Can the Charter Protect Canadians Against Climate Change?

Floods and wildfires have displaced thousands. BC’s heat dome killed 600. It is not an exaggeration to say that climate change is having a profound impact on the rights of Canadians. At the same time, climate cases currently moving through Canadian courts are raising questions regarding whether and how citizens can hold governments to account for authorizing greenhouse gas (GHG) emissions that violate their Charter rights.

The common law has long said that for any right, there is a legal remedy. Increasingly, people facing climate change threats are turning to the courts, in a wave of climate litigation that has begun sweeping the world. Often led by youth, these cases involve citizens suing their governments for not doing enough to reduce their greenhouse gas (GHG) emissions on the basis that inadequate state action to mitigate climate is a violation of human rights. According to the Sabin Centre’s Climate Litigation Database, there have been 36 climate lawsuits outside of the US involving human rights claims, and numerous constitutional rights cases within the US.

Here in Canada, two merged cases against the federal government and another lawsuit against Ontario are similarly asking judges to order elected officials to do more to protect Canadians from climate-warming pollution. These cases raise fundamental questions about the role of governments in causing, and in preventing, climate change, and whether the Charter protects rights-holders from state-authorized impacts of the greatest environmental crisis of our time. It is probably only a matter of time until one or more end up at the Supreme Court of Canada.

La Rose v. Canada began as two distinct cases that were merged by the Federal Court of Appeal: La Rose, brought by a group of youth, and Misdzi Yikh v. Canada, brought by two Wet’suwet’en hereditary chiefs. The claimants are arguing that a network of federal laws, policies and other government action collectively operates to enable fossil fuel pollution, thereby depriving them of their constitutionally-protected rights to life, liberty and security of the person, under section 7 of the Charter, as well as their rights to equality under section 15.

Both La Rose and Misdzi Yikh were struck on motion in the Federal Court as being non-judiciable, but the Federal Court of Appeal has recently ruled that the section 7 claims should be allowed to proceed – with the petitioners providing more detail about precisely which government actions they are including in their challenge.

Justice Rennie rejected arguments that the complexity of climate change or the political nature of the government’s policy response make the issue not justiciable. He held that:

… policy considerations are inherent to all government action, but that fact alone does not insulate the law from judicial scrutiny. What matters in an assessment of justiciability, instead, is the presence of a sufficient legal component or legal anchor to the claim. [at para 36]

However, Rennie J.A. found that the claimants’ pleadings were overly broad and failed to “zero in” on specific laws or government action that constitute the deprivation to the section 7 rights, and upheld the motions’ judges decisions to strike the section 15 claims. He ordered that leave be granted to amend the claim respecting the section 7 violation, which leaves the door open for the youth and hereditary chiefs to continue to pursue their section 7 lawsuits.

Mathur v. Ontario is a case brought by seven youth concerning whether the Province of Ontario violated their section 7 Charter rights, and their section 15 equality rights, by weakening the province’s climate target and plan. After initially being allowed to proceed to a hearing, in 2020 the trial judge, Vermette J., ruled that the section 7 rights of Canadians are being violated, but the youth had failed to show that any violation of their section 7 rights was not in accordance with the principles of fundamental justice. The appeal of that decision was recently heard by the Ontario Court of Appeal (with West Coast Environmental Law intervening on its own behalf and on behalf of Environmental Defence Canada).

Justice Vermette rejected Ontario’s argument that the youth’s section 7 claim is not judiciable, but she also questioned whether the youth were making a positive-rights claim by arguing that Ontario must adopt a more stringent target and plan, and if so, whether such positive obligation should be imposed under section 7. This aspect of the decision, in conjunction with the claimants’ pleadings in La Rose and Misdzi Yikh, raise an important question about whether Canadians can hold governments to account for causing or allowing GHGs at levels that deprive rights-holders of their right to life, liberty and security of the person.

Climate change is a quintessential cumulative effect. Every sector of our economy contributes to climate change, and governments are either directly causing or permitting most GHGs that are emitted. La Rose and Misdzi Yikh illustrate the challenges with holding governments to account for each of the laws and actions that causing these cumulative GHGs. Mathur, on the other hand, illustrates the challenges associated with challenging a climate target and plan, which in effect direct how many GHGs the government intends to allow to be emitted in the province.

Together, these cases illustrate the risk of allowing concerns regarding justiciability, pleadings and positive vs negative rights distinctions to effectively shield government contributions to the gravest environmental threat against humanity from Charter review.

More positively, these cases confirm that Charter rights are affected by climate change. Those who would like to see the courts take action on climate change can celebrate that:

• Section 7 applies to climate change. All three cases accept (as a finding in Mathur and in principle in the other two cases) that the rights to life, liberty and security of the person guaranteed in section 7 of the Charter are infringed when Canadians are subjected to increased risks to their safety, including through climate change. It has been argued in the past that section 7 is about the justice system, rather than government decisions affecting safety more generally, but the courts have rejected that view. Vermette J. in the trial decision in Mathur wrote: “it is indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.”
• Courts can examine the climate impacts of government actions on Charter rights. All three cases confirm that while the relationship between government action and climate impacts is complicated, and raises important public policy questions, the courts are not barred from considering whether government action complies with the Charter. The government defendants in both cases had strongly argued that climate change raises such policy-laden issues that the courts should just (essentially) mind their own business.
• Governments all need to do their part. Governments have argued, both in these cases and before the Supreme Court of Canada in the carbon pricing reference, that their respective contributions to climate change are globally insignificant. The courts have uniformly rejected this argument, ruling (as the courts in other countries have done) that each country is responsible for its share of the global problem.

So there is reason to hope that the courts will rule for the claimants bringing these groundbreaking cases.

However, they also clearly have a long way to go. As noted above, in both cases the question focused on what government actions can be challenged (or if a government action is required) and against what standard the courts should judge those actions.

Another important area that the petitioners lost on was whether section 15 – the Charter’s equality rights guarantee – protects youth against the disproportionate impact of climate change on young people. So far no court has ruled in favour of this argument.

These cases are still before the courts. We’re waiting for the decision of the Ontario Court of Appeal in Mathur, and in La Rose and Misdzi Yikh the petitioners may amend their pleadings and proceed to hearing (unless the government of Canada appeals the Federal Court of Appeal’s decision to the Supreme Court of Canada). Time will tell whether one or more of the petitioners in these cases will win, establishing that governments have a Charter obligation to avoid dangerous climate change. However, the cases have already established important legal principles. It seems likely that, even if they are unsuccessful, these cases will help identify what type of legal challenge might be successful in the future. We will continue to watch them with interest, and to support them where we can.