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 today at the Court of Appeal for Ontario 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 argue 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 interpreted the claims as “freestanding positive obligations” and found that there was no violation of the Charter.
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.
Teagan Markin, pro bono counsel for the BCCLA, says:
“The Court’s approach to ‘positive rights’ in this case will have implications for all Charter claims asserting rights to equality and life, liberty and security of the person. Viewing claims through the lens of ‘positive rights’ risks allowing the government to avoid constitutional scrutiny, particularly in respect of functions such as health care, social services and climate policy that are closely connected to fundamental rights. Canadians are entitled to have their Charter rights assessed based on the established law, not assumptions about the government’s constitutional obligations.
Ga Grant, Staff Counsel for the BCCLA, says:
“We are deeply concerned with the use of the ‘negative rights’ to shield governments from assessments of constitutional rights, particularly when it comes to the social services the more vulnerable rely on. Climate justice includes assessing the government’s actions on climate change with the same principles as any other Charter challenge. Accountability means that the government must not violate Canadians’ rights to equality, life, liberty, and security of the person, period.”
The BCCLA is represented by Teagan Markin and Nadia Effendi of Borden Ladner Gervais LLP.
The BCCLA’s factum is available here.