Climate Change and the Right to a Healthy Environment in The

Draft Error! 6 5 4 3 2 1 im direct and person the of security constitutionally the threaten policies change climate government that The Canadian constitutional climate change claims are audacious; they seek to have courts declare of subject the is Canada in companion article. suits tort change climate of possibility The fuels. fossil produce that companies against suits tort significant includes that activists by effort litigation larger a of its meet to order commitment. in program reduction GHG aggressive Netherlands Agreement Paris constitutional meet to governments force to effort breachcoordinated a in world the around advanced been have rights policies change climate inadequate that asserting claims Similar person. individuals’ breached policies change climate Canadian inadequate that claiming commenced were claims separate four 2019 late and 2018 late Between climateto mitigate change throughconstitutional litigation. move to governments force to Canada in activists of efforts first the discusses article This measures. reduction GHG implementing of work hard many the do to in governments force responses been governmental tepid has the emissions and problem (“GHG”) t around countries the gas of gravity greenhouse the reduce Given to desultory. effort global the countries leading coopera requires it Provinces the and government federal the between shared is environment the for responsibility where Canada challenge.” essential action government the meet to failure from Carbon Tax Reference Climate change is a grave threat to life as we know it on Earth. Fraser CJA observed in the I.

Jonathan Jonathan Watts, Canadian Charter of Rights and Freedoms Colin Feasby, David de Vlieger and Matthew Huys, “ Huys, Matthew and Vlieger de David Feasby, Colin Act, Pricing Pollution Gas Greenhouse re Reference Urgenda Foundat Urgenda Paris Agreement to the United Nations Framework Convention on Climate Change Climate on Convention Framework Nations United the to Agreement Paris

Climate Change and the theCanadian in Constitution and Change Climate to Right aHealthyEnvironment after onlin 19 ECLI:NL (2019) 16 c [ 11 1982, (UK), 1982 Act Unknown document name. property Unknown - 1104 1104 [ Introduction - : < e: court Paris Agreement Paris 4 - , resulted in the government of The Netherlands being ordered to adopt a more more a adopt to ordered being Netherlands The of government the in resulted , ruling 5

https://www.theguardian.com/world/2020/apr/24/dutch “Dutch “Dutch officials reveal measures to cut emissions after court ruling” The constitutional clima constitutional The ion v The State of the Netherlands (Ministry of Infrastructure and the Environment) the and Infrastructure of (Ministry Netherlands the of State The v ion 3

he world, it is no surprise that activists have turned to the courts in an effort to effort an in courts the to turned have activists that surprise no is it world, he > . 6 H rdcin agt. h m The targets. reduction GHG

– -

00135 [ 00135 serious government action government serious Colin Feasby, David de Feasby, David Colin Vlieger Matthew and Huys that that “[t]he dangers of climate change are undoubted as are the risks flowing

Charter Urgenda

]. in ewe lvl o gvrmn. usd o a adu of handful a of Outside government. of levels between tion ].

, , s 7, plementation of more stringent climate change policies that policies change climate stringent more of plementation te change claims in Canada and around the world are part are world the around Canadaand in claims changete Part Part 1 of the Constitution Act, 1982, being Schedule B to the Canada

2020 ABCA a 2020 74 ⚫ ”. – 1

coordinated across multiple countries. And in And countries. multiple across coordinated Success s fmu o tee cases, these of famous ost Charter

t para 1 [ 1 t para

- officials in meeting the challenge requires requires challenge the meeting in ai Agreement Paris 2

right to life and life to right Alberta Carbon Tax Reference Tax Carbon Alberta - reveal - protected rights to life and life to rights protected The The Guardian , 2015; CTS 2016/9, TIAS No TIAS 2016/9, CTS 2015; , - measures

more aggressively more Urgenda v. The The v. Urgenda GHG reduction reduction GHG

- security of the of security to (April (April 24, 2020), - cut , Hoge Raad,Hoge , - emissions Alberta Alberta ].

a - Draft Error! Unknown document name. Error!property Unknown 9 8 7 Urgenda in Court Supreme Netherlands The of decisions recent the reviews article this of part second The the that assumed is it article this factualclimateadequacy questionofchange issue. theofCanadian policies is atriable of purposes the for so authors, the of expertise the beyond is mitigation policies are adequat will succeed depends on, among other things, whether as a matter of fact Canadian climate change constitutional climate change claims should cases.succeed is change offered. climate The constitutional question of the whether by the claims raised issues legal the of life.of c With thescience This article proceeds on the assumption that climate change is a serious threat to the Canadian way perhaps questions ofCanadianlaw. enduring resolve constitutional p if cases, change climate constitutional the does days; that has lurked on the periphery of the whether it asked be provides protection must for is environmental it rights. then This issue cleared, or cannot be be separated can from a court hurdle la justiciability the a If by remedy? review to subject within obligations exclusively treaty international implement to adopted policies and legislation of evaluation the is short, In justiciability. of rubric the under lumped be as issues same the of many raise system, legal different a in situated though claims, change climate constitutional Canadian The not was issue the existed, right a such if even justiciable because could grant thecourt not a that, held and Constitution U.S. the in system States United i Appeals of Court Circuit Ninth the of decision majority the is spectrum the of end ensurecountry’s thatthe d and inadequate Urgenda in court The branches. legislative and judicial the between distinction appropriate an maintained ob was it that GHG determined a Court fashion Supreme to government the directing in role legislative reduction plan that would meet a The Netherlands’ on take to asked being was the whether of of The Netherlands Supreme Court in ha that decisions in evident are claims change climate constitutional the in resolved be to have will will see Canada achieve its

Juliana v United States v United Juliana For a contrasting approach that argues that courts should adapt its doctrine to facilitate the success of constitutional constitutional of success the facilitate to doctrine its adapt should courts that argues that approach contrasting a For Council of Europe, Europe, of Council ve been rendered in similar claims in other countries. At one end of the spectrum is the decision Charter’s Right to Life, Liberty, and Security of the Person” (2018) 42 Vermont L. Rev. Rev. 689. L. Vermont 42 (2018) Person” ofthe Security and Liberty, Life, to Right Charter’s claims change climate [ (1950) 222 UNTS

n te eiin f h US Nnh ici Cut f pel in Appeals of Court Circuit Ninth U.S. the of decision the and were Netherlands The of government the of policies change climate the that found 8 . The court in court The . Charter European Convention on Human Rights Human on Convention European irected the government of The Netherlands to develop new policies that would would that policies new develop to Netherlands The of government the irected European Convention for the Protection of Human Human of Protection the for Convention European the legislative and executive domain? And can courts grant a meaningful meaningful a grant courts can And domain? executive and legislative the ECHR , 947 F3d 1159 [ 1159 947 , F3d , see: N. Chalifour & J. Earle, “Feeling the Heat: Climate Litigation Under the Canadian Canadian the Under Litigation Climate Heat: the “Feeling Earle, J. & Chalifour N. see: ,

protect positive rights and, in particular, social and economic rights? The The rights? economic and social particular, in and, rights positive protect Paris AgreementParis ].

Paris Paris Agreement limate change taken as a given, the object of this article explore isto a given,thelimate ofthis changeas object taken Juliana

e. An evaluation of the adequacy of Canadian climate change policy Urgenda Juliana Charter

observed that there was no explicit right to a stable climate stable a to right explicit no was there that observed Urgenda ursued to a conclusion, will force courts to confront and confront to courts force will conclusion, a to ursued ].

commitment wasof 2020. metbytheAtother endcommitment

and jurisprudence and in circlesacademic since its earliest ie t at n catd rmd ta i concluded it that remedy a crafted and act to liged

GHG reduction commitment. Many of the issues that n effective remedy. - . The court in

Juliana 2 Paris Paris Agreement

. Perhaps the most obvious questions can questions obvious most the Perhaps . 7

guarantee Urgenda Rights and Fundamental Freedoms, Fundamental and Rights

s positive rights and whether it it whether and rights positive s commitment. commitment. The Netherlands

No opinion on whether the whether on opinion No

wrestled with the questions Juliana

rger question Particular . n

Juliana v. Juliana Charter

213

Draft Error! Unknown document name. Error!property Unknown 13 12 11 10 the interpreting in Canada of respects, has some similarities and ECHR jurisprudence has been referred to by the Supreme Court relev context, constitutional different the Despite reduction relative bytheemissions end to1990levels inGHGof 2020. the a As result, 2019. 20, December on costs with dismissed was Netherlands The of Court Supreme the Court and and private for rights respect to right a for the jurisdiction their within secure to freedoms provided for by the ECHR. statesArticle 2 provides for the right to life and Article contracting 8 provides requires 1 Article ECHR the of 8 and 2, 1, Articles to contrary European Convention onHuman Righ be to alleged was failure This emissions. GHG reduce The of people to action enough aggressive take young to failed had Netherlands’ The that asserted claim The the change. of behalf on burden disproportionate organization a bear will alleged is it who environmental Netherlands an by brought was case The level. sea below lies land the of third one where country a Netherlands, The from It should be no surprise that one of the most significant early cases regarding climate chan 1. II. claims. with finishes and interpreted Urgenda law Canadian in justiciability of issues raised by the climateconstitutional change claims. This part starts by considering the consideration in this article. The last part of cl this article considers the most constitutional important constitutional Canadian the reviews in decided was justiciability of issue the that ways different the to and change climate including hazards environmental from protected be to interp right a Court include Supreme Netherlands The how to given be will attention

S Urgenda Foundation v The State Foundation of the Urgenda Environment) the of (Ministry and Netherlands Infrastructure ECHR, supra ECHR, Urgenda Foundation v The State of the Netherlands Netherlands the of State The v Foundation Urgenda

ee, ee, for example, 75 [ 75 “valuabl a as ECHR the considering law Society 200 ECLI:NL (2018) Haag, Den C ECLI:NL (2015) Haag, Den ne o aaa Te CR tog dfeet rm h Cnda cnttto i many in constitution Canadian the from different though ECHR, The Canada. to ance 11 Poulin

Urgenda v. The Netherlands Rights and Human International Constitutional Cases and The Hague Court of Appeal. of Court Hague The and

might might be appropriate. , [1992] 2 SCR 606, 93 DLR (4th) 36 at paras paras at 36 (4th) DLR 93 606, SCR 2 [1992] , government of The Netherlands is required to implement policies to achieve a 25% 25% a achieve to policies implement to required is Netherlands The of government ], noting that some ECHR provisions provided inspiration for some some for inspiration provided some ECHR provisions that ], noting

note note R v Oakes 7 .

, , [1986] 1 SCR 103, 26 DLR (4th) 200 at paras 57 -

an analysis of the approach of Canadian courts to positive rights positive to courts Canadian of approach the of analysis an Charter -

178 - The The discussion then contemplates

456689. and, in particular, considers whether a declaratory remedy as in as remedy declaratory a whether considers particular, in and, - 245 family life. The claim was successful at The Hague District Hague The at successful was claim The life. family

e guide”. See also, See guide”. e ts - . 01. 13

mt cag cam ad ihihs h ky ons for points key the highlights and claims change imate (“ECHR”).

Moreover, many of the arguments a arguments the of many Moreover, Urgenda An appeal by the government of The Netherlands toNetherlands The of government the by appeal An (Ministry of Infrastructure and the Environment) the and Infrastructure of (Ministry -

56 -

- 10 58

should not be dismissed as being of limited limited of being as dismissed be not should

R v Poulin v R referring to European Court of Human Rights case Rights Human of Court European to referring Urgenda , 2019 SCC 47, 438 DLR (4th) 1 at para at 1 (4th) DLR 438 47, SCC 2019 ,

- of the consequences of climate of consequences the of how s. 7 of the 58. 58. Charter R R v Nova Scotia Pharmaceutical

reted the right to life to life to right the reted and

provisions. Juliana dvanced by The by dvanced Charter . Part three Part .

, Gerechtshof , Gerechtshof , Rechtbank , ge comes Urgenda

may be issue

Draft Error! Unknown document name. Error!property Unknown 17 16 15 14 jurisdiction.” national of limits the beyond the co international on In seeking to answer this question, the court looked to the UNFCCC. The UNFCCC is predicated the of nature global and such 8ECHR, thatthose prov the whether 2 Articles from is derived be can protection question no that entail thereof “[t]he consequences the and emissions that explained court The phenomenon. submitted that climate Netherlands change was different Thethan normal envir state. the upon burden disproportionate a place not must measures mitigation risk. the o mitigate to risk steps appropriate a take of to obliged aware is is disaster or that hazard stateenvironmental a that held been has it and disasters environmental and hazards environmentalof context the beenhavein considered8 and 2 Articles jurisdiction.its within life ECHR Articles 2 and 8 requires a state to t Theregroundsmay be ofappeal anda simplified which restated numberas were follows: of 1990 levelsachieve unlikelybytheend to a but of 25% 2020. reduction indicat to reduce GHG emissions by 20% from 1990 levels by 2020. The evidence before the lower courts required only was part) a is Netherlands Thewhich (of EU the that position the took government GHG reduce to required was on Based increase. the temperature achieve to order in 2020 by levels 1990 from reduction GHG 40% Change (“ the in emissions GHG its reduce to committed had Netherlands The that and change climate of science the accepted Netherlands Urgenda to beadvanced Canada climate in bygovernments constitutional change against claims. in claim the to opposition in Netherlands

UN General Assembly, UNFCCC Ibid supra Urgenda, ir jurisdiction or control do not cause damage to the environment of other States or of areas areas of or States other of environment the to damage cause not do control or jurisdiction ir

at para 5.6.3. para at ed that The Netherlands was likely to achieve a 20% reduction in GHG emissions from emissions GHG in reduction 20% a achieve to likely was Netherlands The that ed (c) (b) (a)

ok lc aant bcdo wee oh h claima the both where backdrop a against place took UNFCCC”) ,

supra h Cut ant re te tt t cet lgsain s ht s mte i the in matter a is that as political domain. legislation create to State the order cannot Court The relative to1990levels; and reductions emission GHG 25% achieve to bound legally not is Netherlands The the within specifically something control ofthe State; not and nature in global is change climate of the government to implement policies to reduce GHG emissions because the threat Articl

note note

- 4 operation and the responsibility of each state “to ensure that activities within within activities that ensure “to state each of responsibility the and operation 13

es 1, 2, and 8 of the ECHR cannot be a foundation for an order compelling order an for foundation a be cannot ECHR the of 8 and 2, 1, es at paras 5.2.4 paras5.2.4 at United United Nations Framework Convention on Climate Change, 1992; CTS 1994/7

14 .

Annex 1 lists countries

msin b 25 by emissions – UNFCC

Paris Agreement Paris isions impose no obligation ontheState in imposenoobligation isions case.” this 5.3.2. 5.3.2.

ake positive actions to protect life and private and family

Urgenda Annex 1, the claimant contended that The Netherlands The that contended claimant the 1, Annex 17

- The court interpreted the UNFCCC principles to principles UNFCCC the interpreted court The

, including The Netherlands, that must make a 25 4 - - 40% from 1990 levels by 2020 whereas the the whereas 2020 by levels 1990 from 40%

. The United Nations Framework on Climate Climate on Framework Nations United The . are similar to arguments that can be expected be can that arguments to similar are onmental risks because it is a global nt and the government of The The of government the and nt

Paris Agreement Paris [ 16

UNFCCC

target target

The ]. f -

Draft Error! Unknown document name. Error!property Unknown 23 22 21 20 19 18 plaintiffs also grounded their claim in the public trust doctrine. dioxide].” [carbon atmospheric excess down draw and emissions fuel fossil out “phase to things, life.” human sustaining of capable system “climate a to Amendment, Fifth the of Clause Process Due the under mainly right, constitutional a asserted plaintiffs The Guardians. Juliana 2. issued whatever chooses. it policies it declaration the that and rights state human the of maintains protection the requires law of rule the that does not mandate legislation that will affect non non of principle the offend not does 2020 of end the by levels 1990 from 25% least at by emissions GHG reduce to obliged is state the that declaration a even though they did not have an opportunity to make submissions in the case. The court held that the government create as legislation non that order an remedy a asgrant not should Courts litigation. to party not are who those including of legislation.” decision political the in intervene not should courts “the a issuing from refrain order because should it would be an it intrusion into the whether political domain. was Under Dutch law, Court as general rule, Supreme the by considered issue last The compliance with The Netherlands’ as standard same the be to happens case, this in which, remedy effective an requires 13 Article defin be may rights ECHR which by standard a provides it courts by enforceable itself not the though Even remedy. effective an to right a have violated are freedoms t pointed court The interpreted in the context of international environmental commitments that are not legally binding. be should requirement a such how of question the consider to on went court the change, climate requ may 8 and 2 Articles ECHR that concluded Having accepted as a defence.” be [cannot] scale global a on difference little makes territory own one’s from emissions reducing that “the assertion th other withtheir partial countries comply responsibility….” donot conclusion, the court rejected “the defence that a state does not have to take responsibility because c problem of tosolve the part its todo has eachmean country that

Ibid supra Juliana, Ibid Ibid Ibid supra Urgenda, .

at 11. at a 8.2.3. para at t paras 8.3.1 t paras8.3.1 the plaintiffs sought as a remedy a declaration and injunction requiring the U.S. government v. States United Juliana is acaseby a number brought of

note note 20

note note

– A rationale for this principle is

8 8.3.5. ’s discretion to achieve the objective of GHG emissions reduction through through reduction emissions GHG of objective the achieve to discretion ’s o ECHR Article 13 which provides that individuals whose ECHR rights and and rights ECHR whose individuals that provides which 13 Article ECHR o

4 at 11. 11. at at a country’s own share in global greenhouse emissions is very small and that

at para 5.7.7. 5.7.7. para at

Paris Agreement Paris -

parties parties to the litigation will be affected by the legislati children andchildren an environmental organization called Earth -

5 that legislation affects all residents of the country, parties parties to the litigation. The Supreme Court held

commitments. - - making process involved in the creation the in involved process making i ire positive acts to be taken to address to taken be to acts positive ire nterference in the political domain and and domain political the in nterference Juliana 18 limate change. In this reaching change. limate

The went explain court onto is in many respects a U.S. Paris Agreement Paris 22

Among other Among 23 ed and and ed

The on

is n Draft Error! Unknown document name. Error!property Unknown 27 26 25 24 f support historical drew Staton Justice Constitution. U.S. the by The perpetuity principle holds that the continuation of the Republic is an object of and is assumed climat protections.” constitutional fundamental other preserve to necessity the from part, in least at derives, she therefore vote, necess to the right as serve the example, rights “[s]ome famous that most explained the Citing protected. Constitution are U.S. and the of exist text nevertheless the in for provided expressly not are that rights fundamental that co that explained She life. human sustaining of capable system climate a to right a guarantees Constitution U.S. the whether of question the confronted dissent, in Staton, Justice mat not conclusioncould provide thatthecourt not a remedy. did it because the analysis of their of existence purposes the the assume for right could constitutional majority The redressability. of question the on conclusion equi majority’s exists.” right constitutional that asserted the observing whether question about disagree the can jurists avoided “[r]easonable majority U.S. The the rights. in constitutional life other of human existence sustaining the of capable system climate a Constitution. Instead, plaintiffs asserted,right the the to right explicit no is There w remedy effective an that deciding majority available and the dismissing the claim and the minority finding that witha useful remedy could be granted. split court the question, this On standing for requirement third the on centred particulari and concrete standard required to defeat a summary dismissal application. The harms asserted were the sufficiently to met been have to requirements two first the found Appeals of Court Circuit Ninth the and judicial favourable a by redressable likely is (3) challenged and conduct the by caused is (2) that injury particularized and concrete a (1) have must plaintiff on the Juliana and nowinCanada. of version

See Ibid at Ibid Ibid supra Juliana, doctrine. doctrine. life a to right constitutional the on based change climate of the plaintiffs seek a declaration that the Defendant cannot implement regulatory ro also, See Citizens. warmi global serious in resulted has fuels fossil of consumption and the production around inaction or action the defendants that claiming Arizona in Court Federal also, See claim. States this dismissed United Oregon of Court District The environment. sustainable and safe a to and the government’s failure to protect them from climate change effec Animal Animal Legal Defense Fund, et al v United States of America at 21. at e system capable sustaininghuman life iswhat of shecalled principle. perpetuity the grounds grounds of a of lack standing Article III.under III Article requires that to have standing “a

37. came before the Ninth Circuit Court of Appeals on an application for summary dismissal dismissal summary for application an on Appeals of Court Circuit Ninth the camebefore

Urgenda

27 note note

Dce Nme 4:19 Number Docket , vocation on the existence of the constitutional right was possible because of their of because possible was right constitutional the of existence the on vocation According to Justice Staton, the constitutional principle that protects a right to a to right a protects that principle constitutional the Staton, Justice to According 8

Clean Air Council v United States United v Council Air Clean

24 at 18. 18. at and has, in turn, been an inspiration for similar claims elsewhere in the U.S. the in elsewhere claims similar for inspiration an been turn, in has, and

zed and GHG emissions were a plausible cause of the harms. The appeal The harms. the of cause plausible a were emissions GHG and zed

- cv - 09 (opan fld My 09: h panif ie a ato in action an filed plaintiff the 2019): May 5 filed (Complaint 00293 ng situation that is dangerous to the life and liberty of all US all of liberty and life the to dangerous is that situation ng – -

6 , Docket Number 2:17 Number Docket , whether the court can grant an effective remedy. remedy. effective an grant can court the whether

r peiae o ohr; hi fundamentality their others; for predicate ary

is implicit and a necessary for precondition - sustaining climate change system and public trust public and system change climate sustaining , , 23 F3d 496: the plaintiffs claimed climate change

decision.” ts is a violation of their constitutional right or the perpetuity principle from principle perpetuity the or - cv - 04977 (filed 6 November 2017): November 6 (filed 04977 llbacks llbacks that increase the effects 25

Both the lower court lower the Both ter in light of their of light in ter urts have found found have urts Komor v v Komor 26 s not as

The

Draft Error! Unknown document name. Error!property Unknown 34 33 32 31 30 29 28 to according issue, The order court a whether but solved, be could change climate whetherglobal differently. not was Staton, Justice issue the framing by injuries plaintiff’s the redress could ord an whether on position majority’s the to responded Staton Justice award. to power court’s because they found that the plaintiffs could not establish that the requested remedy was within the reme any of effectiveness the about change” climate global solve presumably because the “alone relief would only apply not to the United States. would Despite expressing concerns sought relief the that conceded had plaintiffs world.” industrialized the of that not if system, energy country’s this of transformation “fundamental a require would remedy requested the that clear it respect With to award.” inj “(1) substantially the likely to redress [the whether plaintiff’s] injuries; and (2) within on the district court’s power depends III Article Redressability is assessed with under respect to two criteria. claim The relief sought must be shown a to be both: of justiciability The for assigned thecourtconstitutionally role. its toexceed representa elected be would intervene to that court the for that view and the in firm held action majority the act, to change responsibility” climate for need the to “deaf” claim.” justiciable a for basis the provide not felt byall harm general a is state the of survival the whereas plaintiff the to injury particular and discrete a perpetuity principle exists it is not justiciable. The lif standing requirement under Article III human requires sustaining of capable system climate a to right constitutional a of assertion plaintiff’s the of reframing Staton’s Justice to responded circulated, was dissent the of draft a after written presumably decision, majority the of section closing The goneonly unremedied backed actively government.” butis bythe not has that threat existential she an court, confronted States a United by the has enforced before been “never explained never has principle perpetuity the Republic.” that the criticism the of to dissolution response willful “the threaten that cases in engaged environment that can be invoked in any case of pollution. Instead, the principle perpetuity is only perpetuity The Address. FirstInaugural Lincoln’s Abraham and 1, No. Federalist Hamilton’s Alexander Army, the to Farewell of some of the iconic documents of U.S. constitutional history including George Washington’s Letter

Ibid Ibid Ibid Ibid supra Juliana, Ibid supra Juliana,

at 24. at 23. at 21. at at 42. at 32

. citizens. The majority made an analogy to the Guarantee Clause which tothesimilarly“does Guaranteemajority madeClause analogy an The citizens.

to the first criterion, the majority observed that the plaintiff’s expert evidence made made evidence expert plaintiff’s the that observed majority the criterion, first the to

note note note 8 8

at 29. 29. at 40. at

dy, the majority did not make a final conclusion on the point the on conclusion final a make not did majority the dy,

rnil, utc Sao srse, s o a ih t a clean a to right a not is stressed, Staton Justice principle, 30 -

7 Though convinced that the government has been been has government the that convinced Though

33 31

e. The majority explained that if the the if that explained majority The e. The majori The 29

ty went on to note that the that note to on went ty 28 ie hv a “moral a have tives

r i redressable. is ury s pre a As - emptiv er 34 e

Draft Error! Unknown document name. Error!property Unknown 43 42 41 40 39 38 37 36 35 be to factors the addressing without question political a was it that grounds the on issue the deciding avoided essentially had majority the that observed Staton Justice Further, years. many mandated racial integration of schools and which to nod a gave she past, the in matters important on role supervisory a such on taken have courts that point her make To i years, many over implementation supervising of task intimidating “the duck it should concerns”nor policy competing evaluating of business “messy the of afraidbe not should resp its non “abdicate” establish to burden its satisfying government the Absent to appreciate the judicial branch’s role in holding the legislative and executive branches to account. Justice Staton accused the majority of “deference compliance plan for withanysuggested manydecades.” lasting nature of global climate change, the court would be required to supervise the government’s broad range of policymaking.” a involve would necessarily which order, the to response government’s the of sufficiency the on of details the because rejected thatinevitably the courtbecalled holding to“pass would submission this judgment upon powers of separation wou the policy the offend of implementation not would injunction an of granting in like Much courts. the not government, allocat of branches is policy comprehensive a such formulating into go in survival national of matter particular.”a and general in matter policy a as both change, climate combat fuel decreaseemissions fossil comprehensive to scheme to adopt“a thegovernment good for be would it evidence the on based that acknowledged majority The policy. desirable a as view w it whether on focused With respect to the second criterion “substantially redress likely to injuries.” [the plaintiff’s] s having view, her in impact by making a contribution to the mitigation of climate change. Justice Staton explained that, in court “would likely have a real impact on preventing the impendi

Brown v Board of Education of Board v Brown Ibid Ibid Ibid Ibid Ibid supra Juliana, Ibid Ibid . .

at 51. at 49. at 26. at 33. at 46. at Urgenda

note note The majority, however, explained that responsibility for the myriad decisions that decisions myriad the for responsibility that explained however, majority, The , Justice Staton was concerned with whether the court’s direction could have an an have could direction court’s the whether with concerned was Staton Justice , 8 onsibility to “enforce constitutional rights”. constitutional “enforce to onsibility

at 25. 25. at m ipc o te rbe ws nuh o et h rqieet o be to requirement the meet to enough was problem the on impact ome

as the appropriate role of the court to endorse and compel what it may it what compel and endorse to court the of role appropriate the as

rw v Bad f Education of Board v. Brown , 349

US 294 (1955). US 294 38

Further, the majority continued, “given the complexity and long ld be left to the discretion of the government. The majority The government. the of discretion the to left be ld –

whether the order is within the court’ s power

8 -

required the ongoing involvement of courts over to -

- a - fault”. Urgenda 36 43 39

h fmu eul rtcin ae that case protection equal famous the ng cataclysm.” 40 d o h lgsaie n executive and legislative the to ed

The majority, she explained, failed 41 - , the plaintiffs contended that the that contended plaintiffs the , utcaiiy a or sol not should court a justiciability,

Indeed, she explained, a court a explained, she Indeed, 35

Much like the Dutch f not decades.” not f –

the majority and and 42 -

Draft Error! Unknown document name. Error!property Unknown 49 48 47 46 45 44 defences. Justice Morr whether or not the claim is frivolous or obviously destined to fail; it does not take into account alleged any facts “the whether sought.” determine to case the of merits the court will consider whether a class proceeding is the appropriate procedure and will look at the ENJEU s. 46.1“right live inahealthful to which preserved…”. environmentbiodiversity is in breaches of the measure restorative toward put be ºC” warming 1.5 to cl violated Charter Canada of Government the that declarations sought (“ In late 2018, a claim was commenced by an environmental NGO called ENvironnement JEUnesse 1. and the vexing issues related to the appropriate roleweigh of and the constitution courts in the matters in of exists policy raised environment in healthy a to right a whether decide to required point the to proceed will them of more or one that likely is it stage, early very focus thatfollowswillmainly discussion onthe s. 7 arguments. While all ofthese claims are at a cons the of parts different in right claimed the site claims The environment”. the healthy a describe to “right will a being we as right article asserted this of purposes the for but differently slightly right t constitutional of Each commitments. change exceed climate or meet international to Canada’s steps take to government the requires constitution the that claiming groups, Four recentbeen have actions commenced, threebyyoungpeople and bytwo another indigenous III. Nation” that“can something and is that this established bebyscientific evidence….” fossil of amount “the is standard the that “judicially was a was there not or whether wasdiscoverable and manageable standard[] majority for resolving [the the problem].” for factor doctrine question political considered when

ENJEU, supra ENJEU, and Freedoms, Rights Human of Charter Ibid Canada du général Procureur c Jeunesse Environnement Ibid supra Juliana, ENJEU

Environnement JeunesseEnvironnement v. Julianna

at para 2. para at 57. at Canadian ConstitutionalCanadian Change Climate

49 Quebec in hearing certification a On 2019. June in hearing certification a to proceeded and theQuebec ”) on behalf of a class comprised of all Quebec residents aged 35 and under. The claim claim The under. and 35 aged residentsQuebec all of comprised class a of behalf on ”)

h cnieain f h mrt o a li a te etfcto sae ny involves only stage certification the at claim a of merits the of consideration The .

note 8 at 51. at 8 note note Charter applying the political question doctrine. On Justice Staton’s reading, the decisive

45 47

at and a payment of $100 in respect of each member of the class which was to was which class ofthe each member inrespect of $100 payment of a and ison first considered the merits of the case which he divided into two issues:

para 23. 23. para s. s. 7 right to life, the Charter

titution, but the most plausible location is s. 7 of the of 7 s. is location plausible most the but titution,

Canada “by failing put to place in thenecessarymeasures global tolimit s to reduce global warming. In particular, the claim asserted asserted claim the particular, In warming. global reduce to s

RLRQ c C RLRQc 46

Charter - 12. - - fuel emissions that will irreparably devastate our our devastate irreparably will that emissions fuel 9

, 2019 QCCS 2885, 29 CELR (4th) 313 [ 313 CELR (4th) 29 QCCS 2885, 2019 , -

s. 15 right to equality, and the Quebec Claims

per o utf te conclusions the justify to appear s mmes rgt udr the under rights members’ ass e lis rms h asserted the frames claims he 44

Her rejoinder rejoinder on this point where a court is court a where Charter ENJEU 45 48

Urgenda Charter ].

so the so

Draft Error! Unknown document name. Error!property Unknown 55 54 53 52 51 50 policy. In particular, the allegations in whereas rights constitutional upon infringes that is difference key The another. under the class action regime in filed by groups of individuals, thus avoiding the procedural difficulties encountered by the plaintiff claims, Two 2. a Quebeceffectthat aallresidents,by onethesame singleapplicationnot person if for would have and case this in procedure appropriate the not is action class “a that concluded Morrison Justice that and children the fact that the class action wouldplace a burden onparents make to litigation decisions for their by troubled further was Morrison Justice inappropriate. be to found was change climate address rational or “factual without be to under and explanation”. old years 35 residents of class a of definition the Qu in hearings certification in given look superficial the on least at issues, substantive the on successful Though wasconstitutional rights frivolous. not breached policy climate government’s federal the that claim the that find to Morrison Justice for non stage, this at Charter exclud completely and automatically not “does political as issue an characterizing that explaining arguments these federal rejected Morrison The court. becau justiciable the not governmentInother inaction. words, of were assertingrightsclaim. theJustice plaintiffs a positive were issues competence the the that outside submitted further and government political inherently were issues the in raised issues the that submitted government federal The ofviolation therights protected Quebec bythe and Canadian aof finding a support facetheircould on allegations factual whetherthe (2)and justiciability; (1)

ll Canadians.”ll

Mathur, Mathur, et al. v. Her La La Rose v Her Majesty the Queen Ibid Ibid Ibid ENJEU, supra ENJEU, Apiain f h Panif) oln

at at at

para 141. para 117. para 71. para .” 50

He went on to conclude that the alleged violation of “ of allegedviolation the concludetothat on wentHe La Rose La 52

http://blogs2.law.columbia.edu/climate ebec, note

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Majesty the Queen in Right of Ontario 45 ENJEU ENJEU

at para 69. 69. para at and and 54

& was not an appropri an not was Mathur, - Mathur v. Ontario Mathur us - 1750 , , (filed on Oc failed on the mundane issue of procedure. Justice Morrison found Morrison Justice procedure. of issue mundane the on failed 51

- case

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d - - Draft Error! Unknown document name. Error!property Unknown 61 60 59 58 57 56 s forthwith “Ontario that order mandatory compliance. ensure Mathur to necessary as long as for claim the of matter subject the over jurisdiction reductions….” emissions GHG achieve to enforceable an implement accoun and complete “develop plan budget carbon global the of share fair Canada’s with consistent is that plan to recovery climate and Canada accurate requiring and an emissions” “prepare GHG Canada’s to Canada compelling orders mandatory rights. constitutional of breach a is so do to failure its that and System” Rose La land and relocation.” threat of rights and practices, impacts on traditional knowledge, loss of enjoyment of and connection to the Se on disproportionately fall onchildren. climateto fallmitigating changedisproportionately are said to children thecosts of and claimed are change climate with associated risks the First, ways. failure to take adequate action to prevent cli Rose La Rights Political Canada’s to contrary Peoples Indigenous are of Rights the on Declaration they reasons, other UN the among including obligations law international for, justice fundamental of principles alleged interest).” the life that asserts (or further survival child’s a to and person) the in of security (or contended development is it system, climate the of 7 s. that asserts claims Both climate change. assertThe law and claims common breaches constitutionalrights. of als are plaintiffs the of Some disease. borne insect and rise, level sea wildfires, as such change climate such as medical conditions or they live in locations that are exposed to the most obvious effects of characterist personal unique have cases these in Mathur Rose La meet the objectives oft to inadequate is that target reduction GHG a is allege plaintiffs the what of adoption and policy

16 December 1966, 1966, December 16 Ibid supra Rose, La (2007). A/61 Doc UN UNGAOR, ResGA 61/295, supra Rose, La 20 November 1989, 1577 UNTS 3 (entered into force on 2 September 1990), ratified by Canada on 13 December December 13 on Canada by ratified 1990), September 2 on force into (entered 3 UNTS 1577 1989, November 20 cond, it is alleged that indigenous youth are equalitydenied through the “risk of loss of cultural 1991).

at para 222(f). para at o members of indigenous groups whose traditional ways of life are adversely affected by by affected adversely are life of ways traditional whose groups indigenous of members o

follows form being brought by children who live around Ontario. Many of the plaintiffs the of Many Ontario. around live who children by brought being form follows seeks declaratory relief similar to similar relief declaratory seeks seeks declaraseeks

was commenced by a group of children who live in different locations across Canada. Canada. across locations different in live who children of group a by commenced was and

Mathur note note . 59

999 UNTS 171 (entered into force 999 23 on accession by UNTS (entered 1976), May 19 1976).on March 171 Canada 53 53

at para at 224. para further assert a breach of the the of breach a assert further tions that Canada has constitutional obligations to ensure Climate “Stableto aobligations constitutional Canadahas that tions

he he Paris AgreementParis

232(e). 232(e). 60

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protects a right to a stable climate s climate stable a to right a protects 61 -

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ss h cour the asks International Covenant on Civil and Civil on Covenant International guarantee of equality in s. 15. The 15. s. in equality of guarantee La Rose La miti supervisory maintain t ystem. A stable A ystem.

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Draft Error! Unknown document name. Error!property Unknown 65 64 63 62 appro Canada’s cancel to Council in Governor the allow to as so projects emitting gas greenhouse high extant to apply that statutes “environmental all of amendment requiring order an seek plaintiffs 1 between of warming global mean a with consistent emissions gas greenhouse Canada’s keep “to act must such as and Canada” of Act, 1867 Mathur 2ºC.” and between 1.5ºC and seek declarations requiring Canada to “actwith consistently keeping mean global warming to The plai racism. the legacy of the including oppression of i history colonial the of because vulnerable these are who people Wet’suwet’en that assert plaintiffs The and depend. floods people as such events weather Wet’suwet’en extreme the which upon fish and animals wild the on impactadverse an have and will droughts wildfires induced change climate that plead fishing for sockeye salmon since from 2001 refrain in to an had effort they to that help such the sustenance species for survive. on depended T people their that salmon sockeye pol overfishing, that is highlight plaintiffs the example One change. climate by damaged and altered irrevocablybe will and been has people their of lifestyle traditional and land the that explain plaintiffs development, The project energy to opposition indigenous between connection particularlyGas LinkL the Coastal tangible a is it change as part of an ongoing narrative of colonial oppression. Ind role. supporting a in than rather forefront the at concerns Sa and House). House) (Sun Yikh (Owl Yikh Misdi groups, House their and themselves of behalf on Nation First Pipeline blockades by two leaders of House groups of the Likhts’amisyu Clan of the Wet’su Lho’imggin 3. upper range pre above 1.5ºC below to warming global limit to necessary reductions GHG of level minimum the of share Ontario’s with

Ibi Ibid supra Mathur, Lho’imggin documents/2020/20200210_NA_complaint http://blogs2.law.columbia.edu/climate v. Canada Lho’imggin d . . val … of the operation of such a project in the event that the defendant will demonstrably will defendant the that event the in project a such of operation the of … val

at para 81. at para

in two main ways. First the plaintiffs advance a novel ar ntiffs in . Canada, it is contended, “has a duty to maintain the peace, order and good government

was commenced in February 2020 at the height of tensions over the Coastal Gas Link of the Paris Agreementof the Paris standard).” temperature

note at note

t l v Hr aet te Queen the Majesty Her v. al. et lution, forestry, and climate change have devastated the once abundant runs of of runs abundant once the devastated have change climate and forestry, lution, Lho’imggin Lho’imggin Indian Act Lho’imggin 54 para 8(f). 8(f). para

64 -

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and the the Draft Error! Unknown document name. Error!property Unknown 69 68 67 66 i the is (1) are: simplified,questions, somewhat key The werepoliticalelementjusticiable. a with whethercases determining in ask should court a questions certain outlined court the justiciable, was legislature post rethe that finding the In in Tennessee. intervene in boundaries could court the which to extent the concerning case a v. Madison acknowledged was a serious policy issue. The political question doctrine has its origin in in majority The intrins was change political andnotone thatcould court. beaddressed bythe climate mitigating of problem the that concluded Circuit Ninth the in nature of the question was not an insurmountable obstacle to granting a remedy, while the majority and is it that agreements international in contended found Parliament and Provincial legislatures standards have failed to implement. of The courts in implementation the requiring in orders under obligations Canada’s concerning declarations remedies as seek claims change climate constitutional The change. climate to of threat requiredthe address is believe plaintiffs the what do per to representativesa elected of democratically because of policy failure change climate Canada’s of control take courts have to seeking as characterized be can claims change climate constitutional the distance, a at Viewed court. a the whether is question threshold The cha climate constitutional courts. by decided cases important many so like the term, of sense broad the in political unquestionably are claims change climate constitutional The 1. debate of not are enduring of subject questions the form been have that these issues engage and law constitutional to Canadian in obvious answers some The rights? for environmental positive enforce provide and recognize non implicitly and rights political environmental fundamentally environmental protection? To what ext matter explicit subject without the constitutions is or courts national the enforcement of GHG reduction commitments made in the U.S. Ninth Circuit and Netherlands Supreme Court wrestled with in that questions same the of many raise claims change climate constitutional Canadian recent The IV. s.35ofthe to rights are asserted pursuant not be able to … meet its

Juliana, supra Juliana, Carr v Baker Madison v Marbury Ibid

Political Questions and and Justiciability Political Questions Julianna .

Constituti 67

, but was articulated in the modern era by the U.S. inthe Supreme modernbut was Courtin era articulated 369 US 186 (1962). US 186 369

confronted sim confronted note note ssue one assigned to another branch of government? of branch another to assigned one ssue Julianna onal Issues onal 8 , 137. US (1 5 Cranch) at 51. 51. at

Paris Paris Agreement

nge claims are of such a political nature that they cannot be decided by decided be cannot they that nature political a such of are claims nge applied the U.S. political question doctrine to avoid deciding what it it what deciding avoid to doctrine question political U.S. the applied ilar questions with The Netherlands court finding that the political the that finding court Netherlands The with questions ilar

ent are environmental rights positive rights and will courts

Charter commitment….”

. -

censu ternational agreements and mandatory mandatory and agreements ternational

s reallocation of seats in the Tennessee the in seats of reallocation s international agreements enforceable in 66

No violations of aboriginal or treaty 69 Julianna

2 aetee “judicially there are (2) - drawing of electoral of drawing - justiciable? Do Do justiciable?

and Baker v. Carr Urgenda Urgenda Urgenda M arbury ceived ceived ically . Is 68 , Draft Error! Unknown document name. Error!property Unknown 80 79 78 77 76 75 74 73 72 71 70 passed with the support of the opposition parties over the government’s objection. Protoco Kyoto the with comply to government new the Kyoto Protocol and had no intention of meeting its GHG reduction targets. In an effort to compel the support not did supporting it that publicly indicated motion 2006 in elected a Government Conservative minority passed Commons of House The ratification of the Kyoto Protocol in 2012. 2002 and ratification formal shortly followed therea by levels 1990 below 5% least other and Canada for targets reduction signatories. Cana GHG out set 1997 11, December on adopted Protocol system….” pr would that level a at atmosphere The backdrop. Canada signed the Friends of the Earth issues. justiciability uneasiness charged politically ran with becategorized casesas onwhat and aground may broadly to prevent Canada from in the embodied as Protocol Kyoto the under commitments Canada’s with compliance enforce to effort be to appear that case, first issues The with political. engage to reticence courts’ Canadian reflect obligations change climate international Canada’s enforce to seeking proceedings review judicial two in Decisions recently gerrymandering. partisan the termination of international treaties discreti nonjudicial for Baker v. Carr clearly kind a of determination policy initial an “without it”? resolving for standards manageable and discoverable

Environment and Environment Clima KPIA, supra KPIA, supra UNFCCC, Canada v Turp Act Implementation Protocol Kyoto Council) in (Governor Canada v Earth the of Friends Cause, v Common Rucho US, v Nixon Carter v Goldwater Ibid Ibid Agreements and Instruments” (January 2020) online online 2020) (January Instruments” and 10/united

Kyoto Protocol Implementation Act 79 -

nation 506 US 224 (1993). US 224 506 note note

, the U.S. political question hasdoctrine been invoked to avoid court intervention in The , 2012 FC 893, [2014] 1 FCR 439 [ 1 FCR FC 439 893, [2014] 2012 , committed Canada to the goal of stabilizing “greenhouse gas concentrations in the “greenhouse concentrations the stabilizing in gas Canadathegoalcommitted of to

note note 75 - da da and other industrialized countries agreed to reduce their GHG emissions to at framewo , 444 US 996 (1979). US 996 444 , . UNFCCC

and 13 te Change Canada, “Compendium of Canada’s Engagement in International Environmental , art art , 2.

139 S CT 2484 1392484 S CT withdrawing from the Kyoto Protocol. Both cases show Canadian courts’ Turp rk Friends of the Earth v. Canada (Govern Canada v. Earth the of Friends - convention

, however, did not set any firm GHG reduction targets. The Kyoto The targets. reduction GHG firm any set not did however, ,

UNFCCC cannot be understood without an expl , SC 2007, c 30 [ 30 c SC , 2007, 74

event dangerous anthropogenic interference with the climate the with interference anthropogenic dangerous event (2019). - climate 72

, the conduct of an impeachment by the Senate at the Earth Summit in Rio de Janeiro on June 12, 1992.

(“

Turp KPIA - change KPIA - , 2008 FC 1183, [2009] 3 FCR 201 [ 3 FCR[2009] 201 2008FC , 1183,

14 ].

”).

]. - - paris

The second case, - l, a private member’s bill, the bill, member’s private a l, agreement.pdf>. 70

n () s t mosbe o decide to impossible it is (3) and - affairs/compendium/2020/batch anation of the unusual political or in Council), in or

Turp Turp v. Canada, Friends of the Earth the of Friends 80 75

on”? Among other

involved an involved 73 KPIA , and most fter. fter. The 71 77

- sought Since , was was , ]. ]. 78

Draft Error! Unknown document name. Error!property Unknown 87 86 85 84 83 82 81 of branch executive the breachwas asserted in of under breach a where exclusively cases in justiciable only falls is power treaty, a from government.” withdraw or conclude to the the of adoption Parliament’s of issues again came before the Federa the from withdrawal Canada’s Following agreedwith the result substantiallythe “for reasons he gave.” App of Court Federal the by upheld commitments….” Kyoto Canada’s to response government’s the to pursuant to able be might court the while that concluded has deliberately and transparently declined to do so for reasons of public he policy.” where Plan compliant a prepare to Minister the order to able be to Court the for incongruous reasoned,“ijudicialreview,J. Barnes subjectto be not couldPlanChange Climate the criteria that could be applied to determine whether compliance was achieved. Since the content of review.” judicial for matter the under Kyoto Protocol GHG targets. reduction held Thecourt that the content Change Climate of a Plan P Change Climate a forth put to Government the compelling order an and obligations its of breach in was Government the that declaration a sought applicant in application review judicial a of subject the was obligations Protocol The government’s failure to propose a Climate Change Plan that would see Canada meet its Kyot thatPlan was destined toleave KyotoProtocol GHG its reduction short Canada far of target. it meet would Canada things, the

Ibid Parliament Parliament repealed the Turp, supra supra Turp, Ibid Ibid supra Earth, the of Friends Friends of the Earth v Canada (Environment) Canada v Earth the of Friends Kyoto Protocol Kyoto paras 248, 249, 259. 259. 249, 248, paras also, See Court. Federal the by was denied: ;

at para 46. para at 36. para at Black Black v Canada (Prime Minister) KPIA KPIA R (Miller) v Secretary of State of Exiting the European Union, European the Exiting of State of Secretary v (Miller) R note note 86 Friends of the Earth v Canada (Minister of the Environment) the of (Minister Canada Earthv the of Friends

required numerous “policynumerous required 76

The court went on to observe that the question of the exercise of this prerogative this of exercise the of question the observethat to on went courtThe required required that the government put forward a Climate Change Plan setting out how KPIA

at para 18. at para

without the permission of Parliament. permission the without

KPIA s Kyoto Protocol obligations. The government issued a Climate Change Change Climate a issued government The obligations. Protocol Kyoto s , “the Court has no role to play reviewing the reasonableness of the the of reasonableness the reviewing play to role no has Court “the , Turp

note

after after the of commencement 81

. 87

Justice Barnes further explained that there were no objective legal objective no were there that explained further Barnes Justice

at para 33. 33. at para KPIA , , (2001) 199 DLR (4th) 228 (ONCA), 105 ACWS (3d) 239 at para 46 [ l Court in eal in a three sentence judgment that indicated that the court court the that indicated that judgment sentence three a in eal , that the executive did not have the right to withdraw from withdraw to right the have not did executive the that , , 2009 FCA 2009 ,

- yt Protocol Kyoto laden considerations which are not the proper subject subject proper the not are considerationswhich laden Turp Turp v. Canada. -

require a Climate Change Plan to be prepared be to Plan Change Climate a require Turp, Turp, supra -

297. Leave to appeal to the Supreme Court of Canada of Court Supreme the to appeal to Leave 297.

Charter 85

, the justiciability of climate change change climate of justiciability the ,

The court affirmed that the “decisthe that affirmedcourt The note 84 lan that would see Canada meet its its meet Canada see would that lan The plaintiff claimed that by reason

83 right

76 [2017]

, [2009] SCCA [2009] 497. ,

but before the decision was utc Bre’ eiin was decision Barnes’ Justice s is asserted and no and asserted is s

1 AII ER 593, [2018] AC 61 at 61 AC [2018] 593, ER AII 1 Friends of the Earth. Earth. the of Friends 82

Justice Barnes t would be would t Charter rendered rendered Black

The ion o ] .

Draft Error! Unknown document name. Error!property Unknown 95 94 93 92 91 90 89 88 to warrant the intervention of the judicial branch.” question for the court is whether the question it is asked to decide “has a sufficient legal component within the constitutional framework of our democratic for (B.C.) Plan Assistance in decision earlier its to reference by criteria two these explained court The wheresituations may decline a a todecide court case: political. inherently were they that grounds the on to answer the referenc of Quebec that sometimes lead courts to decline to hear certain questions or cases. Despite rejecting the U.S. political question doctrine, Canada doe a right thedecide court to has the an case. obligation of breach a as framed is claim a where that concluded she where reasons concurring war nuclear of threat increased an to Canada over testing missile cruise link to impossible be would it facts the on because appeal the dismiss to on went court The justiciable. was issue the that concluded court the and rejected was doctrine question person”. the of security and liberty “life, to right 7 s. the contravened it that basis the on territory Canadian on U.S. the by testing missile cruise allowing from government the in a heard Canada of Court Supreme raised first was questions political of that it is meant that Canada does not follow the U.S. political question doctrine. The justiciability cases in observed is what Despite

D Geoffrey D Cowper Geoffrey & Lorne Sossin, “ Ibid Ibid Quebec of Secession re Reference Sossin, & Cowper Ibid Queen The v Dismantle Operation See Reference re Canada Assistance Plan Assistance Canada re Reference Assi Sossin]. & [Cowper 345 at 343 LJ Affairs), Northern 88 United States v Burns v States United at para 26. para at 67. paras 38, at , Canada is often said to not have a political question doctrine. question political a have not to said often is Canada , stance Plan stance i) f h Cut ol nt ie n nwr ht is ihn t ae o eprie the expertise: of area its within lies that answer an give interpretation oflaw. not could Court the if (ii) constitutional framework ofour democraticof government form or t take would so do to if (i)

the Supreme Court of Canada was faced with an argument that the court should decline

]. supr

[1999] 2 SCR 203, 172 DLR (4th) 1. (4th) DLR 172 SCR 2 203, [1999] a e questions concerning the principles applicable to the separation of Quebec

note

where it held that “the Court’s primary concern is to retain its proper role proper its retain to is concern primary Court’s “the that held it where , 2001 SCC 7, [2001] 1 SCR 283. See also, also, See 283. SCR 1 [2001] 7, SCC 2001 , 88 94

at 345. 345. at

red o te Earth the of Friends , [1985] 1 SCR 441, 18 DLR (4th) 481 at para 4 4 para [ at 481 DLR (4th) SCR18 1 441, [1985] ,

[1998] 2 SCR 217, 161 DLR (4th) 385 385 161 (4th) DLR SCR 2 217, [1998]

Does Does Canada Need a Political Questions Doctrine?” (2002) 16 Osgoode Hall ,

challenge by an organization seeking to prevent the Canadian Canadian the prevent to seeking organization an by challenge he Court beyond its own assessment of its proper role in the in role proper its of assessment own its beyond Court he [1991] 2 SCR 525, 83 DLR (4th) 297 at para 33 [ 33 para at 297 (4th) DLR 83 525, SCR 2 [1991]

16 Charter 95

- 91

93 ,

Lorne Sossin has suggested that the Supreme

Turp The court explained that there were two were there that explained court The - r in era m of government” and explained that the . The majority agreed with Wilson J.’s Wilson with agreed majority The . ad oe te politically other some and , Corbiere v Canada (Minister of Indian and Indian of (Minister Canada v Corbiere [Reference re Secession of Quebec]. of Secession re [Reference prto Dismantle Operation s have principles of justiciability 92 89

Operation Dismantle Operation In This is true to the extentthe to true is This

Reference re Secession Reference re Canada Canada re Reference 90

Reference re Canada re Reference The U.S. politi U.S. The

where the the where - sensitive sensitive ]. Charter

cal

Draft Error! Unknown document name. Error!property Unknown 99 98 97 96 a of violation a if relief declaratory grant to jurisdiction have certainly would court A decide. to court the for powers of separation the offend not would and expertise of area discriminates against youngpeople contrary tos.15are legal that questions ar change climate on action sufficient take to failure whether even or person the of security and life of breach a as framed was testing Dismantle. Operation missile cruise that way same the in rights p though the claims, change on climate constitutional arguments The heard have could court the prepared, was ofthe contentjusticiability of Change theClimate Plan. Plan Change Climate a after prepar be Plan Change Climate a that ofno intention preparinga complaint Change Climate the Plan, court shouldhave ordered simply dicta Plan Change Climate any of proposedcontent by the Minister would the have been justiciable. whether Rather than opine is question trickier The policy. government does a that fact The government Minister chose not to comply with an actexpertise. of Parliament “for reasons of public policy” its beyond The or role constitutional its outside stray to Plan. court the require Change Climate a prepare the to Minister the requiring government’s failure to propose a Climate Change Plan order as required by the mandatory a grant with the Earth of go The applicant in the U.S. politicaldoctrine question has Canada’s importedjusticiability. been into of law adequate….” fo requirement the whether of question for is standard policy manageable housing or whether discoverable general judicially in no assessing is “there that and broad” and “diffuse the engage to component legal sufficient decision “no was there that housing” held Appeal inadequateof Court Ontario and the homelessness address to strategies const effective implement to failure Tanudjaja v. Canada (Attorney General) exampAn question. legal the from severed be cannot that component extralegal significant a with question a presents case a where is question the answer to decline should court a where scenario only The answer. should court first the of either to Ifanswer the separated? be extralegal elements and legal the Can aspect? extralegal significant a have question legal the Does question? legal in has, Court

Ibid Ibid Ibid General) (Attorney Canada v Tanudjaja Sossin, Lorne KPIA

vernment policy; they sought a direction requiring compliance a requiring sought statute. vernment direction they witha policy;

ituted a breach of the s. 7 rights to life, liberty, and ofthe security tolife, person. s.7rights liberty, aituted the breach of not transform the simple legal question of compliance with a statute into an evaluation of of evaluation an into statute a with compliance of question legal simple the transform not in the absence Climate of a Change Plan and based on a conclusion that the government had at paras 32 paras 32 at 27. para at appears to be wrongly decided in that in the face of willful and uncontested non - KPIA making capacity of the courts.” the of capacity making

ae o e nce b Parliam by enacted be to came

The Law of Justiciability in Canada, Canada, in Justiciability of Law The effect, set out a three a out set effect, , Barnes J. and the Court of Appeal declined to gra

Friends Friends of the Earth, 33.

Whether government inaction on climate change violates the s. 7 rights to rights 7 s. the violates change climate on inaction government Whether

, 2014 ONCA 852, 123 OR(3d) 161 161 OR(3d) 123 ONCA 852, 2014 , le of a case found to be non be to found case a of le - part approach to political questions. political to approach part unlike the claimants in ed as required by the by required as ed r a “judicially discoverable or manageable standard” from from standard” manageable or discoverable “judicially a r

98 where the applicant claimed that “Canada’s and Ontario’s

n ws srihfrad ea qeto ta dd not did that question legal straightforward a was ent The majority went o went majority The 2 nd -

17 ed, (Thomson Reuters: Toronto, 2012) 2012) Toronto, Reuters: ed, (Thomson

ltcl ae rmd s rahs of breaches as framed are olitical,

KPIA. KPIA. Tanudjaja 99 - justiciable on political grounds is grounds political on justiciable n to observe that the claims were claims the that observe to n nt declaratory relief and failed to

at para 50 [ 50 para at If the matter was still disputed disputed still was matter the If hs at omn rie the raises comment last This

two questions is “no”, then a then “no”, is questions two , did not seek an evaluation

96 on this question in KPIA

Tanudjaja] Does the case pose a pose case the Does e thecourt’s within 97

Charter regardless of how at 195.

Charter The majority of Friends ofthe . -

compliance

right was right

Charter Charter . in 7 s. obiter Draft Error! Unknown document name. Error!property Unknown 104 103 102 101 100 Agreement the that concede to have would claims change climate constitutional the in plaintiffs The roles. legislative and executive the into intrusion an of much too be would that because done be must reduce GHG by emissions 25 in Court Supreme Netherlands The by Urgenda followed that is claims, change climate constitutional An alternative approach to the question of remedy, one that a matter isindisputably it reserved todecide. tothe executive Kyoto Protocol. Regardless of whether exiting the international the exiting from executive the Canada’s prevent effectively may targets realize the of constitutionalization The to treaties. international how determining execut in role commitments. traditional executive’s the con effect in would finding the implement that policies by protected be only can asserted achieve governme the compel to seek indirectly or directly claims the implement to fail infringe Ontario and C of governments the of efforts the that assert instead claims change climate constitutional typical not through domestic legislation, ho justiciable.is not The conduct of foreign affairs and, in particular, the decision of the executive to enter into a treaty l either by unilaterally implemented be cannotgovernment. measures adequate mitigation that clear is change it when pointless climate seems government of level other the or one of of respect levels between in shared government is environment the for government. The constitutional climate change claims responsibility as currently framed target either the federal Constitutional remedy. found.

Deegan v Canada (Attorney General) (Attorney Canada v Deegan Brown v Alberta v Brown See, for example, example, for See, This observation may be tested in the appeals of the Provincial carbon tax references which raise, am raise, which references tax carbon Provincial the of appeals the in tested be may observation This Hupacasath First Nation v Canada (Foreign Affairs and International Trade Cana Trade International and Affairs (Foreign Canada v Nation First Hupacasath SCR 765 at para at 765 SCR Everett P. Ex. Affairs, p at 737 (4th) policies. change climate implement to unilaterally power POGG the of branch emergency the under authority has government federal the whether of question the things, [ 46 para at SCR 1 44 [2010] 3, 100 ive’s ability to conduct foreign affairs and, particular,in through exercising the right to exit Paris Agreement Agreement Paris . The Netherlands Supreme Court in Court Supreme Netherlands The .

ehp temr eig que vexing more the Perhaps GHG reduction commitments are not enforceable in a domestic courts. Instead, the Instead, courts. domestic a in enforceable not are commitments reduction GHG Charter 101 r poica gvrmn ad o bt lvl o gvrmn. dcaain in declaration A government. of levels both not and government provincial a or 104

ara 68; 68; ara , 1999 ABCA 256, 177 DLR (4th) 349 at para 16; atpara 349 (4th) DLR 177 256, ABCA 1999 ,

102 35 Council) in General (Governor Canada v. Nation First Cree Mikisew Constitutionalizing an international agreement runs counter to protecting the protecting to counter runs agreement international an Constitutionalizing

discussing the reluctance of courts to intervene in the legislative process. the legislative in intervene to courts of reluctance the discussing A challenges that target a limit on an individual’s rights or freedoms. The The freedoms. or rights individual’s an on limit a target that challenges Charter Paris AgreementParis , [1989] 1 All E.R. 655 at 690. 655 All E.R. 1 [1989] , Black, supra supra Black, Charter agt. h panif se a idn ta te osiuinl rights constitutional the that finding a seek plaintiffs The targets. stitutionalize an international agreement and usurp Parliament’s and and Parliament’s usurp and agreement international an stitutionalize

Khadr II Khadr

rights because they are insufficient to prevent climate change and change climate prevent to insufficient are they because rights

claim challenging the implementation ofinternational agreements wever, is justiciable. note note , 2019 FC 960, 308 ACWS (3d) 214 214 308 (3d) FCACWS 960, 2019 , % by the end of 2020 but declined to prescribe how that was to ]. 86

. The remedies sought in the constitutional climate changeclimateconstitutional in the sought remedies The . at para 52; 52; para at stion is whether a declaration would be a constructive a be would declaration a whether is stion - Urgenda

R v Secretary of State for Foreign and Commonwealth and Foreign for State of Secretary v R - Paris Paris Agreement

103

But But the constitutional climate changes are issued a declaration that The NetherlandsThe that declaration a issued ai Agreement Paris Canada (Prime Minister) v Khadr v Minister) (Prime Canada nt to implement policies sufficient to to sufficient policies implement to nt is is not clearly sought on the face of the

Paris Agreement Paris Paris Agreement as it exited the exited it as Agreement Paris at p at

ara320. is a desirable outcome or not; da)

or its GHG reduction reduction GHG its or , 2015 FCA 4, 379 DLR 379 4, FCA 2015 , , 2018 SCC 40, [2018] 2 [2018] 40, SCC 2018 ,

targets. Such a a Such targets. , 2010 SCC 2010 , ong other ong vl of evel anada Paris

Draft Error! Unknown document name. Error!property Unknown 108 107 106 105 ofthe the drafters protection … [is] a fundamental value in Canadian society….” in held Canada of Court Supreme The 2. actionsolve the even entire social does ifit problem. not underlying in issue should remedy a justified, not is and established is could redress not the injury causedremedy bythegovernmentaction. In other words, a if the that basis the on remedy a deny to court a for incongruous be would it then breach, underlying harm. rights the and action v. Canada government challenged the infringement. between As will be explained below in the discussion of connection” the interpretation of s. 7, in causal sufficient “a in issue a in claimantThe A causation. of one as framed U.S. be would law Canadianthe in is it that way same the in justiciability of law Canadian the of feature gove the order to power the had it that finding approach opposite the took but remedy, its and authority its of limits the recognized Court Supreme Netherlands The problem. the redress not could disposal didno it because concluded that Ninth Circuit because isamulti it change climate global of problem the solve to unable be would court the of order Any harm. the Juliana the separates that one is issue remedial final The social and economicrig the which and rights legal related toprocedural they discussed below, with the to exercise its functions and to consider what actions to take in executive “the to it left but 7 s. violated had officials Canadian of conduct the that declaration a in the the of 7 s. under standards the two the in approach Canada’s of Court Supreme the of the breach; the remedy to meet to standards accepted government by Canada in the the require to standard manageable judicially in unlike Furthermore, powers. of separation the offending the infringe inactions or actions change the governmentclimate that finds court ifthe that be would argument

Ontario v Canadian PacificLtd v Canadian Ontario (Attorney General) Canada v Bedford II Khadr Khadr v (Justice) Canada Products Ltd Products Hydro v R

Geneva Conventions i. Interpreting the Section 7of . The majority in rnment to do its part to mitigate climate change. The question of redressability is not a not is redressability of question The change. climate mitigate to part its do to rnment Charter

, supra it was held that the gover - Charter Quebec , 2004 SCC 38, [2004] 2 SCR 74 at para 226. para at SCR 2 74 [2004] SCC 38, 2004 , Purposive Interpretation

note note .” 107 Charter 106 , [1997] 3 SCR 213, 151 DLR (4th) 32 at para 127 and and 127 para at 32 (4th) DLR 151 213, SCR 3 [1997] ,

- 99

national problem that requires coordinated international action to solve. The The requires coordinated internationalaction tosolve. problemthat national Where a causal connection is proved for the purpose of establishing a

rights to life or security of the person, th person, the of security or life to rights The The value of

at para 47. paraat 47.

hts which have bythehts generally foundbe been notto protected , 2008SCC , 2 Juliana , the court further held that, “[l]egislators must have considerable room considerable room have “[l]egislators must held that, further , thecourt . 105 , [1995] 2 SCR 1031, 125 DLR 125 SCR[1995] , 2 1031,

Charter The Supreme Court of Canada then proceeded in

was unwilling to grant a remedy that was incapable o , 2013 SCC 72, [2013] 3 SCR 1101 at para 76 [ 76 at para SCR 3 1101 [2013] SCC 72, 2013 , 8, [2008] p SCR at 2 125 [2008] 8, Khadr I Khadr II & nment action need onlyhave toorexacerbated contributed an Paris Paris Agreement Charter

were consistent with Canada’s international commitments commitments international Canada’s with consistent were

nai v Cnda Pcfc Ltd. Pacific Canadian v. Ontario - t have power over other countries any remedy at its its countries remedyat any other over power t have

19 as as precedents may be limited because, as will be Urgenda

. Such an approach resembles a combination

(4th) 385 [ 385 (4th) Khadr ara 25 ara

decision from the majority decision in in decision majority the from decision

respect of the impugned government government impugned the of respect [ respect of Mr. Khadr, in conformity Tanudjaja 108

Khadr I Khadr en a declaration can issue without without issue can declaration a en cases. In cases. Canadian Pacific Canadian

Consistent Consistent with the intention of British Columbia v Canadian Forest Forest Canadian v Columbia British

] Charter . Charter

Khadr I Khadr and obvious an is there Bedford

ht “envi that

case must establish establish must case

protects and not to andprotects not ] at para 55. 55. paraalso, at See ] ]. Khadr Khadr II

it was held that held was it Charter f redressing Charter ronmental ronmental

Bedford Charter to grant

breach .

Draft Error! Unknown document name. Error!property Unknown 117 116 115 114 113 112 111 110 109 change person the of security and life of conceptions as 11(i) s. like rights legal narrow not are justice.” “fundamental and“unreasonable” open and thattheformer rights are more be likely to defined bytheir origins. in issue in sentencing “confer of a particular, constant time protection” whereas and others “refer commission to evolving, open of time the between changed has Charter historical origins, is noteworthy in but should not interestbe overstat its with together interpretation, purposive to commitment renewed court’s pre the from to be drawn from the context in which the right is to be found, including other parts of th implications the from expressed, is right the which in language the from obtained be “can right a approachto correctthe is interpretation purposive that emphasized and purpose” over generosity“prioritizing Charter a of interpretation generous a that emphasized of has at times endorsed a “full and generous interpretation” or a “liberal and generous interpretation” interpreting to approach Canada’s of Court Supreme The l to rights 7 s. the security of the person? within exists rights environmental that find of to Court leap Supreme that the take Canada Would change. climate mitigate to measures mandates or environment environmental hinder not should lon a constitution is the protection that and environment the of importance the flexible and legislative ambitious approaches protection.” toenvironmental regul environmental of field the in manoeuvre to

Ibid Poulin arethere signsand Canada be in may more courts originalism that to there efforts rehabilitate been have Recently, Ibid Ibid See See supra Pacific, Canadian Charter n osiuinl nepeain eeal, e: . dm, Cnda Cntttoa Interpretation” Constitutional “Canadian Adams, E. see: generally, interpretation constitutional On also Asher Honickman, “The Living Fiction: Reclaiming Originalism for Canada” for Originalism Reclaiming Fiction: Living “The Honickman, Asher also See 505. Rev. L. UBC 50 (2017) Jurisprudence” Constitutional Canadian in Reasoning “Originalist Oliphant, Rej Canada of Court Supreme the years. many in been have they than argument historical to open 105. Hutchinson, - ended standards given by Justi by given standards ended . Poulin ssre & Reference 193

at para 70. para at 57. para at

, rights, like therights, like s.11(i) thebenefit ofthewhere rightto lesser punishment punishment the right. supra

, rights. Charter - supra Charter

112 note Interpretation, Statutory Fundamentalsof The

note note

111 12 eety utc atn in Martin Justice Recently, g way from finding that the that finding from way g

rights. at

history of the right and from the legislative history of the of history legislative the from and right the of history 12

Perio para 70. para 70.

note

at para 55. 55. at para 195.1(1)(c) of the Criminal Code,Criminal of the 195.1(1)(c) 113 107 ial, h cut a as rie i is mus fr eeoiy and generosity for impulse its in reined also has court the dically,

She went on to endorse Professor Hogg’s view that the purpose ofpurpose the that view endorseHogg’sProfessor to on went She at para at para ected Originalism?” (2016) 44:1 Queens LJ 107; Leonid Sirota & Benjamin Benjamin & Sirota Leonid 107; LJ Queens 44:1 (2016) Originalism?” ected

c 59. 59. e Martin include rig include Martin e

117

The rights to life and security of the person in s.7 in person the of security and life to rights The 20 R. v. Poulin v. R. ed. Charter Charter ation, and s. 7 must not be employed to hinder hinder to employed be not must 7 s. and ation,

- 115

( [1990] 1 SCR 1123, 4 WWR 481 [1990] paras1 68, at 481 WWR SCR [1990] 4 1123, LexisNexis Canada, Toronto: 2018) 129. 2018) Toronto: Canada, LexisNexis Justice Martin went on to explain that some

provides for the protection of a healthy healthy a of protection the for provides right may overshoot the purpose of the the of purpose the overshoot may right See Benjamin Oliphant & Leonid Sirota, “Has Sirota, Leonid & Oliphant Benjamin See hts that use the words “reasonable” or or “reasonable” words the use that hts Charter

explained that courts should not b not should courts that explained

rights is in flux. in is rights 116

(2015) 43 Advoc (2015) 43

Examples ofevolving, 109

The recognition of - Charter ended standards” 110 R. v. Poulin v. R.

e Q 329. 329. Q The court The .”

Charter 114 ife and ife

n C, in The

e , , Draft Error! Unknown document name. Error!property Unknown 124 123 122 121 120 119 118 growth.” its stunt not do Committee, Joint Special the of must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence “the if the that explained interpreting in weight” “minimal given expressed as views framers the that they pointed to a more robust concept of substantive fairness. The Supreme Court of Canada held meant procedural fairness in the same way as the words “natural justice” are understood or whether Vehicle Act the in words of interpretation The environment orotherwise,were notprotectedbythe Charter committee. the of 31 working s. healthy and in safe and conditions” environment healthy and clean a of goals “the to commitment a rights, economic and social of protection corresponding environment including no be to was there if rights property raised be legislation. potentially could rights property that Charter environmental rights arose in the context of the debate over including property rights in s. 7 of the the Charter drafting for responsible Committee Commons of House and Senate Special the by rejected appear that rights environmental on predicated nowhere inthe are claims change climate constitutional The Justice Martin’s examples. over time. At the

Ibid Ibid Ibid Act Vehicle BCMotor Re Dodek,ed., A. generally, see Joint theCommittee, Special On Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada of Constitution the on Commons of House the of and Senate the of Committee Joint Special Special Canada of Constitution the on Commons of House the of and Senate the of Committee Joint Special (January 30, 1981) at 8. at 1981) 30, (January at 554. Rev L 543 Alta 52 Record” P of Exclusion “The Binnion, Lorelle & Newman Dwight see furtherdiscussion, For Nystrom). Lorne (per 21 and Robinson) Svend (per 19 at 1981) 23, (January Lapierre). (per 16 at Laurier 1981) 23, (January 2018). Toronto: Press, Toronto 1980 Constitution, the on rmr’ nesadn o the of understanding framers’

at p at 52. para at ii. . One oftheproperty 7of offeredfor rationales rights ins. the notincluding shared an understanding that environmental rights, whether framed as a right to a healthy Joint Committee of the Senate and of the House of Commons on the Constitution of Canada of Constitution the on Commons of House the of and Senate the of Committee Joint

ara53. “pca Jit Committee”). Joint (“Special 119 121 122

where theissue was whether “fundamental thewords justice” NDP members of the Special Joint Committee also raised the inequity of protecting The Text and Origins ofSection7 The TextOrigins and

text of the text of the The committee debates over environmental rights show that the framers of the of framers the that show rights environmental over debates committee The

same time, life and security of the person are not purely normative concepts like Charter al rights, in s. 7 of the of 7 s. in rights, al

, [1985] 2 SCR 486, 24 DLR (4th) 536 [ (4th) DLR 536 24 2 SCR 486, [1985] - 81, and the Making of the Canadian C Canadian the of Making the and 81, Charter

Charter

is to have the possibility of growth and adjustment over time, care care time, over adjustment and growth of possibility the have to is Charter

. In toahealthy commitment fact, anexplicit environment was in the the in Charter bt h aedet a rjce b te aoiy f th of majority the by rejected was amendment the but , . The use of the framers’ views arose in arose views framers’ the of use The . 118 Minutes of the Special Joint Committee Joint Special the of Minutes

Charter a be fud o e f ite infcne n the in significance little of be to found been has -

Charter oet ihs rm the from Rights roperty h qeto o cntttoa protection constitutional of question The 21

s n btce o niomna protection environmental to obstacle an as Charter . 120 The Charter Debates: The Special Joint Committee Committee Joint The The Debates: Special Charter . 123

Re BC Motor Vehicle Act Vehicle Re BCMotor Svend Robinson later moved to includeto moved later Robinson Svend

harter of Rights and Freedoms and Rights of harter 124 ae J, rtn fr h majority, the for writing J., Lamer .

Re B.C. Motor Vehicle Act Vehicle Motor B.C. Re Charter : Correcting the Historical Historical the Correcting :

in s. 7 ofin s.7 the ].

Re B.C. Motor B.C. Re should only be be only should , (University of of (University , Charter , Issue No 49 No Issue , 44 No Issue , 44 No Issue , Charter l eaves

was was for e

Draft Error! Unknown document name. Error!property Unknown 129 128 127 126 125 the of 2(d) s. of to interpretation approach different a took Wilson, Justice and himself for writing Dickson, Justice Chief include a strike.” rightto any against strongly whole the speaks rights, property and strike.” to right a of implication economic to inattention conspicuous with the of preoccupation overwhelming then He reasoned that “[t]he omission of similar provisions in the strike. to right the protecting provisions express contained countries developed other some protecte be to strike to right the a for right resolution to strike was never proposed.a The Special Joint that Committee, he concluded, did not and intend for adopted not but proposed was collectively bargain to right a include to on went He Committee. Joint Special the by discussed were strike Charter wh upon a in J. McIntyre in Canada, decision of concurring Court Supreme the to came first strike to right the and bargaining bargaining and the right to strike. When collective protects 2(d) s. by guaranteed association of freedom that claim the to analogous more A claim that an existing non necessitateselaborat further a providing as read be may 15 s. of text the as 7 s. of context the in environment healthy a to right claimed a to applicable be groups. those of protection for allow to flexibility” the accordingly that explained and today” such as obse in majority the for writing Wilson, Justice text. also prohibits discrimination on grounds that are analogous to the grounds expressly set out in the mental or age sex, religion, colour, origin, text. the of reach the extend to interpretation purposive used has Court one Supreme is equality of guarantee 15 s. the to approach grounds analogous The is anydifferent that than history explains ofwords themeaning the in the from rights of omission the explains that history whether of question the unanswered

Ibid Ibid Ibid Columbia British of Society Law v Andrews Reference Re Public Service Employee Relations Act Act Relations Employee Service Public Re Reference and that the the that and SCR 1 30 [1988] Act]. Relations Employee Service Public 125 rved and that“the insular discrete oftomorrow minorities will include groups recognized not .

at para 180. para at 52. at

McIntyre McIntyre . Justice McIntyre explained that both the right to bargain collectively and the right to right the and collectively bargain to right the both that explained McIntyre Justice . Section 15 expressly prohibits discrimination on the basis of “race, national or ethnic or national “race, of basis the on discrimination prohibits expressly 15 Section at he considered to be the significance of the obvious omission of these rights from the the from rights these of omission obvious the of significance the be to considered he at Charter

Charter J.

cited the Special Joint Committee

concluding , it cannot … support an interpretation of freedom of association which could could which association of freedom of interpretation an support … cannot it , , including s. 7, creates no further right.” further no creates 7, s. including ,

Reference Re Public Service Employee Relations Act (Alta.) Act Relations Employee Service Public Re Reference Charter 129

ion bycourts. at 148

128 d by the the by d

right like s. 7 protects a right to a healthy environment is perhaps Charter

that “no right of abortion can be fou be abortion can of right “no that -

xasie it f rhbtd rud o dsrmnto that discrimination of grounds prohibited of list exhaustive McIntyre J. concluded tha concluded McIntyreJ. Charter

, [1989] 1 SCR 143, 56 DLR (4th) 1 1 [ (4th) DLR 56 143, SCR 1 [1989] ,

the the question of the constitutional protection of collective Charter

n isnig esn in reasons dissenting in or physical disability.” The court has found that s. 15 s. that found has court The disability.” physical or

(at (at 143) - is with individual, political, and democratic rights democratic and political, individual, with is

(Alta.) 22 . McIntyre J. observed that the constitutions of constitutions the that observed J. McIntyre .

- Andrews v. Law Society of British Columbia British of Society Law v. Andrews 126

Charter and and , [1987] 1 SCR 313, 38 DLR (4th) 161 161 (4th) DLR 38 313, SCR 1 [1987] ,

The interp The used used similar logic dissenting in

must be “interpreted with sufficient sufficient with “interpreted be must t “if s. 2(d) is read in the context ofcontext the in read is 2(d) s. “if t Charter nd in Canadian law, custom or tradition, or law, custom Canadian in nd retive approach to s. 15 may not may 15 s. to approach retive eeec R Pbi Service Public Re Reference , taken with the fact t Charter Andrews note that a resolution to resolution a that note

example of how the the how of example ]. . Charter

R. R. v. Morgentaler 127 [

Reference Re Reference beyond its beyond , focused , Charter hat hat the

the the , ,

Draft Error! Unknown document name. Error!property Unknown 136 135 134 133 132 131 130 court’s The of “quality called be may what to threats serious from protection of measure a include person the distress. psychological intolerable caused in conclusion restrictions the because, person things, the of security other to right among 7 s. the violate to held were respectively abortion and psychological and in findings echoesearlier physical in results insurance health suffering that meets this threshold requir on prohibition the that demonstrates of timely health care can result in death, s. 7 protection of life itself is engaged. The evidence here psychological effects delayedof care.medical Justices McLachlin and Major hel government the medical by care and included complaints regarding the availability care of hip and knee operations and the health of 7 delivery s. the with interfered inadequate with combined insurance care health plurality decision in to life and security of the person may have a broader ambi the of security and life to person could be found to be a breach threat of s. 7 of the environmental serious a that suggests jurisprudence Existing recognition inthe ofsuch rights the from rights the environmental from strike to right express an recognition of a right to strike in s. 2(d) of the strike. to right the protect not did association of their collectively Federation of Labour Saskatchewanv. withdraw to freedom (Alta.) Act Relations their of protection services concomitant requires process bargaining collective the in employees of interests associational the of for protection constitutional source persuasive provision and the relevant “a of as interpretation described he which commitments law international association to find its meaning. His wide purp the to looked he omission, the for explanation historical (Alta.) Act Relations Employee

R v Morgentaler v R General) (Attorney BritishColumbia v Rodriquez Ibid General) (Attorney Quebec v. Chaoulli Ibi (Alta), Act supra Relations Service Employee Public Re Reference Saskatchewan Federation of Labour v. Saskatchewan v. Labour of Federation Saskatchewan Federation of Labour] of Federation d

at para 1 para at 97. para at iii. ….”

131 23. Chaoulli

Section 7 Section

, [1988] 1 SCR 30, 44 DLR (4th) 385. (4th) DLR 44 SCR 1 30, [1988] , iko CJ’ dsetn raos in reasons dissenting C.J.’s Dickson Chaoulli v. Quebec (Attorney General)

are the foundation for Justice Abella’s majority decision in decision majority Abella’s Justice for foundation the are .

ca right to life. to right

n only be understood to mean that the s. 7 rights to life and security of of security and life to rights 7 s. the that mean to understood be only n Rodriguez

. Rather than focus on the omission of express language and the and language express of omission the on focus than Rather . o the of s Charter Charter , 2005 SCC 35, [2005] 1 SCR 791 at para 124 [ 124 para at SCR 1 791 [2005] SCC 35, 2005 , 133 135 Charte

which which reversed the court’s earlier conclus and The allegation in allegation The - ement of seriousness.” .

ranging analysis looked to, among other things, Canada’s Charter s o a isronal osal t te eventual the to obstacle insurmountable an not is Morgentaler , [1993] 3 SCR 519, 107 DLR (4th) 342. (4th) DLR 107 3 [1993] , 519, SCR r

- Charter

ugss ht h cncos msin f express of omission conscious the that suggests 23 , 2015 SCC 4, [2015] 1 SCR 245 at para 75 [ 75 para at 245 SCR 1 [2015] 4, SCC 2015 ,

.”

132 Charter - 130

h urm or f aaas eventual Canada’s of Court Supreme The despite the deliberateframers’ omission of 136 iko CJ cnldd ht “effective that concluded C.J. Dickson eeec R Pbi Srie Employee Service Public Re Reference

t than suggested by the text of s. 7. The Chaoulli . The court has indicated that the rights note note

concluded concluded that a prohibition on private which held that restrictions on suicideon restrictions that held which ose of the guarantee of freedom of freedom of guarantee the of ose 124 134

at para 60. at 60. para The court’s finding in

was not limited to life to limited not was Chaoulli

ion that freedom d, “[w]here lack ]. ]. Saskatchewan

Saskatchewan Saskatchewan Chaoulli - saving

Draft Error! Unknown document name. Error!property Unknown 144 143 142 141 140 139 138 137 Services Society in Court that find much person the of security and life to to threat serious a constitutes be would courts the for approach free a discovering than Rather aa build foundation onwhich to and environmental of aspects all of “improvement the for the and commitments environmental multilateral in commitment the and bilateral various from inferred be must co law international Canada’s in found be to is environment healthy a to right a If environment.” healthy globaltreatytheright toa binding “no recognizing concede thatthereis commitme international follows, then, that the obligations.” rights to rights life human and security international of Canada’s the person by may informedalso take are meaning fromjustice Canada’s fundamental of that documents Canadarights has ratified.” human international the in found is as protection of level a great as least human of context the in floor a like something provide agreements international Canada’s that suggest construction” a such supporting of capable are the o of binding Canada’s with compliance application of scope the interpreting “[i]n commitments. international Canada’s of foundation the on use to years recent Labour of of Federation in Saskatchewan scope the willingness define help increasing to aid an interpretive an shown as law has international Canada of Court Supreme The any entitlementtoprovide tostate action affirm not does it broadly, defined are person the of security and life to rights 7 s. the that shows healthcare. private out seeking from citizens restrict cannot it healthcare, life”.

See also, International Covenant on Economic, Social and Social Economic, on Covenant International supra I, Khadr Hape v R supra of Labour, Federation Saskatchewan supra Chaoulli, Divito v Canada (Minister of Public Safety and Emergency Preparedn Emergency and Safety Public of (Minister Canada v Divito ai R od “osiuinl eonto o te ih t a elh Evrnet Mkn a ifrne in Difference a Making Environment: Healthy a to Right the of Recognition “Constitutional Boyd, R David Canada”, White Paper #1, (David Suzuki Foundation, 2013) a 2013) Foundation, Suzuki (David #1, Paper White Canada”, 70. also, at See para SCR 2 391 [2007] 23; para 93. 137

rights. Several justices have observed that “the that observedhave Severaljustices rights.

Chaoulli Chaoulli Urgenda , 2007 SCC 26, [2007] 2 SCR 292 at para 56 [ 56 para at SCR 2 292 [2007] SCC , 26, 2007 Canada (Attorney General) v. PHS Community Health Services & Support & Services Health note note or or activities associated with prostitution in . Climate change in this sense is a danger like drug use in use drug like danger a is sense this in change Climate . stands for the proposition that where the government fails to pro to fails government the where that proposition the for stands International Covenant on Economic, Social andCultural Rights 104 130 141

at para 29. 29. para at

at para 42. 42. para at nts. Even proponents of a constitutional right to a healthy environment environment healthy a to right constitutional a of proponents Even nts. In the specific case of s. 7, the court f

- standing right to a healthy environment in s. 7, a more plausible plausible more a 7, s. in environment healthy a to right standing

constitutional

- Facilities Subsector Bargaining Assn v British Columbia British v Assn Bargaining Subsector Facilities , an expansive interpretat expansive an , Saskatchewan Federation of Labour of Federation Saskatchewan bligations under international law where the express words words express the where law international under bligations

note

healthcare. 129

Cultural Rights, Cultural -

at para 157. paraat 157. right a to healthy environment. 24 140 Hape the Services Services Society

This is consistent with other statements that statements other with consistent is This

Charter ]. atclr hnmnn f lmt change climate of phenomenon particular

Charter t 14.

1966, CTS 1976/46, art 12(2)(b). CTS 1976/46, 1966, industrial hygiene.” industrial Bedford

139 te ors hud ek o ensure to seek should courts the , ound in ion of a of ion

ess) , , 2011 SCC 44, [2011] 3 SCR 134 at para

The court held in held court The should be presumed to provide at at providepresumed be to should , 2013 SCC 47, [2013] 3 SCR 157 at 157 SCR 3 [2013] 47, SCC 2013 , like The Netherlands Supreme Supreme Netherlands The like . Even though the government , supra Charter Khadr Charter

note note 138

that “[t]he principles

129

rights. As seen in in seen As rights. 144

So while So right may be built be may right PHS Community Community PHS

at para 157. para at This is too thintoo is This R. v Hape v R. mmitments, it mmitments, vide adequate vide , 2007 SCC 27, 27, SCC 2007 ,

to take steps

Chaoulli 142

that

143 It

Draft Error! Unknown document name. Error!property Unknown 148 147 146 145 The obligation. that to the whether of question antithetical is Pipeline Jus not or Mountain Trans the jurisprudence does not support the conclusion that there is such a positive obligation.” of enhancement the “a foster must action government that s. 7 protects a right to a healthy environment. Justice Affleck observed that “[the protesters] argue the that breach a court reason order. Nevertheless, he went the on in that observed Affleck Justice h they because but change climate of because not was risk at was freedom protesters order. court the breach to them compelled of defence the necessity raised protesters The Pipeline. Mountain Trans the of construction the for sites climate change whether of issue The 3. economic the Canadian in great one unresolved law. rights,is of questions essence, in are, claims change climate positi constitutional the words, other In action. government The plaintiffs in the constitutional climate change claims are objecting to government inaction not where it was alleged that Canada and Ontario’ Society Services the problem. This is a different kind of allegation than was made in exacerbate an existing threat to life or security of person; it is policies that the that policies not areare change climate to relation in Ontario and Canada of failings alleged The may suggests thatit parties third of acts the actually was the by probabilities.” suffered harm the and action reasonab a by satisfied “is connection this that and claimant government impugned the between connection” causal in court The person. the of security and life to in restrictions criminal the that exacerbated risks or prevented mitigation of risks of those activities. The court accordingly found or use drug for responsible not was

Trans Trans Mountain Pipeline ULC v Mivasair V Sinha, L Sossin, & J Meguid, “ JMeguid, & Sossin, L Sinha, V Ibid Bedford action.” that in indicated its 7Appeal “s. ofthe of view in inadequate be to Affleck’s Justice a or considered Court of Appeal environment healthy a to right a includes 7 s. that argument protesters’ Mivasair ULCv. at 44. 43 Policy Social & Law ve rightsclaims. Whether notthe or

at para 89. para at The The , tice Affleck’stice

supra n epne o hi ars camn ta gvrmn iato o ciae change climate on inaction government that claiming arrest their to response in Charter 145

– note note Te osiuinl lmt cag cam mr coey resemble closely more claims change climate constitutional The .

was raised by protesters arrested for breaching a court order to remain away from

The court also dismissed the government’s argument that the cause of the harmthe causeof the that government’sargument the dismissed alsocourt The is under appeal, so it remain appeal, so isunder 106 Scott v. Canada (Attorney General) (Attorney Canada v. Scott

be enough thatgovernment ofclimate exacerbates action change.risk the and Positive Rights Charter

at obiter Charter para 76. 76. para Charter

s. 7 protects a hea a protects 7 s. Charter conclusion is correct, he has identified an important question. The importantquestion. an identified has hecorrect, is conclusion PHS Community Services Society Services Community PHS

provides for positive rights is one of the main conceptual issues issues conceptual main the of one is rights positive for provides

s. 7 positive rights claim s. in 7 the rights claim contex positive , , 2019 BCSC 50, 304 ACWS (3d) 87 at para 68. – prostitution, the criminal law restrictions on those activities those on restrictions law criminal the prostitution,

Litigation, Social and Economic Rights & Civil Procedure” (2017) 26 J 26 (2017) Procedure” Civil & Rights Economic and Social Litigation,

Pimps and Johns. and Pimps climate system capable of sustaining human life” and that that and life” human sustaining of capable system climate

s to be seen whether the B.C. Court of Appeal will engage with the with Appeal of the will engage B.C. Court whether seen sto be Charter Charter s policies to mitigate homelessness were insufficient. -

25 Bedford lthy environment lthy obiter dicta

only deals with deprivations that governm result from deprivations only with deals , 2017 BCCA 422, 417 DLR (4th) 733. The B.C. Court B.C. The 733. (4th) DLR 417 422, BCCA 2017 , -

protects positive rights, particularlyprotects and rights, social positive

146 held that there need only be a “sufficient a be only need there that held

le inference, drawn on the balance of of balance the on drawn inference, le In the context of climate change, this change, climate of context the In

to consider the protesters’ claim that

and – t of veterans’ t injury benefits of veterans’ alleged Bedford

specifically in the context of context the in specifically Bedford 147

inadequate to address and Trans Trans Mountain Pipeline

violated s. 7 s. violated PHS PHS Community obiter ad chosen to chosen ad 148 Tanudjaja . The B.C. The .

Whether rights

ent Draft Error! Unknown document name. Error!property Unknown 152 151 150 149 public funds.” become society a warped in a context where the in body that dictates spending is not the same as resourcesthe body that co allocating and managing for “[i]ncentives explains: Macfarlane of Separation policies. are responsible for both choosing policies and setting the levels of taxation necessary to fund those flexible tools at their disposal to implement policy. legislatures Just as important, however, is that legislatures that poli fact evaluate and the study to resources is more significantly legislatures have typically to decisions spending for responsibility allocating for appropriate the be to representatives elected consider decision theorists liberal many that sense the in choice and one driven by practical considerations of institutional design. The choice is normative pol complex Allocating courts. not legislatures, claims rights positive rights. Constitutions in the liberal tradition typically provide for protection of negative rig rights requireand expenditures.action often entail state material generally rights negative that say can positive whereas expenditures; requirematerial not do andaction from refrain to state requirethe we perspective, practical a From healthcare. universal people most that as such programs welfare social on expenditures than smaller magnitude way of orders areexpression rough a in positive exp or example, For negative understand. as categorized be generally that can seen be rights can it speaking aside, set is purity definitional for requirement a When margins. ri positive and negative around uncertainty definitional The duties: positive and some will require omissions negative while others will require actions both and the expenditure of generate resources.” may right same the and “[o]ne explained, Waldron and action require sometimes rights negative expenditure while that the realization of shows positive rights can examination require non Closer grey. of shades when binary, white and black a as portrayed was once what things, many so with As welfare state. the or from payment a income requires which basic a to right a is liberty positive a of example An liberty. holder’s rights take to others require that those are liberties Positive activities. expressive individual’s an limiting from refrain to state the requires generally which expression interfering wi liberties. positive and negative liberties between distinction a made have philosophers political liberal other and Berlin Isaiah environment. the whether determined be to is it if resolved be must that

J Waldron, “Rights in Conflict” (1999) 99 Conflict”(1999) in “Rights JWaldron, Berlin, Isiah Emmett Macfarlane, “Positive Rights and Section 15 of the Charter: Addressing a Dilemma” (2018) 38 N.J.C.L. N.J.C.L. 38 (2018) Dilemma” a Addressing Charter: the of 15 Section and Rights “Positive Macfarlane, Emmett De Rights Positive/Negative the to Approach Principled “A David, Lawrence See 147 at 150. 147 Approach]. A [David, Principled 44 and 44 at 41 F Const 23 (2014) Adjudication” 151 -

m Such constitutions are premised on the view that the complex policy questions raised by akers in questions of allocation of state resources. Foremost among practical reasons reasons practical among Foremost resources. state of allocation of questions in akers

Four Essays on Liberty on Essays Four th the individual rights holder. A classic example of a negative liberty is freedom of 152

– policy

nldn ise o txto ad expenditure and taxation of issues including

- 149 enditures on state measures required to facilitate or accommodate or facilitate to required measures state on enditures viewed with a post a with viewed making and fund and making

(Oxford, England: Oxford University Press, 1969) at 130 1969) Press, University Oxford England: (Oxford, Negative liberties are those that require others to refrain from refrain to others require that those are liberties Negative Ethics

503 at 511.at 503 -

26 - icy questions to legislatures is both a normative a both is legislatures to questions icy raising functions can be problematic as Emmett Emmett as problematic be can functions raising

- - modern eye is revealed to be painted in many in painted be to revealed is eye modern

Charter ghts, while real, exists mainly on the on mainly exists real, while ghts,

- interference. Indeed, as Jerem action to realize the individual individual the realize to action

provides a right to a healthy a to right a provides cy options and have more have and options cy bate in Canadian Constitutional Constitutional Canadian in bate

–

r te oan of domain the are - 131 hts, not positive .

llects 150 y

Draft Error! Unknown document name. Error!property Unknown 159 158 157 156 155 154 153 as follows: The protected. forcriteria court’s be to found be will right positive a when determine to criteria applies then and context of the s. 2 fundamental freedoms that first asks whether the asserted right is a positive right dimensions that require state action. of The Supreme Court of Cana negative most the even that allowed has Canada of Court the though Even languageminority educationprogr exception are the minority language education rights in s. 23 which require the provinces to obvious deliver The process. democratic fair a and process legal fair a ensure to expenditures are rights social a of provision the requiring not program. and procedural as another or way one in characterized education language minority time reasonable a within election for stand to and of terms the in in rights Positive primarily rights. negativeframed accordingly is and Trudeau, Pierre force, driving its by favoured them.” might it that but people the for little too do might government that concerned not were Rights of Bill the wrote who men The liberties. positive than rather negative of charter a is negative protect only to understood generally is constitution U.S. the such, As revolution. of aftermath the in crafted thinking enlightenment late of artifact an is Rights, of Bill the particularly constitution, U.S. The

Another way to put this is that the positive rights in the Charter are consistent with the “judicial role”. See role”. “judicial the consistent with are the Charter in rights positive the is that put this wayto Another Ibid Ibid Ibid supra Charter, J Cityof v Jackson Ibid A Principled Approach, supra note supra note Approach, Principled A Colombie la de francophone scolaire Conseil , s14. , s11(b). , 11(a). ss , 10(a), , s 23. See also, also, See 23. s , 153 (2) (1) 159

Canada’s

The government expenditures required in the context of legal of context the in required expenditures government The

of a substantial interference withthe fundamentalfreedom; and The claimant must demonstrate that exclusion from particular regime; statutory a to access in than rather freedom fundamental a in grounded be must claim The note note Charter oliet, oliet, determining whether a positive right is protected by the the protectedby is right positive whethera determining

2 Doucet , ss 3, 4. ss , 3, Charter rights. Judge Richard Posner famously observed that: “…the Constitution “…the that: observed famously Posner Richard Judge rights. 715 715 F2

156 154

- is, for the most part, framed in terms of negative rights, the Supreme the rights, negative of terms in framed part, most the for is, Boudreau v Nova Scotia (Minister of Education) of (Minister Scotia Nova v Boudreau ; the right to an interpreter in criminal proceedings criminal in interpreter an to right the ; ; rights to information in the criminal context criminal the in information to rights ;

, though a much more modern constitution is in the liberal tradition liberal the in is constitution modern more much a though , d 158

1200 (7 1200 Ms o te xrs pstv rgt i the in rights positive express the of Most . 148 ams.

th at 45. at

Cir, 1983) at paraat 8. 1983) Cir, Charter

Britannique v. BritishColumbia Britannique -

st 27 ick out as obvious exceptions: the rights to vote to rights the exceptions: obvious as out ick

Charter da has set out an approach in the

a statutory regime has the effect , 2003 SCC 62, [2003] 3 SCR 3 SCR 3 [2003] 62, SCC 2003 , , 2020 SCC 13 2020 ,

rights may have positive positive have may rights 155

Charter rights and democraticand rights ; the right to be tried be to right the ; 157

Charter ; and the rightto the and ; .

do too much to much too do

may be stated stated be may

a be may David,

and and Draft Error! Unknown document name. Error!property Unknown 167 166 165 164 163 162 161 160 Christie v. General) (Attorney Columbia claim that s. 7 guaranteed a right to “a level of social assistance to meet basic needs”. in court The so. do to declined but 7 s. to opportunities where the Supreme Court of Canada could have endorsed a rights positive approach these.” of people deprive to ability state’s the restricting interpretebeenhas 7 s. Rather, person. the of security or liberty life, enjoys person each that ensure to state the on obligation positive a places 7 s. that suggests far thus jurisprudence the in personal on encroachment government against protects that right negative a is 7 s. that understanding common the with inconsistent as people many strike may actioncompel to government the against claim rights positive afor basis the of 7 s. of context the in arisen alsohave issues rights Positive Nonetheless has been the possibility left considered and open….” the whether legislatures or on contexts Parliament such that a failure to legislate could be challenged other under the in decide to La Forest observing genera rights human any provide to legislature a protection at of all. failure the of question the with dealt have would What legislation. the of text the into orientation sexual words the Rights Protection Act. v. Albert is this of example notable most the Perhaps omissions. legislative discriminatory address to 15 s. deploying comfortable are Courts jurisprudence. 15 s. in seen also is legislate to failure u from arising claims between distinction The orto support enable… activity.” an or act otherwise “the legislate governmentwhether must claim that is rights claim dependsthe on le to failed has government in Court underinclusive rather than in claims that the government has failed to legislate at all. le The Supreme of context the in considered been have criteria these Typically

British Columbia (Attorney General) v Christiev General) (Attorney BritishColumbia Ibid General) (Attorney Quebec v Gosselin Vriend I c RSA 1980, Alberta v Vriend supra Baier, Dunmore v Ontario (Attorney General) (Attorney Ontario v Dunmore SCC 31, [2007] 2 SCR 673 at para 30 [ 30 at para SCR 2 673 [2007] 31, SCC at para 76. para at (3) , supra supra , a ae v Alberta v. Baier 162

where Alberta omitted sexual orientation from the grounds protected in its note note - note h gvrmn i rsosbe o te nblt t eecs te fundamental the exercise to inability the for freedom. responsible is government The

2. , [1998] 1 SCR 493, 156 DLR (4DLR 156 1 SCR[1998] , 493,

Could Could s. 15 be interpreted to require 157 159

at 35. at 35.

163 at para 64. 64. para at

160

The court found the omission discriminatory and remedied it by reading

lly lly of itd ht hs ciei mgt lo pl t a iuto wee the where situation a to apply also might criteria these that hinted gislate. The court explained that whether a rights claim is a positive positive a is claim rights a whether that explained court The gislate.

Charter , 2002 SCC 48, [2002] 4 SCR 429 at para 81 [ 81 para at SCR 4 429 [2002] SCC 48, 2002 , , 2001 SCC 94, [2001] 3 SCR 1016 1016 SCR 3 [2001] 94, SCC 2001 , 161 Baier

freedom. Indeed, as McLachlin CJ has CJ McLachlin as Indeed, freedom.

]. jurisprudence wrote that “[i]t has not yet been necessary 167 , 2007 SCC 21, [2007] 1 SCR 873 SCR [ 1 873 [2007] SCC 21, 2007 ,

th Charter Gosselin v. Gosselin

) 385 [ 385 ) h cut osdrd hte a ih t acs the access to right a whether considered court the -

28 drnlsv lgsaie eie ad lis of claims and regimes legislative nderinclusive

Vriend -

the enactment of might impose positive obligations on the the on obligations positive impose might ]. Québec (Attorney General) (Attorney Québec

165

Several cases stick out as obvious as out stick cases Several 164 gislative schemes alleged to be to alleged schemes gislative at paras 24 paras at Charter

is less clear is how the court the how is clear less is

human human rights codes? Christie Gosselin . The use of s. 7 as the the as 7 s. of use The . - 26; ]. Baier v Alberta v Baier

noted, “[n]othing noted, ].

166 considered a a considered

Individual In C harter Justice Justice British Vriend , 2007 , d as as d . . Draft Error! Unknown document name. Error!property Unknown 173 172 171 170 169 168 enactanti to Parliamentrequiring reality concentration of media ownership. And it is still harder to imagine the court in such a hypothetical pursuant claim wherethe reality hypotheticala in Even requiremight governmentregulation preventof ofthepress. to ownership monopolization (Alta.) Act Relations Employee Service in mused Dickson Justice Chief example, For rights. other of said be also basic the bargaining of and right to strike recognized to be contained many within freedom of association, but it may provides state modern the of conditions for theexercise of apparatus the example, For possible. rights law. of rule the to today them understand “precondition” a was counsel to right the of the person ins.7. Asimilar argument was put forward in by and, state the pre ais environment healthy a that contextCanadian the of existence the in for argued being it imagine could One rights. constitutional other all requirement of foundation the extension, fundamental a was environment healthy the Staton, Justice For rights. other of existence the for predicate necessary a are that in Staton Justice by raised question o exercise the for conditions background create to duty a has state the whether is question rights positive different slightly A really rights aboutclaims. thinks positive outcome and words the guarantees 7 of and structure language conclusion, this the resisting “far from that s. concluded subsistence. She that case the made dissent, in Arbour, sustain life, liberty, or security of the person may be made out in special circumstances.” maj future. the in claim rights positive successful a of possibility the foreclosing of intention no has it that affirmed repeatedly has Canada of Court Supreme the 7. contravenedpolicies s. homelessness ineffective allegedly Canada’s and Ontario’s that finding Appeal of Court Ontario in leave grant to declined conspicuously also positive rights claims in both expansive The aid. legal of constitutionalization a seeking effectively proceedings all in counsel courts, based on the

Reference Re Public Service Employee Relations Act (Alta), Act supra Relations Service Employee Public Re Reference supra Christie, Ibid supra Gosselin, supra Tanudjaja, See Charter Blencoe v British Columbia (Human Rights Commission) Rights (Human BritishColumbia v Blencoe ority in at para 309. para at Reference re Provincial Electoral Boundaries Electoral Provincial re Reference Gosselin

—

and of s. 7 in particularin s. 7 of and note note to s. 2(b) of the of 2(b) s. to note note

note

s on positive rights in the context of s. 7 make it hard to know what the court court the what know to hard it make 7 s. of context the in rights positive on s 164 principle of the rule of law and the legal rights in the 162 , stated that she was keeping “open the possibility that a positive obligation to 96

at para 18. 18. para at

take for granted the underlying conditions that make the exercise of those those of exercise the make that conditions underlying the granted for take

at para 83. 83. para at at para 62 . 62 para at 168

Gosselin Despite thes Despite rgt truh eilto o ohrie Ti i, n sec, the essence, in is, This otherwise. or legislation through rights f Charter

Charter

Julianna

and rights. This is certainly thecase withthe righ —

whethe - Competition Act Competition

monopoly legislation orother legislation monopoly e prominent failures of positive rights claims under s. 7,under claimsrights positive failuresof prominent e

to the effect that freedom of the press is infringed by infringed is press the of freedom that effect the to Christie actually compel it.” compelactually

when she wrote about unwritten fundamental rights fundamental unwritten about wrote she when , [1991] 2 SCR 158, 81 DLR (4th) 16 at para 18. See also, See 18. para at 16 (4th) DLR 81 158, SCR 2 [1991] , -

r freedom of expression and freedom of the press press the of freedom and expression of freedom r 29 Tanudjaja Tanudjaja

- were dismissed. Th

, 2000 SCC 44, [2000] 2 SCR 307 at para 188. para SCR at 2 307 [2000] SCC 44, 2000 , condition to the right to life and securityand rightto life the to condition

does not exist it is difficult to imagine a imagine to difficultis it exist not does

pstv rgt o h bsc en of means basic the to right positive a note note ept a isnig uget n the in judgment dissenting a despite Christie 171 169 166 172

The juxtaposition of the court’sthe of juxtapositionThe at para 77. at 77. para McLachlin CJ, writing for the for writing CJ, McLachlin

Many

where was it contended that e Supreme Court of Canada wise take action in respectin actiontake wise Charter

Charter Reference Re Public Re Reference , included a right

t to collectivet to ihs s we as rights 170 right to a to right

173 Justice

Draft Error! Unknown document name. Error!property Unknown 174 the to it left and 2020 by government 25% to choose the meansby by which to emissions achieve this objective. GHG The reduce to required was Netherlands The of wou power. taxation traditional resistance to vindicating social the and economic rights claims, the engageonly appropriate remedy may wereIf toovercomethe a court Canadian andhomelessnesssuited tocourts policy. thanhousing and interests, competing many planDeveloping tomeet comprehensive a of balancing the involve develop, to expertise require measures Such individuals. by energy that of consumption the and Paris Agreement its meet Canada see will that legislation environmental Significant executive. and legislature the fu failed; cases on these bases is fair, but change misses the real reason that climateearlier social and economic rights cases constitutional the Distinguishing require. necessarily housing require social or they welfare that signi basisrequire necessarily the not on do distinguished and be legislation also may cases change climate constitutional The problem. the mitigate to actions government of adequacy the measure which by standards rights might point out that climate science and the establish to failures earlier these from claims change Charter in policies and legislation homelessness and housing to challenge the meet to requir and Ontario’s inadequate declared policy and and legislation Canada’s have to as seek historic claims described change broadly climate the constitutional be The may from rights. what positive particular, away judicial in moves and, rights of Canada economic and worthy of social adjudicating Court is Supreme that the issue ultimately serious and a courts Canadian whether on raise depends claims these of more or one of claims success The consideration. change climate constitutional The V. the legislative domainmayactually promotedemocraticoffailures tolegislate. resolution of realization facilitatethe to strategy to encourage or subtly threaten legislatures failure to legislate the under power its of question the open leave to choice Canada’s of Court Sup the that ventured be may it but unknowable, be its may answer An of open? question so do the to power leaving in consistent so been Court Supreme the has why then unthinkable, cloth. whole Parliament or environment healthy the a of rubric the under whether question of to and healthcare universal importance and nature fundamental the acknowledge to possible fo precondition a that was claimed healthcare was public it and healthcare universal provide to ceased government the where scenario a with faced was court the if different any be it Would ownership. media of concentration a of

See, for example, example, for See, the positive right to state funding for healthcare.” for tofunding state right positive the (3d) 73 at para 571: “section 7 of the ld be akin to that issuedin that to akin be ld Conclusion

protects w ndamentally those cases failed because courts were unwilling to tread in the territory of of territory the in tread to unwilling were courts because failed cases those ndamentally

to fashion an environmental protection regime or universal healthcare program from from program healthcare universal or regime protection environmental an fashion to Paris Agreement Paris 174

targets may require significant measures affecting Canadian Doctors for Refugee Care v Canada (Attorney General), General), (Attorney Canada v Care Refugee for Doctors Canadian – elfare in f eurn gvrmns o nttt sgiiat eiltv porm is programs legislative significant institute to governments requiring If

even even if it is never exercised

Gosselin

GHG reduction targets. This is not very different from the fromdifferent very not is This targets. reduction GHG Charter

Urgenda Charter . An advocate seeking to distinguish the constitutional climate

rights. In this roundabout way, the threat to encroachupon to threatthe way,roundabout In this rights.

where the court issued a declaration that the governmentthe that declaration a issued court wherethe r the right to life or security of the person? It is both both is It person? the of security or life to right the r ’s guarantees of life, liberty and security of the person do not include the challenge of climate change is an exercise no more nomore isanexercise climate change of the challenge

30 – iat oenet xedtr i te a that way the in expenditure government ficant

may be a conscious or unconscious institutional Paris Paris Agreement -

to ensure that they provide adequate programs e the implementation of measures sufficient sufficient measures of implementation the e Charter

protection for social and economic and social for protection

Tanudjaja

industrial industrial production of energy provide Charter remedy remedy in Canada would

2014 FC 651, 244 ACWS ACWS 244 651, FC 2014 judicially manageable Charter

or the claim that the that claim the or a court would order would court a l vrin to aversion al

to remedy a remedy to Charter

reme

Draft Error! Unknown document name. Error!property Unknown 175 force act legislative and change or deadlock tobreaka tointervene climate courts case for ofgovernment,the cooperation between levels of mitigation on progress meaningful without pass years if today, unlikely to obliged is together, working government is free to the determine how to governmentthat meet that obj and 2030 by of levels 2005 below levels 30% of reductions both GHG achieve to policies with implement Canada, that declare to be

See, generally, generally, See, Response to Systemic Risks” (2019) 62 C.B.L.J. 149. C.B.L.J.62 (2019) Risks” Systemic to Response Edward J. Waitzer & Douglas Sarro, “Climate Change: A Template for Judicial Activism in in Activism Judicial for Template A Change: “Climate Sarro, Douglas & Waitzer J. Edward ion on climate change more become ion on compelling. may

ective. Although such an outcome may seem 175