WHAT: BCCLA at the Court of Appeal for Ontario to intervene in Mathur et al. v. His Majesty the King in Right of Ontario to ensure that governments can be held accountable for violating Charter rights.
WHEN: January 15 & 16, 2024
WHERE: Court of Appeal for Ontario (Toronto)
Toronto, ON (traditional territories of the Mississaugas of the Credit, the Anishnaabe, the Chippewa, the Haudenosaunee, and the Wendat peoples) – The BC Civil Liberties Association (BCCLA) will make oral arguments as an intervenor at the Ontario Court of Appeal in Mathur et al. v. His Majesty the King in Right of Ontario, a case that will determine whether the impacts of government greenhouse gas (GHG) emissions must be consistent with the Charter rights of youth.
This case was brought by a group of Ontario youth who are arguing that Ontario’s 2030 GHG reduction targets are too weak and are based on inaccurate emission data. They claim that the resulting impacts of climate change violate youth Charter rights under s. 7, life, liberty and security of the person, and s. 15, equality rights. The Ontario Superior Court dismissed the claims because it interpreted them as “freestanding positive obligations”.
The BCCLA argues that challenges brought under ss. 7 and 15 of the Charter should not be dismissed simply because they could be characterized as raising what has been called a “positive right”. The Courts have developed robust analytical frameworks for assessing Charter challenges, and these frameworks recognize that rights under ss. 7 and 15 may have both positive and negative implications, depending on the context. Prematurely dismissing a claim because it raises a “positive right” without assessing whether that right is protected by the Charter under the established contextual frameworks turns this analysis on its head and undermines existing Supreme Court of Canada case law.
Crucially, an approach which encourages courts to dismiss claims prematurely based on whether the claimants seek a “positive right” risks immunizing large areas of government action from any Charter review. The government plays a fundamental role in providing basic services and functions such as health care, social services, and setting climate policy. Those services and functions are reviewable for constitutional compliance, regardless of whether the government has “freestanding” obligations to provide them in the first place.
The BCCLA is represented by Teagan Markin and Nadia Effendi of Borden Ladner Gervaise LLP.
The BCCLA’s factum is available here.
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