R v Chouhan: The Constitutionality of Abolishing Peremptory Challenges

by Annie Chan

The Asper Centre recently intervened in R v Chouhan, a case before the Supreme Court of Canada (SCC) whose outcome has fundamental implications on the process of jury selection in criminal trials.

Background

For 150 years, two types of challenges were permitted in jury selection in a criminal trial: (1) peremptory challenges, where a juror can be dismissed without explanation, and (2) challenges for cause, which require specific grounds. Section 634 of the Criminal Code allowed the Crown and the accused a fixed number of peremptory challenges each depending on the nature and seriousness of the offence [1]. In September 2019, Parliament enacted Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, which introduced three amendments to the jury selection process [2]. The first amendment expanded s. 633 of the Criminal Code, allowing judges to stand by jurors for the purpose of “maintaining public confidence in the administration of justice”. The second amendment repealed s. 634 of the Criminal Code, thereby abolishing peremptory challenges. Finally, the third appointed the presiding judge as the adjudicator of truth for challenges for cause in lieu of lay triers.

The bill came into force on September 19, 2019. On that same day, jury selection for the appellant, Mr. Chouhan, was scheduled to begin. Mr. Chouhan, who was at that time charged with first degree murder, challenged the constitutional validity of the second and third Bill C-75 amendments, arguing that they infringed upon his rights as an accused under ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms [3][4].

Procedural History

The balance of Mr. Chouhan’s argument hinged on the abolition of peremptory challenges as infringing on his ss. 11(d) right to a fair hearing by an impartial tribunal. In upholding the constitutionality of the amendment, the trial judge emphasized the strong presumption of jury impartiality and the numerous safeguards in place to ensure this, including the availability of unlimited challenges for cause based on a reasonable prospect of partiality [5]. Mr. Chouhan appealed, arguing that in cases where the accused is racialized, the assumption of jury impartiality is rebutted, giving rise to the need for peremptory challenges [6]. In upholding the trial judge’s ruling, the Ontario Court of Appeal described the use of peremptory challenges in weeding out biased jurors as inherently paradoxical, as the exercise of such challenges is often purely subjective and rooted in stereotypes [7]. Leave to appeal was granted by the Supreme Court and oral arguments were heard on October 7, 2020.

Supreme Court of Canada Proceedings

At the heart of the proceedings was whether peremptory challenges actually advance or hinder the selection of fair and impartial juries, particularly when the accused belongs to a racialized community. In addition to Mr. Chouhan and the Crown, numerous interveners, including several representing racialized communities, submitted arguments falling on both sides of this issue. Counsel for Mr. Chouhan argued that peremptory challenges mitigate the effects of racial prejudice on jury selection by giving the accused at least some minimal control and confidence in the impartiality of the jurors and the fairness of the trial process. This position was supported by oral arguments from Joshua Sealy-Harrington on behalf of the BC Civil Liberties Association who argued that “implicit bias compromises the impartiality of trial juries and absent peremptory challenges, there is no safeguard against that implicit bias in the entirety of the jury selection process.”

In contrast, Aboriginal Legal Services intervened on the basis that peremptory challenges perpetuate discrimination against Indigenous persons in the criminal justice system. In fact, the legislature’s intent in eliminating peremptory challenges was to address concerns surrounding their use in excluding Indigenous people from juries. This issue was exemplified in the 2018 case of R v Stanley where an all-white jury acquitted Gerald Stanley, a white Saskatchewan farm-owner for both manslaughter and second-degree murder after he shot and killed a young Indigenous man named Colten Boushie. During jury selection, peremptory challenges were used to exclude five visibly Indigenous persons from the jury.

The Asper Centre intervened with the position that the abolition of peremptory challenges did not infringe on the Charter. Our factum (as can be found here) emphasized the inherent subjectivity of peremptory challenges which are often based on racial prejudice or stereotypes, thus inviting abuse via discriminatory use. The Asper Centre was represented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach. In oral arguments, Professor Roach noted that peremptory challenges are often based on “guess-work and gut instincts”. Thus, “deputizing the accused to use a limited number of peremptory challenges to ensure representativeness and impartiality is neither reliable nor transparent”. He noted that the problems with implicit bias would be more effectively dealt with through a robust challenge for cause procedure and a more diverse jury roll, as was argued in R v Kokopenace.

Ruling from the bench

The Supreme Court of Canada issued a ruling from the bench on the same day as the oral arguments were heard. Their ruling upheld the constitutionality of the abolition of peremptory challenges with written reasons to follow. This unexpectedly expeditious judgment may have been an attempt to mitigate the delays in criminal jury trials stayed pending this ruling as well as to alleviate the uncertainty surrounding the validity of convictions which were decided subsequent to the enactment of Bill C-75 but prior to this appeal.

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

[1] Criminal Code, RSC 1985, c C-46. s 634.

[2] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2019, c 25 ss 269-273.

[3] R v Chouhan, 2020 ONCA 40 at para 17 [Chouhan] [4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.

[5] Chouhan at para 33

[6] ibid at para 37

[7] ibid at para 87

 

 

Supreme Court of Newfoundland and Labrador dismisses Constitutional Challenge to Travel Restriction

by Ainslie Pierrynowski

Does a provincial government have the authority to restrict interprovincial travel? Can limitations on mobility rights be justified in the name of public health? These timely issues were at the heart of Taylor v Newfoundland and Labrador,[1] a September 17, 2020 decision from the Supreme Court of Newfoundland and Labrador.

Background

On July 1, 2019, the Public Health Protection and Promotion Act, or the PHPPA, came into force in Newfoundland and Labrador.[2] When the Minister declares a public health emergency under PHPPA, section 28(1)(h) of the PHPPA enables the Chief Medical Officer of Health (CMOH) to make orders restricting travel to the province.[3]

In light of the COVID-19 pandemic, the CMOH issued such an order, effective May 4, 2020. This order limited entry to Newfoundland and Labrador residents, asymptomatic workers, and people with extenuating circumstances. On May 5, 2020, the CMOH made another order, which expanded the circumstances where a person would be exempt from the travel restriction.

When Kimberly Taylor’s mother passed away on May 5, 2020 at her home in Newfoundland and Labrador, Taylor sought an exemption from the travel restriction to attend her mother’s funeral. Taylor’s request was denied. Consequently, Taylor challenged section 28(1)(h) of the PHPPA. Taylor argued that this provision was beyond the legislative competence of the provincial legislature. In the alternative, Taylor contended that section 28(1)(h) infringed right to mobility and right to liberty pursuant to sections 6 and 7 of the Charter, respectively.

Is Section 28(1)(h) Beyond the Province’s Jurisdiction?

Justice Donald H. Burrage held that section 28(1)(h) fell within the province’s constitutional jurisdiction over matters of a local and private nature. At its core, the provision aimed at protecting and promoting the health of Newfoundland and Labrador’s population. Any impact on federal spheres of power, such as interprovincial undertakings, was merely incidental.

Furthermore, Justice Barrage noted, “[i]n the public health response to COVID-19 there is plenty of room for both levels of government…an effective public health response demands the cooperative participation of each [emphasis in the original].”[4]

Does Section 28(1)(h) infringe the Charter?

Justice Burrage determined that section 28(1)(h) did not engage Taylor’s right to liberty. A finding that Taylor’s right to liberty was engaged because of the travel restriction would effectively make section 6 mobility rights synonymous with the section 7 right to liberty. This conclusion would produce incoherence in the Charter, since section 7 applies to anyone “physically present in Canada and by virtue of such presence amenable to Canadian Law”[5] and is subject to the principles of fundamental justice, whereas section 6(1) only applies to Canadian citizens[6] and is subject to section 1 of the Charter. Alternatively, Taylor’s decision to attend her mother’s funeral does not amount to a “fundamental personal choice” and therefore does not attract Charter protection.

On the other hand, Justice Burrage concluded Taylor’s mobility rights had been infringed. Justice Burrage found that the right to remain in Canada under section 6(1) of the Charter included the right to move within Canada.

In this case, however, the violation of section 6(1) could be justified under section 1 of the Charter. According to Justice Burrage, the travel restriction related to a pressing and substantial objective: namely, protecting the province’s population from illness and death due to imported COVID-19 cases.

In terms of whether the travel restriction was rationally connected to this purpose, mathematical modelling presented in evidence showed that the travel restriction was an effective means of containing COVID-19. The model indicated that if non-resident travel to the province resumed at typical levels, the number of COVID-19 infections would rise to twenty times that of a scenario where the travel restriction remained in place and 1000 exempt non-residents entered the province every week.

As for the requirement that the impugned legislation must impair the protected right no more than necessary to achieve the desired objective, Justice Barrage found that limiting interprovincial travel was integral to containing COVID-19 in Newfoundland and Labrador. Overall, Justice Barrage concluded that the travel restriction’s benefit to the public outweighed its harms.

“While restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor,” Justice Burrage wrote, “the collective benefit to the population as a whole must prevail.”[7]

Closing Thoughts

Ultimately, Taylor’s challenge to section 28(1)(h) was dismissed. Justice Barage held that the province’s  travel restrictions were consistent with the Constitution. The implications of this decision, however, stretch beyond the borders of Newfoundland and Labrador.

Across Canada, government responses to COVID-19 have forced legal advocates to grapple with the balance between individual rights and public health. For instance, a group of Yukon contractors have initiated a lawsuit challenging the territory’s COVID-19 restrictions. Similar to the challenge in Taylor, the applicants argue that the travel restrictions fall outside of the territory’s jurisdiction and that the travel restrictions infringe section 6 of the Charter. Meanwhile, the Justice Centre for Constitutional Freedoms released a report claiming that the Saskatchewan government’s COVID-19 response infringed the Charter and exceeded the province’s legislative jurisdiction. Echoing the basis for the Constitutional challenge in Taylor, the report contends that the Saskatchewan government’s COVID-19 response violates sections 6 and 7 of the Charter. Unlike Taylor, the report also draws on section 2 of the Charter, alleging that the Saskatchewan government’s actions have limited Saskatchewanians’ freedom to practice their faith, assemble, and associate.

The outcome of Taylor suggests that the courts may ultimately consider these measures Constitutional. While the Justice Centre for Constitutional Freedoms introduces a novel argument related to section 2 of the Charter, it remains to be seen whether this argument will eventually be raised in court.

Moreover, Justice Barrage concluded that PHPPA travel restrictions can operate alongside the federal Quarantine Act, as the latter deals with travel into Canada, not travel within Canada. Yet, Justice Barrage noted that “[i]t may well be the case that the Quarantine Act displaces s. 28(1)(h) of the PHPPA where international travel is concerned.”[8] Justice Barrage declined to expand on this point, as the case was concerned with domestic travel. Nevertheless, future cases might pick up this thread if federal and provincial travel restrictions ever come into conflict.

Overall, this case offers insight into the scope of provincial powers in the context of a public health emergency. This decision is significant—and not only due to the gravity of the ongoing COVID-19 pandemic. After all, as Newfoundland and Labrador’s Minister of Health and Community Services said when the PHPPA was introduced in the House of Assembly, “We are living in a world with SARS and Ebola.  You are one plane flight away from a significant public health problem…”[9]  As new public health concerns continue to emerge, the relationship between the Charter and provinces’ efforts to safeguard the health of their population seems poised to evolve and develop in tandem with these new challenges.

Ainslie Pierrynowski is a 2L JD student at the University of Toronto Faculty of Law.

[1] 2020 NLSC 125 [Taylor].

[2] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 67.

[3] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 28(1)(h).

[4] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 290.

[5] Singh v Canada (Minister of Employment and Immigration), (1985) 1 SCR 177 at 202.

[6] Section 6(2) applies to Canadian citizens and permanent residents.

[7] Taylor, supra note 1 at para 292.

[8] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 277.

[9] “Bill 37, An Act Respecting The Protection And Promotion Of Public Health,” Newfoundland and Labrador, House of Assembly Proceedings, 48-3, Vol XLVIII No 44 (20 November 2018) at 2616.

COVID-19 Contact Tracing and Uncharted Constitutional Waters

by Amy Chen

On July 29, 2020, Lisa Austin, Andrea Slane, Vincent Chiao, and David Lie joined Director Cheryl Milne of the Asper Centre to discuss their collaborative research paper: Test, Trace, and Isolate: COVID-19 and the Canadian Constitution. The paper (also co-authored with Beth Coleman, Martha Shaffer, and François Tanguay-Renaud) reviews the benefits, limitations, and constitutional implications of contact tracing apps. The webinar can be viewed online here.

What are Contact Tracing Apps?

Dr. Lie began the panel by giving an overview of the different types of contact tracing apps. Contact tracing is a method for controlling infectious disease outbreaks by identifying, notifying, and monitoring individuals who have been exposed to the disease. In response to the COVID-19 pandemic, countries have been utilizing smartphone apps to conduct digital contact tracing in conjunction with manual human contact tracing. These apps fall into two categories – apps that are centralized and integrated with manual human contact tracing, and apps that are decentralized and work parallel to manual tracing. Dr. Slane noted that different liberal democracies have tried different frameworks. Australia and Singapore have adopted the centralized approach; Germany, Austria, and Switzerland have adopted the decentralized approach; some countries (i.e. Bahrain, Kuwait) have tried more privacy-intrusive apps that collect GPS data.

Ontario will be using the decentralized model through an API developed and supported by Apple and Google. The app, which is currently in its beta testing phase, uses Bluetooth to communicate with other phones that have the app installed. This allows the app to track and record the names of those who have come into close contact. If an individual tests positive for COVID-19, they can voluntarily upload the list of recorded names onto the app’s server. If other users have been in contact with the same individuals, they will be notified through the app. The app may also show a “risk score” and recommend high-risk individuals to get tested.

Pros and Cons of the Decentralized Framework

There are two upsides to this decentralized framework: 1) it is technologically supported by Apple/Google and 2) it is more privacy-protective. However, the panelists stressed that this also means that there are many downsides. First, Professor Austin noted that Apple and Google’s role has not been sufficiently scrutinized. The app will be governed by the technical decisions of these large technological companies rather than the decisions of our democratically elected governments. While Australia has experienced some technical difficulties with their centralized app, their government has been able to pass legislation regarding data control and usage.

Second, a privacy-protective app means that the data is limited in its accuracy and effectiveness. Dr. Lie pointed out all the ways in which the data could be distorted. The app relies entirely on individuals to voluntarily report their positive diagnoses, which means that many positive cases could be missed. Users could put fake names on their phones or repeatedly change their names, which makes it harder to track infected individuals. Proximity data, which is calculated based on the strength of the phones’ Bluetooth signals, could be inaccurate if the signals are disrupted. It is uncertain what percentage of the population needs to get the app for it to be effective. It is even uncertain whether digital contact tracing would supplement manual contact tracing efforts.

The most concerning aspect about the decentralized approach is that health authorities will only have limited access to the data collected by the app. Health authorities would not be able to contact infected individuals and provide them with education and health support. They would not be able to assess the effectiveness of the app, particularly its effectiveness for vulnerable communities. Dr. Slane indicated that the app will not be accessible for individuals who do not have access to smartphones, who have language barriers, who distrust technology, and who distrust state action or surveillance. Publicly accessible data is needed to develop effective targeted approaches for communities that are disproportionately affected by the pandemic.

Digital Contact Tracing and the Charter

Digital contact tracing requires a balancing between our personal privacy rights and public health outcomes. As explained by Professor Austin and Professor Chiao, the Charter is an important framework in assessing how to balance these rights in a way that is justifiable in a free and democratic society.

The Federal Privacy Commissioner has stated that data collected by the apps must be used in a way that is consistent with the principles of necessity and proportionality. What that means is hard to assess ex ante since we are in “uncharted waters”, but there are several contextual factors to keep in mind. First, we would need to know exactly what Ontario’s public health goal is in pushing out contact tracing apps. If the goal is to make manual tracing more effective, it may be harder for the government to justify why a decentralized privacy-protective app is necessary or proportional.  Second, privacy rights dictated by the Charter are traditionally assessed a criminal “state vs. individual” context. While courts may be concerned with protecting individuals from the overreach of state power in the criminal context, individual privacy rights may be given less weight in the context of a public health emergency. Finally, how the rights will be balanced will likely be determined through political decisions rather than through legal decisions.  If the app is widely perceived to be effective, courts are unlikely to disturb the government’s decision. If the app is perceived to be ineffective, the government will likely take actions without prompting from the courts.

Digital contact tracing could engage both s. 7 and s. 8 Charter interests. The apps could engage an individual’s interests in life, liberty, and security if the data was used to enforce quarantine or lift isolation measures in an unsafe manner. Whether the principles of fundamental justice would be violated would depend on a multitude of variables that cannot be determined at this time. In addition, the apps could engage our privacy interests associated with our anonymity or our biological cores. The nature and scope of the section 8 right would be context-specific. For instance, individuals may inadvertently waive or diminish their reasonable expectation of privacy by volunteering data and accepting the terms and conditions of the app. On the other hand, section 8 may protect individual privacy if data was used for purposes that were not consented to (i.e. law enforcement, immigration). Individual privacy rights may also be engaged in circumstances that are not governed by the Charter. Businesses may conduct informal voluntary screening questionnaires as a condition for accessing services, or employers may ask employees to use the digital tracing apps in the workplace. These issues would have to be dealt with through quasi-constitutional private sector data protection laws.

Ultimately, the panelists argue that digital contact tracing must be integrated alongside traditional human contact tracing for there to be effective health outcomes. Given the shifting public health landscape, the scope of the legal ramifications of contact tracing apps is still unknown. The panelists stressed that public trust in the app, our governments, and our public health authorities will be crucial in determining the effectiveness of digital contact tracing.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.

LEAF and the Asper Centre welcome the Ontario Court of Appeal’s Decision in R. v. Sharma

 

A majority of the Ontario Court of Appeal has struck down Criminal Code provisions which made conditional sentences unavailable for certain offences. The ruling comes in response to Cheyenne Sharma’s constitutional challenge to these provisions, and explicitly acknowledges and draws on the arguments and information provided by LEAF and the Asper Centre in their joint intervention.

Ms. Sharma – a young Indigenous woman, an intergenerational residential school survivor, and a single mother – faced financial hardship and potential eviction for her and her young daughter. She acted as a drug courier, importing 2 kg of cocaine into Canada, and then pleaded guilty to importing drugs.

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue framework. The Gladue framework is an individualized approach to sentencing that requires judges to consider the impact of systemic factors such as intergenerational trauma of residential schools and the harms of colonial oppression, and to consider alternatives to incarceration when sentencing Indigenous offenders. These options include conditional sentences, a community-based alternative to a custodial sentence.

However, 2012 amendments to the Criminal Code made conditional sentences unavailable for offences with a maximum penalty of 14 years or life in prison, and for offences involving the import, export, trafficking, or production of drugs, with a maximum penalty of 10 years in prison. As a result, Ms. Sharma was not eligible for a conditional sentence. Ms. Sharma argued that the provisions violated her rights under section 15 of the Charter, but the trial judge did not accept these arguments and imposed a custodial sentence.

LEAF and the Asper Centre intervened before the Ontario Court of Appeal to argue that the constitutionality of the provisions needed to be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice.

This discrimination is clearly evident in the overwhelming overincarceration of Indigenous people, particularly Indigenous women, in Canada. In 2017/2018, Indigenous persons represented approximately four percent of the adult population in Canada, but accounted for 30 percent of admissions to provincial or territorial custody, and 28 percent of admissions to federal custody. The crisis of overincarceration has worsened over time. Between 2007/2008 and 2017/2018, for example, the number of admissions of Indigenous women to provincial/territorial custody increased by 66 percent.

The majority’s decision means that conditional sentences will now be an available option for trial judges to consider in sentencing Indigenous offenders for a wide variety of offences, provided other requirements are also met (including that the sentence is less than two years, and serving the sentence in the community will not endanger the community).

Ms. Sharma will not get to see the direct benefit of her victory, having already served her jail sentence before the appeal. The decision, however, will help to ensure that, moving forward, Indigenous offenders receive the benefit of the different approach to sentencing enshrined in the Gladue framework. It will also serve as a small step towards reducing the overincarceration of Indigenous people and in particular Indigenous women.

The majority’s decision represents an important articulation of substantive equality under section 15 of the Charter. Section 15, despite its potential for advancing equality, remains complex and under-applied. The majority’s analysis provides a clear example of how to apply section 15 where an applicant argues that a law appearing neutral on its face is discriminatory in its effect – and illustrates the potential of section 15 to be used as tool for addressing the overincarceration of Indigenous people, and Indigenous women in particular.

“We are extremely pleased with the decision in R. v. Sharma,” said Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights.The Court’s decision affirms our position that substantive equality requires a different approach to criminal justice for Indigenous people. Allowing judges to consider conditional sentences in these cases should help contribute, incrementally, to reducing the overincarceration of Indigenous people.”

“This decision is a breakthrough in how courts think about section 15 of the Charter and criminal law, and affirms the substantive equality rights of Indigenous women in the criminal justice context.” said Megan Stephens, Executive Director and General Counsel of LEAF. “The majority decision is remarkable for both its analytical rigor and its compassion concerning the devastating consequences of the overincarceration of Indigenous women, and the ongoing intergenerational harms to Indigenous women caused by colonialism, sexism, and racism.”

Case Committee and Counsel

LEAF and the Asper Centre’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Emma Cunliffe (Allard School of Law, University of British Columbia), Gillian Balfour (Department of Sociology, Trent University), Martha Shaffer (University of Toronto Faculty of Law), Mary Eberts OC, Naiomi Metallic (Schulich School of Law, Dalhousie University), Rakhi Ruparelia (Faculty of Law – Common Law Section, University of Ottawa), and Renée Pelletier (Olthius Kleer Townshend LLP).

We are grateful to pro bono counsel Adriel Weaver and Jessica Orkin of Goldblatt Partners LLP, who acted for LEAF and the Asper Centre in this important case.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.

To support our work to protect the equality rights of women and girls, please consider donating today.

About David Asper Centre

The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.

For media inquiries, contact:

Megan Stephens, Executive Director & General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416-317-4440
E: m.stephens@leaf.ca

Cheryl Milne, Director
The David Asper Centre for Constitutional Rights
T: 416-540-7619
E: cheryl.milne@utoronto.ca

Young Climate Activists Attempt to Hold Province Accountable for Inadequate Emissions Target

By Amy Chen

In late 2019, Ecojustice and Stockwoods LLP initiated a constitutional challenge (“the Application”) against Ontario’s greenhouse gas reduction target on behalf of seven young climate activists (the “Applicants”). Ontario responded with a motion to strike. Mathur et al v Her Majesty the Queen in Right of Ontario was heard via teleconference on July 13, 2020, with judgment reserved.  The Applicants were represented by Nader Hasan, the Asper Centre’s upcoming constitutional litigator-in-residence, and Justin Safayeni.

Background

In 2018, the Ford provincial government passed the Cap and Trade Cancellation Act (“CTCA”), repealing the Climate Change Mitigation and Low-Carbon Economy Act (“old Climate Change Act”). Under s. 3(1) of the CTCA, the provincial government “shall establish targets for the reduction of greenhouse gas emissions in Ontario and may revise the targets from time to time”. The new target is set out in the province’s new Environmental Plan: “Ontario will reduce its emissions by 30% below 2005 levels by 2030”.  In comparison, the old target (when calibrated) was to reduce the emissions by about 45%.

The public interest Applicants (Sophia Mathur, Zoe Keary-Matzner, Shaelyn Wabegijig, Shelby Gagnon, Alex Neufeldt, Madison Dyck, Beze Gray) in the present case are climate activists between the ages of 13 and 24. The Applicants argue that the new target, as well as the repeal of the old Climate Change Act, violates the rights of Ontario youth and future generations under ss. 7 and 15 of the Charter. Ontario is exacerbating the current climate emergency and threatening the lives of all Ontarians by weakening the province’s target. Canada has an international obligation, under the Paris Agreement, to limit global warming to 1.5 oC above pre-industrial levels and prevent the effects of climate change from becoming irreversible. Ontario’s greenhouse gas emission levels will be too high to meet this obligation even if the target is fulfilled, making the target arbitrary and irrational. The Applicants seek mandatory orders requiring Ontario to set a “science-based” greenhouse gas reduction target for 2030 and to revise its climate action plan accordingly.

Summary of Motion Hearing

The issue of the motion was whether the Application should be struck for disclosing no reasonable cause of action.  The hearing primarily revolved around three issues: (1) whether the Application is justiciable, (2) whether the claims within the Application are “inherently speculative in nature”, and (3) whether the Application requires the recognition of positive rights, and if so, whether the Application can be struck on that basis.

(1) Whether the Application is Justiciable

Ontario’s first argument was that the Application is non-justiciable, or that the courts do not have the institutional capacity or legitimacy to adjudicate on this case. Ontario relied on Tanudjaja v Attorney General of Canada, a Charter challenge against the “social conditions” created by the federal and provincial governments that perpetuate homelessness and inadequate housing. The Ontario Court of Appeal found the case to be non-justiciable because there was “no judicially discoverable and manageable standard for assessing… whether [the governments’] housing policy is adequate”. Ontario argued that this Application, like Tanudjaja, asks the Court to assess the soundness of public policy, which is beyond its institutional capacity. The target is a piece of public policy that outlines Ontario’s “aspirations” regarding climate action, not a legally binding commitment.  The Applicants are asking Ontario to establish a “science-based” target that would allow for a “stable climate system”; these are not concrete, legal parameters that could be judicially reviewed.

The Applicants argue that the target is a policy made in pursuant to a statutory mandate (the CTCA), which falls under the definition of “law” for the purposes of a Charter challenge (Greater Vancouver Transportation Authority v. Canadian Federation of Students). The Applicants are challenging actual laws, not merely “social conditions”, and seeking relief defined by scientifically knowable standards. These standards can be judicially determined and have been judicially determined by courts in international jurisdictions. Neither complexity nor novelty can justify striking the claim.

(2) Whether the Application is “Inherently Speculative In Nature”

Section 7 Charter claims cannot be premised on speculations about the effects of government action (Operation Dismantle v. The Queen).  Ontario’s second argument was that the Applicants’ section 7 claims are speculative and incapable of being proven – the claims assume that the target determines actual emissions, that the target will not change, and that federal policy will not have an effect on Ontario’s emissions.

The Applicants argue that they fully intend to prove their claims based on expert evidence, and whether they would be successful in doing so should be determined at a hearing on its merits. As per Bedford v Canada and Canada v PHS Community Services Society, Charter applicants only have to establish a “real and substantial connection” between the impugned government conduct and the alleged harm. The Applicants are allowed to seek relief for potential future harms even if the government is not the dominant cause of these future harms.

(3)The Issue of Positive Rights

Ontario’s final arguments concerned the government’s positive obligations. First, Ontario does not have any constitutional obligations to keep the old Climate Change Act. Unless there was a constitutional obligation to enact the old legislation, the Ontario legislature is free to repeal and replace it (Barbra Schlifer Commemorative Clinic v. Canada). Second, the Applicant is asking Ontario to take positive steps to combat the adverse effects of climate change, even though neither ss. 15 or 7 of the Charter gives individuals positive rights. Although Gosselin v. Québec left open the possibility that there may be “special circumstances” where positive rights could be recognized, many appellate cases have declined to recognize these positive rights. The lower courts are therefore bound by precedent until the Supreme Court of Canada changes the law (Tanudjaja, trial decision).

The Applicants argue that this case does not require the recognition of positive rights. This case is not merely challenging the repeal of legislation or government inaction, but directly challenging government action. The Ontario government regulates, authorizes, and incentivizes dangerous levels of greenhouse gas emissions through the CTCA and the target. The law is clear that this authorization and regulation is enough to constitute a reasonable cause of action (Dixon v. Director, Ministry of the Environment). The Applicants do not seek a declaration regarding HOW the target is to be achieved, and hence are not demanding any positive obligations from the government. They are merely demanding that the target and the climate action plan be constitutionally compliant.  Even if this Application requires the recognition of positive rights, many courts have relied on Gosselin to deny motions to strike. To strike the claim at this stage would freeze section 7 rights in a manner that is contrary to the “living tree” constitutional interpretive principle.

What Next?

The outcome of this motion will serve as a critical turning point in the fight for climate justice by answering one key question:  Can the provincial government be held legally accountable for its inadequate climate action plan? In an interview with the Asper Centre, Mr. Hasan posited that there could be positive outcomes for climate justice whether the claim is struck or not. If the claim is struck, the Applicants would likely appeal the decision; such an outcome would give the appellate courts an opportunity to consider the complex legal issues involved and set a precedent for climate change litigation in Canada. If the claim proceeds, the Applicants would be permitted to present their evidentiary record. A judge would hear “striking and chilling” testimonies regarding the catastrophic effects of climate change and the fact that these effects will become irreversible if drastic action is not taken. As stated by Mr. Hasan: “I feel quite confident that, if we ever get the evidentiary record in front of a judge, the judges are going to want to do the right thing.”

Additional arguments were raised in the parties’ written submissions. Ontario’s arguments are stated in their notice of motion to strike. The Applicant’s arguments can be found in their factum and on their website.

For more information regarding our governments’ ss. 7 and 15 constitutional obligations to address  climate change, see the Asper Centre’s UTEA working group publication- “Give our Children A Future: The Moral and Legal Obligations of the Government of Canada to Act on Climate Change”.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.