asper centre case

The State Is Not Immune: The Supreme Court Affirms that Crown Can be Held Liable in Damages for Unconstitutional Laws

Posted on by Tal Schreier

by Vlad Mirel, with Neil Abraham and Megan Stephens

In a 5-4 split, the Supreme Court of Canada in Canada (Attorney General) v. Power held that damages may be awarded to those affected by Charter-violating laws. Although the threshold that must be met to be awarded damages remains high, the Supreme Court has confirmed that the Crown does not have complete immunity from damages. Significantly, the Supreme Court’s view achieves a balance between important legislative privileges which weigh in favour of absolute immunity, and the Charter rights of all Canadians that favour no immunity.

Background

In 1996, Mr. Power was convicted of two indictable offenses and sentenced to eight months imprisonment. After serving his sentence, he received his x-ray technician diploma and became a medical radiation technician at a New Brunswick hospital. Over a decade later, Mr. Power’s employer received a tip about his criminal record and his employment was terminated. Mr. Power was subsequently unable to find new employment due to his record and decided to apply for a record suspension. Record suspensions enable those who have served their sentences and have demonstrated they are law abiding citizens to remove their criminal record from the Canadian Police Information Centre’s database and thus help them access employment.

While at the time of his conviction, Mr. Power could apply for a record suspension five years after his release, subsequent legislation made Mr. Power permanently ineligible for a record suspension. This legislation was soon declared unconstitutional by the courts. Mr. Power argued that he was owed damages under s. 24(1) of the Charter based on the breach of rights he suffered from the unconstitutional legislation.

Mackin Revisited

Much of this case was based upon revisiting the decision in Mackin v. New Brunswick (Minister of Finance), where the Supreme Court held that the Crown could be liable for damages if legislation was clearly unconstitutional, adopted in bad faith or an abuse of power. Canada sought to overturn Mackin in this appeal by arguing that it was entitled to absolute immunity in order to preserve its legislative privilege and protect the separation of powers. Parliamentary privilege plays an important role within Canadian politics, ensuring the legislature is able to execute its functions without fear of external review. Canada argued that if it were subject to damages, it would represent a loss of this privilege. Furthermore, Canada argued that the judiciary should not be able to demand the Crown pay damages as these two entities must be kept in isolation from each other based on the separation of powers.

Decision

The Asper Centre intervened in this appeal and its submissions can be traced throughout the majority’s decision. The Supreme Court agreed that adopting absolute immunity would ignore important constitutional principles of equal significance to legislative privilege. Instead, the Court approached the question by asking how s. 24(1) could be interpreted in a way that would reconcile these Canadian constitutional principles, including constitutionality and the rule of law, rather than allowing legislative privilege to trump Charter rights.

First, the Supreme Court held that forcing the Crown to pay damages for unconstitutional laws drafted by Parliament would not be a threat to parliamentary privilege. While legislative privilege ensures those creating legislation are free from external review, it does not extend the same protections to the state itself. Thus, as the damages would be levied upon the Crown rather than individuals, limited immunity would present no threat to this parliamentary privilege.

The Court also found that limiting the state’s immunity is consistent with the separation of powers, as each branch does not work in total isolation. Holding the legislature accountable for its misuse of power would not constitute judicial interference.

Having upheld the ruling in Mackin and reiterated the state’s limited immunity, the Court moved to clarify aspects of Mackin. In accordance with the Asper Centre’s own submissions, the majority first clarified that the “clearly wrong” (now termed “clearly unconstitutional”) threshold required for damages to be awarded is based on an objective standard. Thus, a claimant must demonstrate that it was clear at the time of the law’s enactment that the state would be violating Charter rights. By adding this objective standard, the Supreme Court has permitted plaintiffs to seek damages by arguing for the rights-violating effects of the respective law rather than requiring them to explicitly demonstrate any bad faith. However, a demonstration of Parliament’s bad faith would still provide an effective way of receiving damages.

Furthermore, the Supreme Court affirmed the three-part test established in Vancouver (City) v. Ward for determining whether damages ought to be awarded in the case of a Charter breach.  Now, the Power “clearly unconstitutional” threshold will be utilized to inform the third part of the Ward test, which asks whether the state has demonstrated that countervailing factors do not support damages being awarded. Thus, when investigating Charter damages, state immunity is considered within a wider three-part test rather than as a preliminary question.

Dissent in Part

Justices Jamal and Kasirer dissented in part. Although they agreed with the majority that a clearly unconstitutional law should lead to an award of damages, they disagreed that a demonstration of the Crown’s “bad faith” should achieve the same result. In Justice Jamal and Kasirer’s opinion, examining the intention of legislators in creating a law would represent the judiciary “second guessing” the legislature, and thus permit the judiciary to intrude upon legislative privilege. Thus, a Court deciding whether to award damages should only inquire if a law was clearly unconstitutional at the time of its creation and not if it was enacted in bad faith.

Dissent

In dissent, Justice Rowe and Côté argued that Canada should be allotted absolute immunity. Rowe and Côté expressed concerns that enabling courts to hold the Crown liable in damages effectively forces courts to adopt a supervisory role over the legislative process. Broadly speaking, both Justices agreed with Canada’s submissions, deciding that forcing the state to be held liable in damages for an unconstitutional law would stand in direct contradiction to legislative privilege. Furthermore, the separation of powers directly precludes the judiciary from scrutinizing the legislative process.

Looking Forward

The Supreme Court in Power has confirmed that state immunity is not absolute and has clarified the framework that future litigants will utilize when seeking damages for Charter breaches. Those who attack laws based on their unconstitutionality must orient their pleadings in a way that show “clear” rights violations which meet the “clearly unconstitutional” threshold. Proving that an impugned law has achieved this level of unconstitutionality will likely require utilizing precedent, which demonstrates the importance of employing language from existing authorities to prove the adverse effects of legislation.

Megan Stephens and Neil Abraham, the Asper Centre’s counsel in this intervention, commented that although the “clearly unconstitutional” threshold for damages has now been confirmed, it is unknown what form this threshold will truly take in practice. Instead, it is only through the resolution of future cases on this issue that the threshold will become clearly defined. Despite this uncertainty, Stephens and Abraham argue that the open-ended nature of “clearly unconstitutional” signifies that plaintiffs still have more than enough space to bring and argue their claims.

Stephens and Abraham also note that Power will be highly relevant for cases challenging laws passed through the notwithstanding clause. Parties to such cases should consider utilizing the invocation of the clause as proof that the legislature passed the law recklessly or in bad faith. Indeed, there are many cases in the lower courts that are currently challenging laws passed through s. 33, such as gender identity cases in Saskatchewan and New Brunswick, as well as religious symbols and language cases in Quebec.

Lastly, it remains to be seen whether Power will enable claimants to receive individual remedies under s. 24(1) even where the law cannot be struck down due to s. 33. In much of this future litigation, the language utilized in Power that balanced Charter rights with legislative principles will likely be used to evaluate how constitutional supremacy can be balanced with the legislative use of s. 33.

Vlad Mirel, U of T Law JD Candidate and Asper Centre Summer RA, with Neil Abraham and Megan Stephens, pro-bono counsel acting for the Asper Centre in the Power intervention

Asper Centre takes part in the Vote16 Summit in Ottawa

Posted on by Tal Schreier

By Vlad Mirel and Kate Shackleton

On May 29, 2024, academics, parliamentarians, and youth activists from across the globe gathered in Ottawa for Canada’s first-ever national Vote16 Summit. The event was organized by Vote16 Canada – a national campaign dedicated to lowering the voting age to 16 – and hosted by Senator Marilou McPhedran. 

To kick off the event, numerous experts presented evidence in favour of lowering the voting age to 16. Panelist Samantha Reusch (Executive Director, Apathy is Boring) stressed that the declining civic engagement Canada is experiencing presents a direct threat to the efficacy of its democracy. She emphasized that although youth feel alienated from the democratic process, they remain interested in politics. Sabreena Delhon illustrated how the pandemic negatively impacted civic engagement by removing students from schools and thus reducing their interaction with civic education. Lastly, Dr. Jan Eichhorn (Senior Lecturer/Research Director, University of Edinburgh) spoke about Scotland’s experience with lowering the voting age to 16, highlighting that Scottish youth became more politically-engaged than their UK peers who were not enfranchised. 

In the subsequent Q&A session, the panelists addressed audience concerns about social media and misinformation along with the partisan dimension of the voting age debate. The panelists expressed that many of the concerns that social media may unduly influence youth voting are already true for older generations. Furthermore, Professor Eichhorn outlined the non-partisan nature of the lowered voting age in Germany. 

Dr. Jan Eichhorn, Samantha Reusch, and Sabreena Delhon answer audience questions

Next up was the “Vote16 in Court” panel, featuring Sage Garrett and Caeden Tipler from Make It 16 New Zealand, Jacob Colatosti and Catherine He, who are two of the youth litigants involved in the ongoing voting age Charter challenge, and the Asper Centre’s Executive Director Cheryl Milne. 

Garrett and Tipler shared how Make It 16 New Zealand challenged the voting age based on the New Zealand Bill of Rights, which prohibits age discrimination against persons 16 years of age and older. They took their case all the way up to the Supreme Court, where the court held that the voting age was indeed inconsistent with the Bill of Rights. Although New Zealand’s parliamentary supremacy means that the government is not bound by the Court’s decision, Garrett and Tipler underscored that the case played a major role in raising awareness about their campaign. 

Next, Milne provided an update on the Canadian Charter challenge (led by the Asper Centre and Justice for Children and Youth). She explained that the government’s evidence has been reviewed and preparations for cross-examinations are underway. Colatosti and He also described how they got involved in the case and why youth voting is important to them. Colatosti was motivated to join the case when he was 16 due to his dissatisfaction with the rate of reform within Canadian politics. Meanwhile, He – who joined the litigation at 15 – voiced her support for enfranchising youth based on their position as “citizens, driving the future of change.”  

All five panelists then answered questions from the audience and noted some of the frequent questions they face. The panelists pointed out that Canada’s political cycle often results in the minimum voting age differing from when people actually get their first voting opportunity, with 19-year-old Colatosti still waiting to cast his first vote. In response to concerns that youth are too extreme or radical to vote, Garrrett stressed that no one should ever be disenfranchised based on their political opinions. Colatosti and He emphasized that parental influence is also not a persuasive counterargument, observing that youth are equally capable of influencing their parents. 

Panelists Caeden Tipler, Sage Garrett, Catherine He, Jacob Colatosti, and Cheryl Milne discuss the court challenges in New Zealand and Canada

The final panel – “Building Our Movement” – was composed of youth activists from across Canada (from various Vote16 chapters, the Fédération de la jeunesse franco-ontarienne, and the Francophone Youth Council) and international advocates like Bethania Lima from Brazil and Dr. Andrew Wilkes, who is the Chief Policy & Advocacy Officer of Generation Citizen in New York. The speakers encouraged those interested in advocating for legislative change to focus on drawing attention to their campaign and to reach out to local politicians. 

Bethania Lima (at far left) discusses how Brazil increased youth voter registration for the 2022 election

The Summit concluded with a symposium of more than 25 speakers who gave concise presentations on why they believed youth should be able to vote. Elder Verna McGregor welcomed the attendees. She analogized her dreamcatcher’s interwoven net to society itself, emphasizing how we are all interconnected and thus every voice must be heard in elections.  Several parliamentarians then expressed their support for lowering the voting age, such as Senators Robert Black, Kim Pate and Bernadette Clement as well as MPs Elizabeth May and Taylor Bachrach. Notably, Bachrach credited the youth litigants in the Charter challenge with inspiring the Private Member’s Bill to lower the voting age that he brought forward in 2021. MP Yves Perron of the Bloc-Quebecois outlined the important habit-forming impact voting at 16 would have. He stressed that youth voting is important not just for young people, but for the overall health of our democracy. Katie Yu and Amelia Penney-Crocker spoke on behalf of the youth litigants, with Yu commenting that lowering the voting age is about “treating young people as people.” 

MP Bachrach with the youth litigants (from left to right: Amelia Penney-Crocker, Katie Yu, Jacob Colatosti, and Catherine He)

Katie Yu and Amelia Penney-Crocker speak during the symposium portion of the Summit

Overall, the Vote16 Summit was an informative and inspiring event that promises to make important contributions to the movement for extending the vote to young people. By bringing together this diverse group of people with differing lived experiences and expertise, the Vote16 Summit provided its attendees with an incredibly enriching conversation surrounding youth voting. In addition to the ongoing Charter challenge, legislative change may be on the horizon thanks to Bill S-201 (introduced by Senator McPhedran). The bill is expected to go to Second Reading in the Senate in the near future, and to ensure the bill passes, interested individuals and organizations are encouraged to contact their provincial senators to express their support. A list of senators for each province as well as a statement in support of S-201 can be found on the Vote16 website. 

Emily Chan (Lawyer, Justice for Children and Youth), Mary Birdsell (Executive Director, Justice for Children and Youth), Katie Yu, Amelia Penney-Crocker, Jacob Colatosti, Catherine He (Youth Litigants), and Cheryl Milne (Executive Director, Asper Centre) 

Vlad Mirel and Kate Shackleton are rising 2L students at the Faculty of Law and are the current Summer Research Assistants at the Asper Centre.

Asper Centre Intervenes in Climate Change Case at ONCA

Posted on by Tal Schreier

by Chelsea Gordon, Daniel Kiesman and Sang Park

On January 15, 2024, the Asper Centre intervened before the Ontario Court of Appeal in Mathur v Ontario. The Asper Centre’s Constitutional Litigator in Residence Ewa Krajewska acted as counsel for the Asper Centre in this intervention. As students in the Asper Centre Clinic course this past term, we had the opportunity to contribute to the intervention by conducting research and drafting versions of the factum as part of our clinic coursework.

Mathur is a significant case because it is the first time that substantive legal issues of a constitutional challenge to insufficient government action to address climate change has been before an appellate court in Canada. Furthermore, this case is also one of the first s. 15(1) Charter cases to reach an appellate court since the Supreme Court modified its approach to s. 15(1) in R v Sharma.[1]

Background

The appellants are a group of seven young Ontarians. The appellants challenge a 2018 decision by the Government of Ontario to lower the province’s greenhouse gas emissions target to 30% below 2005 levels by 2030. Ontario set this target despite scientific research showing that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. As a result, the appellants argue that this emissions target violates s. 7 of the Charter by allowing a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk. The appellants also argue that the emissions target violates s. 15(1) of the Charter because young people and future generations will disproportionately bear the burdens and face the adverse effects of inadequate climate change policy.

The Superior Court of Ontario held that the appellants’ challenge was justiciable but dismissed the appellants’ Charter claims.[2] The Asper Centre also intervened at the Superior Court, read the factum here.

With regard to s. 7 the application judge appeared open to the idea that climate change could be the kind of issue area where a positive s. 7 obligation on government could arise and assumed without deciding that a positive obligation arose here.[3] However, the application judge held that the emissions target did not infringe any principles of fundamental justice and therefore did not infringe s. 7.[4] Regarding s. 15(1) the application judge, applying Sharma, held that the claim must fail at the first step of the test as causation cannot be established. The application judge held that causation could not be established because the “disproportionate impact is caused by climate change and not the [emissions] target.”[5]

The Asper Centre’s Intervention at the Court of Appeal

The Asper Centre’s intervention at the Court of Appeal is focused on two issues. First, that the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter.

Read the Asper Centre’s factum here.

In its submissions relating to causation in the s. 15(1) analysis, the Asper Centre traces the history of equality jurisprudence to underscore that substantive equality drives the s. 15(1) analysis and that the application judge erred by abandoning a substantive approach and adopting a formalistic analysis of causation. The Asper Centre notes that from the start, in the first s. 15(1) case Andrews v Law Society of British Columbia, the Supreme Court recognized that a seemingly neutral law may create an unequal impact on a particular group and as a result the s. 15(1) analysis must focus on the impact of the law on a particular group.[6] This approach has been repeatedly affirmed in subsequent Supreme Court decisions. Most recently the importance of substantive equality was reaffirmed in Sharma where the Supreme Court stated it is an “animating norm” of s. 15(1).

Furthermore, the intervention seeks to emphasize that the proper approach to causation must be flexible and contextual. Such an approach does not require that an impugned law be the only cause of an adverse impact. Rather, to establish causation a claimant need only show that a law is a cause. To support this approach the Asper Centre highlights cases such as Fraser v Canada (Attorney General) where an RCMP job-sharing program, which was not in and of itself the root cause of wage inequality, was found to infringe s. 15(1) because it furthered the economic disadvantages women face in society.[7]

Despite these precedents, the application judge adopted a formal and rigid approach to causation, holding that the emissions target did not infringe s. 15(1) because the harms to youth are caused by climate change. This approach harkens back to the rejected approach to equality taken under the Canadian Bill of Rights wherein a provision which restricted access to employment insurance to pregnant women was allowed to stand because the discriminatory impact on pregnant women was not caused by the legislation, but by the fact that the women were pregnant. This approach also departs from the decades of precedent which instruct a flexible and contextual approach that centres substantive equality at the heart of s. 15(1).

Should the Court of Appeal find a Charter infringement the Asper Centre’s submission encourages the Court to be creative and utilize its remedial discretion under s. 24(1) of the Charter to forge an appropriate and just remedy. Declaratory relief will be insufficient in this case as the impacts of climate change, stemming from government inaction present complex and novel issues for the legal system. Faced with novel issues the Supreme Court, in cases such as Ontario v G[8] and Doucet-Boudreau v Nova Scotia (Minister of Education),[9] has crafted unique remedies under s. 24(1). Furthermore, as the Asper Centre notes in its factum, courts in other jurisdictions, such as the German Constitutional Court[10] and the Supreme Court of the Netherlands,[11] which have confronted the issue of inadequate government climate policies have crafted creative remedies aimed at addressing the complexities of climate change.

Chelsea Gordon, Daniel Kiesman and Sang Park are JD Candidates at the Faculty of Law and were Asper Centre clinic students in Fall 2023.

[1] R v Sharma, 2022 SCC 39.

[2] Mathur v Ontario, 2023 ONSC 2316

[3] Mathur v Ontario, 2023 ONSC 2316 at para 82.

[4] Mathur v Ontario, 2023 ONSC 2316 at para 142.

[5] Mathur v Ontario, 2023 ONSC 2316 at para 178.

[6] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

[7] Fraser v Canada (Attorney General), 2020 SCC 28 at paras 92-107, 113.

[8] Ontario (Attorney General) v G, 2020 SCC 38.

[9] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

[10] 1 BvR 2656/18 (2021).

[11] C-565/19 P, C/09/456689 / HA ZA 13-1396.

Asper Centre intervenes in Mathur et al v His Majesty the King in Right of Ontario

Posted on by Tal Schreier

On January 15, 2024, the Asper Centre will be intervening in the case of Mathur et al v His Majesty the King in Right of Ontario at the Ontario Court of Appeal, generously represented by our counsel and recent Constitutional Litigator in Residence Ewa Krajewska of Henein Hutchison Robitaille LLP.

This case, which commenced in 2019, involves a Charter challenge to the Ontario government’s legislative response to climate change, more specifically its adoption of weaker greenhouse gas emissions reduction targets with the passing of the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13. It is the first Charter challenge in Ontario against government actions taken related to climate change to reach a full hearing on its merits.

The Appellants are a group of 7 youth climate justice activists and their guardians, who assert that the dangers and existential risks posed by climate change violate the Section 7 and 15 Charter rights of Ontario youth and future generations.

Although the court at first instance found that the issues in the application were justiciable, it decided that the appellants had not established any violation of Charter sections 7 or 15.  

The Asper Centre is intervening on two issues in this appeal: the proper interpretation and application of the causation requirement in s. 15(1) of the Charter, and how the remedies available under s. 24(1) of the Charter can meaningfully vindicate the rights and freedoms of vulnerable claimant groups.

You can read our factum at the ONCA appeal here. The Asper Centre previously intervened in this case at the Ontario Superior Court of Justice. You can find our factum in that court here.

In Mathur v Ontario Court Rejects Charter Challenge to Ontario’s Emissions Target  

Posted on by Tal Schreier

by Daniel Kiesman

In Mathur v Ontario[1] the Ontario Superior Court of Justice rejected the constitutional challenge to the greenhouse gas emissions target set by Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

Background

In 2018, the Government of Ontario through s. 3(1) of the CTCA set an emissions reduction target at 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030.  The Applicants, a group of young Ontarians, argued the target set by Ontario was too low, failing to adequately address climate change and leading to adverse future consequences for young people and for future generations.

The Applicants advanced two Charter arguments. First, by failing set the target high enough Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the Applicants argued the CTCA violates s. 15 of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change. In so doing, the Applicants argued the CTCA perpetuated a disadvantage since young people and future generations lack political decision making power and their interests are often ignored.

Justiciability

The judge found the challenges regarding the emissions target set by Ontario to be justiciable.[3] This is notable because the Federal Court found a past challenge to government climate action to be non-justiciable. In La Rose v Canada, the Federal Court held that a constitutional challenge of the Federal Government’s greenhouse gas emissions target was non-justiciable because the challenge was not focused on specific government action or legislation but rather focused on the Federal Government’s overarching policy positions regarding climate change.[4] The La Rose case was similarly brought by a group of young people concerned about the impacts of climate change and the decision in that case is currently under appeal to the Federal Court of Appeal. Nevertheless, the ruling in Mathur signifies that Charter challenges to government climate action can be justiciable when they are focused on a specific government action, which in this case was the target set under s. 3(1) of the CTCA.

Section 7

Under the s. 7 analysis the judge characterised the Applicants’ complaint as being that the emission target set by Ontario was not high enough. Therefore, the judged interpreted the Applicants’ s. 7 claim as a positive right claim, suggesting the Applicants were seeking a declaration that Ontario has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[5] While noting in Gosselin v Quebec (Attorney General) the Supreme Court rejected the idea s. 7 creates a general positive obligation on governments to ensure citizens have the benefits of life, liberty and security of the person, the judge highlighted that Gosselin left open the possibility of positive obligations under s. 7 in certain unique circumstances.[6] The judge found that, “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under s. 7 of the Charter.”[7] The Court appeared open to the idea that the impacts of climate change could be special enough to for a court to impose a positive obligation but noted that if such a positive obligation were to be found there would likely be a different s. 7 analytical framework used in such cases. Ultimately, the judge assumed without deciding that a positive obligation under s. 7 arose in this case but went on to reject the s. 7 claim on the grounds that Ontario, in setting the emissions target, did not violate any principles of fundamental justice.[8]

While the result of the s. 7 analysis in this case may be disappointing to those concerned about the effects of climate change and government inaction, the Court’s analysis in Mathur presents a potentially important pathway forward for climate change focused constitutional litigation. The decision shows that courts may be open to imposing positive obligations on governments under s. 7. The decision is also notable for recognizing the unique and pressing challenges climate change posses to Canadian society such that climate change can be considered a special circumstance as articulated in Gosselin which may give rise to a positive obligation under s. 7. Furthermore, this decision adds to a growing chorus of courts across Canada which have expressed openness to the possibility that there may be a positive obligation on governments to adequately combat climate change. In La Rose the Federal Court did not foreclose the possibility that such positive obligations could exist.[9] In Kreishan v Canada (Citizenship and Immigration) the Federal Court of Appeal cautioned that s. 7 should not remain simply “frozen in time”[10] and expressly listed climate rights as a domain in which positive obligations under s. 7 could arise.[11] These decisions show that future litigation may be able to persuade a court that there are positive obligations on governments, under s. 7, to adequately combat climate change.

Section 15

With respect to the Applicants’ s. 15 claim, the Court applied the s. 15 test following the guidance given recently by the Supreme Court in R v Sharma.[12] At the first step of the test the judge accepted that young people are disproportionately affected by climate change.[13] However, the judged stressed that any disproportionate impact is caused by climate change itself and not by emissions targets set by Ontario through s. 3(1) of the CTCA.[14] As such, the Applicants’ claim failed to show Ontario’s actions created or contributed to the disproportionate affects of climate change faced by young people. While the emissions target is not high enough to thwart the impacts of climate change, the emissions target itself does not cause or contribute to the adverse effects of climate change that young people will face. Given the requirements set out in Sharma for claimants to show causation at the first stage of the s. 15 analysis, the judge concluded the s. 15 must fail because the requisite causation could not be established in this case.[15]

The judge, echoing the Supreme Court in Sharma, also noted there is no positive obligation of governments to address inequalities through remedial legislation.[16] The emission target is part of a remedial scheme aimed at addressing climate change. The Supreme Court stated that when a government chooses to address inequality it can legislate incrementally and leave gaps between members of protected groups who may be affected by such legislation and members of non-protected groups unaffected by such legislation.[17] The emissions target in question were viewed by the Court as incremental and remedial legislation Ontario chose to enact to address the issue of climate change. Therefore, any gap the CTCA creates does not in itself infringe s. 15.[18]

The Applicants also advanced a s. 15 argument claiming that since the impacts of climate change will only get worse over time, young people and future generations will face the brunt of impacts of climate change since they will live longer into the future. The judge also rejected this argument. The Court again noted that a claim relating to the effects of climate change on future generations fails to meet the causal burden at the first step of the s. 15. The more impactful future effects of climate change are not caused by Ontario’s emissions target but caused by climate change.[19] Furthermore, the judge appeared skeptical that the Applicants could even advance a s. 15 claim on behalf of future generations. Since everyone who lives into the future will be affected by climate change, this is not a distinction based on age because people of all ages will face the impacts of climate change in the future. Therefore, the judge held the Applicant’s claim is based solely on a temporal distinction and cannot succeed because such a distinction is not an enumerated or analogous ground.[20] Even if future generations could be considered to fall under the enumerated ground of age, or recognized as an analogous ground itself, the judge held that the claim would still fail. Citing Sharma, the judge noted that the disproportionate effects felt by future generations, would be a “gap” which already existed and was left unaffected by emissions target set by Ontario and therefore would not infringe s. 15.[21]

Mathur illustrates the impact of the decision in Sharma on s. 15 claims. The evidentiary burden on claimants to show a government action “creates or contributes to a disproportionate impact,”[22] at the first stage s. 15 test and the Supreme Court’s assertion that it does not infringe s. 15 to leave gaps between different groups so long as government action did not cause those gaps are important developments which drive the judge’s s. 15 analysis in this case.[23] This guidance in Sharma may prove to be difficult hurdles to climb for litigants bringing s. 15 challenges to government climate actions. Governments do not create or cause climate change. While governmental inaction will not abate the adverse consequences of climate change, it may prove difficult to show inadequate government action independently cause the impacts of climate change to worsen. Furthermore, as the judge accepted, young people already bear the brunt of the impacts of climate change. However, the gap between young people and other groups in society in relation to the adverse effects of climate change is again created by climate change. Government actions which will fail to remedy the issue of climate change will simply leave these gaps unaffected and therefore, per Sharma would not infringing s. 15.

Looking Forward

Mathur was the first case to substantively tackle a constitutional challenge to a government climate change policy and there are important takeaways to consider moving forward. First, constitutional challenges to government climate actions need to be aimed at specific government actions or legislation in order to be justiciable. Simply pointing to a broad constellation of government policies or positions on climate change will likely be viewed by courts as non-justiciable. Second, courts appear to be open to entertain arguments that climate is a special domain in which positive obligations on governments could potentially arise under s. 7. Given the right case with the right facts this could prove to be an exciting area for significant development of the law and advance climate activists’ cause. Third, the decision in Mathur illustrates that, given the majority decision in Sharma, s. 15 challenges to government climate actions will likely prove difficult to successfully make out. Overall, while the result in Mathur may be discouraging for individuals concerned about climate change, the decision shows there remain potentially viable avenues for future successful constitutional challenges to government climate actions.

Daniel Kiesman is a 1L JD candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant

[1] Mathur v Ontario, 2023 ONSC 2316 [Mathur].

[2] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 1 at para 106.

[4] La Rose v Canada, 2020 FC 1008 at paras 40—41 [La Rose].

[5] Mathur, supra note 1 at paras 122, 124, 132.

[6] Ibid at paras 125, 137 citing Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 81—83.

[7] Ibid at para 138.

[8] Ibid at paras 142.

[9] La Rose, supra note 4 at paras 69—72.

[10] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.

[11] Ibid.

[12] R v Sharma, 2022 SCC 39 [Sharma].

[13] Mathur, supra note 1 at para 178.

[14] Mathur, supra note 1 at para 178.

[15] Ibid citing Sharma, supra note 12 at para 42.

[16] Mathur, supra note 1 at para 178 citing Sharma, supra note 12 at paras 40, 63.

[17] Sharma, supra note 12 at paras 40, 63—64.

[18] Mathur, supra note 1 at para 178.

[19] Ibid at para 179.

[20] Ibid at para 180.

[21] Ibid at para 182.

[22] Sharma, supra note 12 at para 42.

[23] Ibid at paras 40, 42; Mathur, supra note 1 at para 178.