Charter claim advanced under a positive rights and obligations framework. The Court next considered whether a proposed new principle of fundamental justice, societal preservation, ought to be recognised.
Principles of fundamental justice are concerned with how the legal system operates. They are not co-extensive with important public policies and state interests, and must instead be a basic tenet of the legal system. The Court found no support that “social preservation” met this requirement and found that adopting such a principle would create significant analytical challenges in applying the existing legal test for determining whether s7 rights have been infringed.
As the applicants were unsuccessful in establishing that the Province’s actions were contrary to any specific principal of fundamental justice, the claim under s7 was dismissed.
No breach of s15 right to equality
Unlike the potential for positive state obligations under s7 jurisprudence, it has been conclusively determined that s15 of the Charter does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation.
Despite agreeing with the applicants that young people are disproportionately impacted by climate change, the Court reasoned this disproportionate impact is caused by climate change itself, and not the target or the CTCA. Similarly, the worsening impacts of climate change are not caused by the disputed state action. Because the target and the CTCA have the purpose of reducing GHG emissions and moderating the effects of climate change, it cannot be said the effects of climate change are worsening because of the target or the CTCA.
Finally, the Court rejected the applicants’ arguments that a “generational cohort” characteristic was analogous to an age characteristic already recognised as protected under s15. The Court recognised that the “impacts of climate change will be experienced by all age groups in the future”, and that the “generational cohort” distinction was a temporal distinction that does not violate s15, because it is not based on an enumerated or analogous ground.
Conclusion
The Ontario Superior Court of Justice recognised that the natural world is rapidly changing. Unfortunately for the applicants in Mathur, the Canadian legal system has not yet changed in kind. Mathur represents an ambitious claim and carefully considered judgment regarding the nature of Charter rights in a world increasingly impacted by climate change. The Court made significant remarks regarding the existential threat posed by climate change and the potential existence of positive state obligations to take steps to fight climate change. However, these positive obligations, if recognised, would require adaptations of existing legal principles and tests. Justice Vermette was not prepared to rework the existing principles and tests to find in favour of the applicants. This case seems destined for the Court of Appeal where the applicants will no doubt hope to find a bolder approach to interpreting and expanding upon the current legal framework. Inspiration can perhaps be found in decisions such as Urgenda v Dutch Government and Neubauer v Germany.
Further youth action on the cards
This month we have also heard that the Hawaiian youth litigation against the Hawaiian Department of Transportation has been allowed to proceed to trial in the Autumn. It is alleged that the establishment, operation and maintenance of the state’s fossil fuel-based transportation system allows greenhouse gas emissions that violate the youth group’s rights under state constitutional law to a clean and healthful environment. This follows the litigation in Held v Montana and Juliana v US, all brought by youth groups.
Before that, the US trial in Held v Montana is due to begin on 12 June 2023, as the first ever constitutional climate trial and first ever children’s climate trial in US history. Again, the litigation asserts that by supporting a fossil fuel-driven energy system, which is contributing to the climate crisis, Montana is violating their constitutional rights to a clean and healthful environment; to seek safety, health, and happiness; and to individual dignity and equal protection of the law. The youths also argue that the state’s fossil fuel energy system is degrading and depleting Montana’s constitutionally protected public trust resources, including the atmosphere, rivers and wildlife.
Co-authored by Legalign colleagues Scott Harcus, Partner, AHBL Vancouver and Simon Konsta, Partner, DACB London.
