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Mathur v. Ontario group photo

Seven young Ontarians have burst through major barriers in the legal fight for a safer climate future. (Photo/Ecojustice)

Canadian Youth Launch a Rising Tide of Constitutional Climate Suits. Expect more.

In the case of children and youth who lack the right to vote but will disproportionately bear the harmful consequences of the climate crisis in the future, turning to courts is in fact their only hope.

Last month, seven Ontario youths made history when they held Premier Doug Ford’s government to account for its reckless climate policy in a court of law.

The case of Mathur v. Ontario — the first climate rights lawsuit to have its day in court in Canada — alleges that the government’s rollback of its greenhouse gas emissions target is unscientific, unsustainable and unconstitutional. Legal experts from across the country have long argued that Canadian governments’ woefully inadequate record on climate change is not only unacceptable, but may also be illegal in some circumstances. In particular, when government conduct like Ford’s greenhouse gas target falls far short of what the science requires, it also falls foul of the Canadian Charter of Rights and Freedoms.

Representing youth and future generations, the applicants in Mathur v. Ontario argue that by failing to even attempt to achieve the emissions cuts that experts say are necessary to avoid climate catastrophe, the government has violated their constitutionally protected rights to life and security of the person under the Charter. They also argue that the government has violated their equality rights, since climate change will disproportionately harm children and youth, who are more vulnerable to the existing health effects of climate change and will live more of their lives in an era of climate crisis.

In the reams of documents and hours of oral argument presented by Ontario’s lawyers — paid by taxpayer dollars — the government never once tried to justify the validity of its target on the basis of climate science. Instead, they tried to get the court to punt the issue. First, Ontario argued that the target was only a “communications product” and not a law. The position reveals a staggering level of hypocrisy, considering that Ontario’s recent opposition to the federal carbon price relied heavily on an argument that the province was already handling climate change through its robust emissions reduction target. Second, Ontario’s legal team argued that climate change is too political to be dealt with by a court of law. The problem with this argument is that it totally ignores the constitutional role of courts in our legal system.

Any first-year law student knows that where a government policy violates a person or group’s Charter rights, the courts not only can but must intervene. Court supervision of government conduct — no matter how “political” — is a cornerstone of constitutional democracy. The raison d’être of the Charter is to prevent government intrusions on human rights. This is why Canadian courts have intervened in areas as controversial as medical assistance in dying, access to safe injection sites and (de)criminalization of the sex trade. Any of these issues could, in theory, have been resolved by voters, but at an unacceptable cost to those whose lives and quality of life were threatened by the government policies at issue. In the case of children and youth who lack the right to vote but will disproportionately bear the harmful consequences of the climate crisis in the future, turning to courts is in fact their only hope.

Before 1982, there were cases in which Canadians had no legal recourse when their human rights were violated by government actions. Since the Charter came into force, however, we are no longer at the mercy of politics to resolve issues that implicate our most fundamental human rights. As Canadians experience increasingly frequent climate-related disasters (heat domes, wildfires, flooding and hurricanes), it has become clear that climate change constitutes an unprecedented threat to the enjoyment of human rights in this country. And since our human rights are enshrined in the Charter and supervised by an independent judiciary, it seems only reasonable to seek constitutional recourse when governments contribute to dangerous climate change through unsustainable and unscientific laws and policies. Mathur v. Ontario is just one of a rising tide of constitutional climate suits in Canada. Expect more to come.

© 2020
Lynda Collins

Lynda Collins

Lynda Collins is a Professor with the Center for Environmental Law & Global Sustainability and Director of the First Year Program at uOttawa Law.

Nathalie Chalifour

Nathalie Chalifour

Nathalie Chalifour is an Associate Professor at the Faculty of Law and Co-Director of the Center for Environmental Law and Global Sustainability at the University of Ottawa. Her research focuses on the intersection between environmental law, the economy, and social justice.

Anne Levesque

Anne Levesque

Anne Levesque is an Assistant Professor and Human Rights Lawyer. Anne is also the co-director of the Law Practice Program at the Faculty of Law of the University of Ottawa.

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