Charter section 7

COVID-19 Contact Tracing and Uncharted Constitutional Waters

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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

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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

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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.

Reflections on the Asper Centre Intervention in Ontario v. G

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By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.

Asper Centre students call on the Ontario and federal governments to act on air pollution

Posted on by Tal Schreier

via UofT Faculty of Law News: https://www.law.utoronto.ca//news/students-call-ontario-and-federal-governments-act-air-pollution

Monday, November 18, 2019

 

Today, November 18th, is the Student Law Clinic Global Day of Action for Climate Justice. We are a student working group at the University of Toronto Faculty of Law and, on this day, we call on our provincial and federal governments to take meaningful action to curb emissions in Ontario. The harmful consequences of air pollution are widespread and government inaction only exacerbates them. In Sarnia’s “Chemical Valley”, for example, where petrochemical facilities are responsible for around 10% of Ontario’s total emissions, the government’s inadequate regulations and foot-dragging have contributed to a health and environmental crisis.

The health data speaks for itself. Sarnia’s cancer rates are significantly higher than the rest of Canada’s. In the Aamjiwnaang First Nation community, whose traditional lands are just south of the city, the birth ratio of baby girls to boys is nearly 2:1. A wide range of respiratory problems and conditions that impair lung function have been linked to the pollutants emitted by Chemical Valley’s oil refineries and chemical plants. The list goes on. These findings are deeply troubling and should have spurred government action long ago. While we are encouraged that the provincial government will begin a two-year health study in Sarnia this fall, this is, in itself, insufficient.

Last month, a whistleblower painted a damning picture of the government’s response to air pollution in Chemical Valley. The whistleblower lodged three complaints between 2009 and 2019 alleging inadequate engagement with the Aamjiwnaang community. The Ontario government’s reluctance to take effective action on this issue is, unfortunately, not without precedent. In 2018, Ecojustice brought an application for review of the province’s air quality standards pursuant to Ontario’s Environmental Bill of Rights on behalf of two affected individuals. The government did not change its course.

Fortunately, there is another way to hold our governments accountable. The idea of using the Constitution to defend environmental rights is gaining momentum. Both the provincial and federal governments have clear duties under the Canadian Charter of Rights and Freedoms to protect the Aamjiwnaang community and other residents of Chemical Valley from the pollution that affects their land and their persons.

Section 7 of the Charter recognizes every individual’s right to life, liberty and security of the per-son. It encompasses the right to be free from physical or psychological harm resulting from gov-ernment actions or omissions, and could arguably be invoked to protect individuals from future harm. The negative health outcomes in Chemical Valley, if they are conclusively linked to deficient regulations, could form the basis of a section 7 claim.

Section 15 of the Charter protects individuals from discrimination. A law or policy that inordinately affects individuals on the basis of race, ethnic origin, or other grounds may constitute discrimination under the Constitution. Following a recent visit to Canada, the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Mr. Baskut Tuncak, not-ed not only the inadequacy of the existing regulatory framework, but also its “deeply unsettling” impact on the Aamjiwnaang First Nation. A 2017 report of the Environmental Commissioner of Ontario similarly observed that “Indigenous people and communities are disproportionately affected by environmental problems.” The recently reelected Liberal government ought to be especially concerned about these findings, given its campaign promise to fully implement the UN Declaration on the Rights of Indigenous Peoples, which recognizes Indigenous peoples’ “right to the conservation and protection of the environment.”

Governments have a legal duty to correct the harmful and discriminatory regulatory schemes and environmental policies that are endangering communities across Canada. From Chemical Valley to Alberta’s tar sands, the dire consequences of government inaction are becoming increasingly clear. Last month’s federal election revealed voters’ renewed focus on climate-related issues. Climate strikes galvanized students across the country and drew attention to the social inequalities that flow from bad environmental policy. A group of young Canadians recently initiated a lawsuit against the federal government for infringing their Charter rights by not taking sufficient steps to combat climate change. These developments show that Canadians want better air quality, sustainability, and environmental rights. Provincial and federal governments should take note and take action before it’s too late.

Climate Justice working group members:

1Ls (first-year law students):
Clara Pencer
Adam LaRiviere
Mackenzie Cumberland
Madeleine Andrew-Gee
Leah Kelley
Leora Chapman
Courtney Cowan
Florian Nagy
Madeleine Carswell
Haleigh Ryan

Group leaders:
Yara Willox (2L)
Keely Kinley (2L)