Detrimental deference

Within the span of weeks, Canada's federal and Ontario courts released opposing decisions on claims launched by youth climate litigants, highlighting the unsettled role of the judiciary in protecting the environmental rights of youth and future generations.

The differing outcomes stem mainly from how the plaintiffs framed their claims. It should be a red flag that form and not substance may dictate the outcome of Charter challenges that ask whether government conduct on climate change unjustifiably infringes the constitutionally-protected rights of young people. 

On October 27, Federal Court judge Michael Manson dealt the youth plaintiffs in La Rose et al v Her Majesty the Queen a major blow when he granted the federal government's motion to strike the claim before it proceeded to trial. He threw out the case before the litigants were even able to present evidence before the court. The 15 youth behind the challenge took aim at the Canadian government's overall conduct with respect to greenhouse gas (GHG) emissions, including the failure of elected officials to meet targets the claimants argued were insufficient in the first place. In Judge Manson's view, the tactic of challenging a swath of government conduct, rather than specific government action, was fatal, given its "undue breath and diffuse nature." Therefore, he held the claim fell outside the judiciary and into the elected sphere of policy. 

In contrast, on November 12, Ontario judge Carole Brown gave youth plaintiffs in Mathur et al v Her Majesty the Queen the green light to proceed to trial on their Charter claim against the provincial government. She was satisfied the challenge was justiciable in large part because the impugned target was published under a specific law – the Cap and Trade Cancellation Act (CTCA). Judge Brown relied upon precedents holding that courts must consider allegations that government conduct violates the Charter. 

Taken together, the decisions offer a partial victory for climate litigants. But they highlight a pernicious dynamic: the difference between the two rulings appears to be based on how the claims are framed, rather than the merits of the constitutional issues at play.  

Both decisions are fundamentally about whether the governments' GHG emissions reduction targets (Canada, in La Rose and Ontario, in Mathur) infringe the constitutional rights of youth and future generations. The difference is that Canada's target cannot be traced to a specific piece of legislation, whereas Ontario's target can.  

The takeaway is that the way a case is packaged matters more than the actual impact of the government conduct in question. A broadly framed claim (arguably an efficient use of judicial resources) may escape Charter scrutiny regardless of the effects of that conduct on claimants' rights. This is an impoverished view of the individual rights Canada's Constitution was designed to protect. 

The Supreme Court of Canada has consistently rejected rigid, formalistic approaches to constitutional interpretation, opting instead for substantive, contextual analyses that yield more just outcomes. The La Rose ruling fails to heed this guidance in three ways.

First, it ignored the existence of clear standards against which to measure infringements from GHG emissions.

Because the La Rose plaintiffs challenged holistic government conduct that leads to unsafe levels of GHG emissions, the court saw their claim as a challenge to government policy. In his ruling, judge Manson characterized GHG emissions as akin to health care, housing and drug addiction – "important societal issues" that "attract a variety of social, political, scientific and moral reactions" and that leave "room for disagreement between reasonable people about how these issues should be addressed." He acknowledged that climate change is "serious, real and measurable," with wide-ranging harmful implications that particularly threaten Indigenous communities, and that Canada "should not be unaccountable in addressing climate change." But ultimately, he reasoned that the plaintiffs were asking the court to intervene in an arena reserved for elected officials, without guidance from a judicially manageable legal standard.  

We submit this finding is incorrect for two reasons. Courts have demonstrated that they can adjudicate Charter violations in social policy areas where constitutional rights are at play. For instance, Carter v Canada dealt with medically assisted dying, Canada v PHS Community Services with safe drug injection sites, Canada v Bedford with prostitution, Chaoulli v Québec with health care and Victoria v Adams with social housing.  It bears repeating that the judiciary's role is to determine whether government conduct unjustifiably infringes Charter rights, which can be done without weighing into the merits of specific policy choices.

Also, and more importantly, there is a judicially manageable legal standard against which to measure Canada's conduct on climate change. The Paris Agreement – which Canada ratified along with 188 countries– sets a scientifically driven, quantifiable temperature threshold beyond which lies catastrophic and largely irreversible impacts. Science allows us to precisely quantify and measure the level of GHG emissions reductions required to avoid crossing that threshold — something that Ontario Justice Brown acknowledged in Mathur. In other words, there is a precise legal standard against which to assess government conduct. 

The Dutch Supreme Court understood its judicial role perfectly when it held, in the landmark Urgenda decision, that the elected branch was legally required to meet a specific, science-based GHG reduction target it had agreed to at the international level. The judges simultaneously deferred to the executive branch to determine how best to meet that target.

The second problem with the La Rose decision is that it shields systemic rights infringements from Charter scrutiny. By insisting that youth climate litigants tie their challenge to a specific legal instrument, the Federal Court failed to acknowledge that a wholesale, systemic set of decisions can lead to (often the most egregious) climate rights infringements. Unless there is a jurisdiction-wide, legislated mandate for GHGs (as there was in Mathur in the CTCA), emission levels will de facto be dictated by a diffuse tapestry of government actions and inactions. 

Absent a legislated target that could be the subject of direct legal challenge, Justice Manson's reasoning essentially requires claimants to challenge individual decisions or subsets of decisions in a piecemeal fashion. Or they must wait for government to enact a target they believe to be inadequate. This approach risks pushing governments into a race to the bottom, incentivized to operate in a legislative vacuum. Elected officials should avoid prescribing any GHG reduction targets by statute to evade court challenges.

The form of conduct should not serve as an escape hatch through which governments can avoid Charter scrutiny. When there is a clear, ascertainable standard, the judiciary should assess the evidence and determine whether the standard is met, regardless of the shape the government's conduct takes.  

Finally, forcing plaintiffs back to the drawing board to reframe their case will only cause delays that exacerbate the infringement of their rights. Our window of opportunity to reduce GHG emissions to avoid crossing dangerous thresholds is rapidly closing. The Canadian government has repeatedly failed to meet its climate targets and is not on track to meet its 2030 Paris target. It is simply impractical and unjust for courts to require climate litigants to play "whack-a-mole" in defending their constitutional rights, forcing them to challenge each major project approval or GHG-related decision separately. This approach risks grave injustices given the systemic nature of climate change, the considerable amount of time and resources required to mount a single challenge and the irreversibility of many of the harms at stake. 

Further, it places youth climate litigants in a passive, disempowered position. They have no choice but to wait for governments to enact deficient legislation or take specific action (as they have in Ontario when Premier Ford cancelled the cap and trade program and repealed the province's previous targets) before they can defend their environmental Charter rights. This requirement compounds the powerlessness often experienced by a cohort with no right to vote.

Hope on the horizon

The Mathur decision is encouraging for youth climate litigants. But the precedent set in La Rose suggests youth can only be heard in jurisdictions that have a legislated climate plan or target, or if they target a narrower set of actions. While the La Rose plaintiffs will appeal, time is running out to avoid the catastrophic climate disruptions that will shape the planet and the lives of its inhabitants. 

Young people are rightfully determined to be heard by the judiciary. They will get their day in court in Ontario. Meanwhile, the rest of the country waits.