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Charter of Rights and Freedoms

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The Court of Appeal for Ontario (ONCA) today released its unanimous decision (the Decision) on an appeal of the dismissal of a youth-led constitutional challenge of Ontario’s emissions target (see our earlier bulletin here). The ONCA allowed the appeal, determining that the Ontario Superior Court (ONSC) application judge erred in characterizing the case as a positive rights case and remitted it to the ONSC for reconsideration. The case is the first in Canada to consider whether a government’s approach to climate change can violate the Canadian Charter of Rights and Freedoms (the Charter). This bulletin briefly provides key background details of the case and the main findings of the Decision.   Background. The appellants, seven Ontario youths, some of whom are Indigenous, brought an application for (i) a declaration that Ontario’s 30% reduction of greenhouse gas (GHG) emissions target (the Target) under section 3(1) of the Cap and Trade Cancellation Act, 2018 (the CTCA) – implemented through Ontario’s “A Made-in-Ontario Environmental Plan” (the Plan) – and section 16 of the CTCA, repealing Ontario’s Cap-and-Trade system, were unconstitutional as they violated their rights under sections 7 and 15 of the Charter, and (ii) an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise the Plan in accordance with international standards. The application judge dismissed the application. While the judge found the issue of the appellants’ sections 7 and 15 Charter rights justiciable, she characterized it as a positive rights claim and concluded that any deprivation of life or security of the person under section 7 was not contrary to fundamental justice, and that section 15 did not impose a positive duty on Ontario to act against climate change.   The Decision. The following is a brief overview of the ONCA’s main findings: The application judge erred in her analysis of the case as…

On November 12, 2020, Justice Carole Brown of the Ontario Superior Court of Justice dismissed a motion by the Attorney General of Ontario to strike out the Notice of Application in Mathur et. al. v. Her Majesty in Right of Ontario (the Application). The applicants, seven Ontario youths (the Applicants), are seeking to hold the Government of Ontario accountable for the Cap and Trade Cancellation Act, 2018 on the primary basis that it violates sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the Charter).   Ontario brought a motion to strike out the case arguing that (i) the Application is not justiciable; (ii) the Application is based on unprovable speculations about the future climate consequences of the 2030 target; (iii) there is no positive constitutional obligation on Ontario to prevent harms associated with climate change; and (iv) the Applicants have no standing to seek remedies for “future generations”.   Justice Brown rejected all arguments made by Ontario, finding that the 2030 target and related plan are reviewable by the courts for purposes of a Charter analysis.   Justice Brown further determined that many of the claims made by the Applicants, with respect to climate change, are capable of proof and that the Applicants should be provided the opportunity to adduce evidence to demonstrate the validity of their claims.   A brief overview of Justice Brown’s main findings follows: On the question of justiciability, Justice Brown differentiated this case from the recent Federal Court of Canada decision in La Rose v. Canada, which found that another youth-led challenge to federal inaction on climate change was not justiciable. In differentiating the two claims, Justice Brown noted that the Application challenged specific government action and legislation unlike the claim in La Rose v. Canada. Moreover, Justice Brown determined that the…