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Charter - 'Positive Rights'. Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed a novel applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
Here the court summarizes the trial court's conclusion that the rights the applicants were seeking were 'positive rights' - "not the right to be free from state interference" - and although justiciable, "the court did not have institutional capacity and legitimacy to determine Canada and Ontario’s “fair share” of the remaining carbon budget":(b) The application judge’s dismissal of the application
[24] The appellants sought a declaration that Ontario’s Target and the legislative provisions under which it was set are unconstitutional in that the measures taken under those provisions violate ss. 7 and 15 of the Charter. They further requested:An order that Ontario forthwith set a science-based [greenhouse gas] reduction target under s. 3(1) of the CTCA that is consistent with Ontario’s share of the minimum level of [greenhouse gas] reductions necessary to limit global warming to below 1.5 [degrees Celsius] above pre-industrial temperatures or, in the alternative, well below 2 [degrees Celsius] (i.e. the upper range of the Paris Agreement temperature standard). [25] The application judge first considered the issue of justiciability. She found that the Charter issues raised by the appellants were justiciable: they challenged the Target and ss. 3(1) and 16 of the CTCA. However, she agreed with Ontario that the court did not have institutional capacity and legitimacy to determine Canada and Ontario’s “fair share” of the remaining carbon budget. She declined to address the appropriateness of the relief sought at this stage.
[26] The core of the application judge’s decision was her determination that the appellants’ claim would require the court to recognize that they had positive rights. She interpreted their application as effectively seeking a more restrictive Target, not the right to be free from state interference. As a result, she saw Ontario’s participation in the underlying harm as no different from its participation in social issues relating to poverty and homelessness. The central issue she had to resolve was whether either s. 7 or s. 15 allows for the imposition on Ontario of the freestanding positive obligation to combat climate change. She also concluded that the Target does not authorize or incentivize greenhouse gas emissions but, rather, seeks to reduce them.
[27] For these reasons, the application judge dismissed the application.
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(b) Overview
[36] The application judge correctly noted at para. 106 of her reasons that the Charter applies to the Target and the CTCA and that, as a result, the Charter issues raised by the appellants are justiciable because “the Constitution requires that courts review legislation and state action for Charter compliance when citizens challenge them, even when the issues are complex, contentious and laden with social values.”
[37] However, the application judge erred in viewing this case as a positive rights case. Given the application judge’s findings in para. 123 of her reasons that Ontario enacted the Plan and the Target further to the mandate in the CTCA and that they are not meant to be meaningless, there can be no question that Ontario has assumed a statutory obligation to do something about climate change and to enact a Target and formulate a Plan that would do something about climate change. The question should have been whether the execution of that voluntarily imposed statutory obligation was Charter compliant.
(c) Positive obligations v. statutory obligations
[38] It is helpful to explain the difference between the imposition of freestanding positive obligations, as the application judge characterized the relief sought by the appellants, versus the requirement that the execution of the government’s voluntarily imposed statutory obligations be constitutionally compliant where it has chosen to enact a specific scheme.
[39] As the Supreme Court instructed in Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 81, s. 7 of the Charter has not yet been interpreted to “place a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person”, although the Supreme Court did not rule out its application in the future. Similarly, the Supreme Court in R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 63, confirmed that “s. 15(1) does not impose the general, positive obligation on the state to remedy social inequalities or enact remedial legislation.”
[40] However, where the state does legislate, it must do so in a constitutional manner that complies with the Charter. For example, McLachlin C.J., Major and Bastarache JJ. stated in a concurring opinion in Chaoulli v. Québec (Attorney General) 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 104,[1] that while the Charter does not confer a freestanding positive right under s. 7 of the Charter to insist on government action, in that case, in the realm of health care, “where the government puts in place a scheme” where it undertakes legislated actions, “that scheme must comply with the Charter.” In the same way, with respect to s. 15(1) of the Charter, in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 42:The result of finding that Quebec’s amendments breach s. 15 in this case is not, as Quebec suggests, to impose a freestanding positive obligation on the state to enact benefit schemes to redress social inequalities. Nor does it undermine the state’s ability to act incrementally in addressing systemic inequality. But s. 15 does require the state to ensure that whatever actions it does take do not have a discriminatory impact (Vriend; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at paras. 72-80). [Italics in original; underline added.] [41] We do not agree with Ontario that the appellants effectively argue that the Target does not go far enough. The appellants are not challenging the inadequacy of the Target or Ontario’s inaction, but rather argue the Target itself, which Ontario is statutorily obligated to make, commits Ontario to levels of greenhouse gas emissions that violate their Charter rights. We see the same distinction as the Supreme Court observed in Chaouilli, that it is not the constitutional compliance of the scheme that is challenged by the appellants, but the constitutional compliance of the government measures taken under the scheme that are in issue.
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[47] While skeptical of the appellants’ position that this is not a positive rights case, the application judge was nevertheless prepared to assume that, in the event positive obligations can be imposed on Ontario under s. 7 of the Charter in special circumstances, there is a sufficient causal connection between the impugned Target and the prejudice suffered because the failure to take further steps to reduce emissions contributes to an increase in the risks to Ontarians’ life and health. However, she ultimately determined that any deprivations were not contrary to the principles of fundamental justice relied upon by the appellants.
[48] In our view, the application judge’s mischaracterization of the issue before her caused her to err in her analysis of the whether the impugned measures deprived the appellants of life or security of the person and, if so, whether the deprivations suffered were in accordance with the principles of fundamental justice against arbitrariness and gross disproportionality.
[49] The application judge erred in treating this as a positive rights case. Although she concluded the appellants’ rights to life and security of the person were engaged after assuming, without deciding, that positive obligations can be imposed under s. 7 in the special context of climate change, her incorrect framing of the application as a positive rights case coloured her analysis.
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[53] The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter compliant. She erred by failing to consider the correct question.
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