Provincial Government

•There are many ways to frame a Charter case as it relates to climate change

•Click on the options below to find out more about them then discuss as a group and determine how you wish to proceed

  • Challenging a single, specific decision is a common approach in Charter applications
  • The advantage to challenging a single decision is that courts are accustomed to analyzing charter violations in relation to one law or decision.
  • However, it can be difficult to identify one decision that, in and of itself, will lead to a level of GHG emissions that is harmful, or will cause emissions to go above the government’s target. This could lead to the government escaping responsibility if the decision only produces a limited impact on the climate. 
  • Here are some examples of claims challenging one decision by the Ontario government
    • Decision to renege on its plans to sign renewable energy contracts 
    • The enactment of the Cap and trade cancelation Act, 2018

  • It may be strategically compelling to challenge the overall policy network of decisions that cumulatively lead to harm. In this way, claimants would ask the courts to take an integrative approach by looking at how several laws, policies, and decisions interact in a way that collectively leads to harm. They could point to the constellation of government decisions authorizing and subsidizing fossil-fuel extraction, development, transportation, and infrastructure that, together, lead to unacceptable levels of GHG emissions.
    • Similar to approach taken in Juliana v. United States
  • If you decide to frame a climate Charter challenge on a network of decisions, you would do well to emphasize that substance, not form, should govern Charter analysis; otherwise, governments could avoid accountability for Charter infringements due to a narrow, technical approach. 
  • Example of a constellation of decisions by the Ontario Government
    • The collection of decisions made surrounding transportation (investments, subsidies, tax structure…)
    • The collection of decisions around environmental de-regulations

  • Position is to argue that section 7 creates a positive duty to reduce GHG emissions
  • While courts have generally been cautious about interpreting the Charter a providing explicit positive rights, they have also been careful not to close the door on this possibility
  • A claim of this nature will likely be more compelling against the Province of Ontario as opposed to the federal government. This is because, while the federal government approach is arguably inadequate, the Government of Ontario more or less ignores climate policy altogether.
  • In faming their positive rights claim, claimants will have a higher probability of success if they claim that governments have an obligation to take action to meaningfully reduce GHG emissions to avoid harm, rather than as a free-standing right to a stable climate. This way courts would not have to grapple with finding the existence of positive social or economic rights.