The Charter exists to protect Canadians from government interference with their basic rights. It is not an instrument to force elected representatives to adopt specific policies. Unfortunately, earlier this month, the Supreme Court of Canada declined to affirm this important principle.
In the case Mathur v. Ontario, a group of young people argued Ontario’s emissions targets violated their Charter rights by not doing enough to address climate change.
This argument fundamentally misunderstands the Charter.
The Charter is about freedom from government interference, not entitlements to specific policy actions. Courts are not supposed to tell elected governments how to design or implement policy. This is the role of the legislatures.
Yet this is precisely what the litigants in Mathur are asking courts to do.
In 2018, the Ford government passed the Cap and Trade Cancellation Act, legislation that repealed the costly and ineffective cap-and-trade system introduced by the Wynne Liberals. In its place, the government introduced a new law requiring Ontario to set greenhouse gas reduction targets and develop a climate plan. The province ultimately adopted a target of cutting emissions by 30 per cent below 2005 levels by 2030 — down from a previous target of 37 per cent.
The new target wasn’t good enough for the Mathur litigants, who argued their constitutional rights to life and security of person were being violated. They claimed the government had set a target that permitted “dangerously high” levels of greenhouse gas emissions to be emitted. They said the government knows these emissions will cause “imminent harms to current and future generations of Ontarians.” They asked the court to order the government to adopt a stricter emissions target.
They also argued that the legislation discriminates against them as youth, because young people are disproportionately impacted by climate change.
In court, the Government of Ontario argued these were not matters for courts to decide. It said their cap-and-trade targets were policy decisions that the government was elected to decide.
In particular, the Ford government had campaigned on a promise to scrap the cap-and-trade system. Premier Doug Ford even signed a public pledge with the Canadian Taxpayers Federation promising to fulfill this commitment. The decision to end this expensive and bureaucratic policy was thus the outcome of a democratic process and saved households over $260 a year.
There are good reasons why courts have historically left policy making to elected governments. Judges are not accountable to voters. They do not represent communities or the political spectrum. They do not levy taxes or balance budgets. The constitution reserves those powers for legislatures.
In a 2002 decision called Gosselin v. Quebec, the Supreme Court of Canada ruled that the Charter does not place a positive obligation on the state. Twenty years later, in a case called Leroux v. Ontario, the Ontario Superior Court affirmed this principle, noting “that nothing in the jurisprudence places a positive obligation on the state to ensure the enjoyment of life, liberty or security of the person.”
But on appeal of the Mathur case, the Court of Appeal of Ontario used twisted logic to conclude that the litigants’ claims did not rest on an assertion of positive rights. The court said that, by enacting its climate legislation, the Ontario government voluntarily assumed a positive statutory obligation to combat climate change in a way that complies with the Charter.
The Ontario Court of Appeal’s decision was further appealed to the Supreme Court of Canada, which declined to hear the case. Instead, the Supreme Court kicked the can back to the lower court, where the merits of the litigants’ Charter claims will be considered.
This overall logic is absurd. If the Charter can be stretched to mean any policy the government pursues creates a positive entitlement among citizens that the government will act, Ontario would be better off not implementing any environmental policies at all. It also increases the likelihood of governments invoking the Charter’s notwithstanding clause to override court decisions they disagree with — especially as more and more activists seek to use the courts to achieve their policy goals.
The Charter isn’t a mandate for utopian policymaking. It protects Canadians from government overreach rather than providing them with a magic wand to grant policy wishes.
By refusing to hear the appeal, the Supreme Court missed a critical opportunity to clarify that basic principle.
Simply wrong on what the Gosselin decision said. Have a reread!