One of the more interesting constitutional challenges to the Ford government’s policies lived to fight another day this week. The Ontario Court of Appeal — the highest court in the province and the last judicial stop before matters end up before the Supreme Court of Canada — issued its decision in Mathur v. Ontario, a challenge by numerous young Ontarians alleging that the government’s adoption of weaker climate targets after it took office in 2018 amounted to a breach of their Charter rights.
This week’s decision was a partial victory for the challengers: a lower court last year dismissed the case, but the unanimous decision from three judges at the Court of Appeal held that the prior judge had misapprehended the nature of the case. If the judges’ ruling had upheld that lower court’s finding, the chances of a successful appeal at the Supreme Court would have narrowed substantially; instead, the argument will continue.
(In 2021, TVO Today spoke with Sophia Mathur, then 14, about her role in the case.)
Whenever the Mathur case comes up, I like to practise some humility and acknowledge that, when the case was first announced, I mostly ignored it — in part because I was so skeptical of its chances in the courts. The Ontario government fought against the courts even giving the case a full hearing; it was when it lost that argument that I started paying closer attention.
So, what, exactly, is the argument here?
A group of young Ontarians has asserted that, when the Ford government adopted a substantially weaker climate target after the 2018 election, that amounted to a decision to knowingly cause harm to future generations. Each incremental tonne of emitted greenhouse gases makes the effects of climate change worse; Ontario’s decision to allow more GHG emissions will therefore cause more harms not only to people yet unborn but also to young Ontarians today, who will plausibly live into the late 21st century. The young appellants argue this breaches both Section 7 of the Canadian Charter of Rights and Freedoms (life, liberty, and security of the person) and Section 15 (discrimination based on age).
The initial judge who heard the case agreed with the government’s argument that it was an attempt to create, in effect, a constitutional requirement for more aggressive climate policy. Justice Marie-Andrée Vermette wrote last year that “the Applicants are not seeking the right to be free from state interference, i.e., they do not seek to be free from the Target or the Plan. Rather, they would prefer a more restrictive Target and Plan.” Vermette wrote in her decision that the courts were not the proper forum in which to make that kind of policy.
(While the government won the case overall, it was something of a pyrrhic victory: Vermette accepted as fact that “Ontario’s decision to limit its efforts to an objective that falls severely short of the scientific consensus as to what is required is sufficiently connected to the prejudice that will be suffered by the Applicants … By not taking steps to reduce GHG in the province further, Ontario is contributing to an increase in the risk of death and in the risks faced by the Applicants and others with respect to the security of the person.”)
This week, the Court of Appeal disagreed with Vermette’s decision, saying that the issue before the courts is ultimately simpler: Laws passed by provincial legislatures have to comply with the Charter, and Ontario’s climate target is enshrined in legislation. Therefore, the law has to comply with the Charter.
The court writes, in its decision, “The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter compliant. She erred by failing to consider the correct question.” (emphasis added) For the Court of Appeal, it’s precisely because there is no constitutional requirement for the province to have a climate target — something the Tories chose to enshrine in law anyway — that the matter deserves a hearing.
Stepping back for a moment: it’s notable that every court that’s heard this case so far has largely accepted as fact that the province’s climate policies are causing meaningful harms to young Ontarians. They differ primarily on the question of whether the judiciary is the proper body to effect a change to those policies.
This may sound like a win for the young appellants in this case, but it’s only a partial one: the Court of Appeal declined to order the government to adopt a stricter climate target and instead ordered that the case be retried so that a lower court can better hear the full range of evidence about what policies a government might pursue. It’s entirely possible that, even if the appellants eventually prevail with the last judicial word, that still might not guarantee more aggressive climate policy: the Court of Appeal decision notes that, in prior decisions such as Canada v. Khadr and Chaoulli v. Quebec, the Supreme Court ruled that some government actions were unconstitutional without directing the government to take specific steps as remedies.
There is as yet no guarantee that the Mathur appellants will prevail in a rehearing at a lower court. And, further, any decision by that court would itself be subject to appeals. Barring some kind of external intervention, divine or otherwise, this argument will continue for at least a few more years.
Donate