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 case was dismissed on April 14, 2023, after which Mathur et al. filed an Appeal.

The BCCLA intervened in this appeal to argue that the challenges brought under ss. 7 and 15 of the Charter should not be dismissed simply because they could be characterized as “positive rights”. 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.

In a landmark decision, the Court of Appeal for Ontario held that by voluntarily assuming a statutory obligation to combat climate change and to produce a plan and target for that purpose, the Ontario government was obligated to do so in a manner that was constitutionally compliant. In other words, this was not a “positive rights” case and the impacts of the government’s greenhouse gas (GHG) emissions target must be consistent with the Charter rights of youth. The case was sent back for a full trial.

BCCLA is intervening in the trial to argue to support the court’s analysis of the s. 7 violations. In particular, there is no basis to apply a different framework under s. 7 of the Charter when the government claims to legislate incrementally or with the intention of balancing competing interests. Where a law is found to deprive claimants of life, liberty or security of the person, the means chosen by the government must be consistent with the principles of fundamental justice, including the principles against arbitrariness and gross disproportionality. Whether the law is effective in achieving its objectives, generates ancillary benefits for the public, or harms only a small proportion of the population are matters for justification under s. 1 of the Charter.

A law is arbitrary if its effects on s. 7 interests are inconsistent with or do not further the objective. Arbitrariness is concerned with whether those effects are connected to the law’s objective, not whether the law furthers the objective generally. Similarly, where there is no connection between the effects and the law’s objective, the purpose behind the government’s chosen means—including an incremental approach—may be examined to determine if it is grossly disproportionate to its effects, as the Supreme Court of Canada did in the PHS decision.