Andrew Roman is a retired Ontario lawyer with extensive experience in environmental law and litigation.The Canadian Charter of Rights and Freedoms has become something of a legal Swiss Army knife — a pocket-sized toolbox available to anybody wishing to challenge any law or government policy they don’t like. Another way to look at this is as an affliction — call it “Charteritis” — marked by inflammation of Charter claims in areas of law and governance where they don’t belong. Charteritis can be global, like climate change, or local, like city traffic, but increasingly, the virtuous crusaders call upon the Charter to force elected officials to do what the court orders.The recent Cycle Toronto case, in which a cyclists’ organization successfully argued that removing bike lanes violated their Charter section 7 rights to life, liberty, and security of the person, is a good example. Another is the absurd Mathur case, in which a group of children and youths is suing the Government of Ontario over its smaller greenhouse gas emission-reduction targets. If successful, it could force heavy costs upon Ontario consumers and taxpayers. In 2016, the Ontario government legislated emissions reduction targets that proved overambitious. When this became obviously too expensive, in 2018, it legislated a smaller reduction target. The next year, seven children and youths challenged this second law in the Ontario Superior Court. They claimed the revised reductions would worsen climate change in Ontario, violating their section 7 Charter rights. They asked the judge to require Ontario to increase the reduction target..SYRETT: America’s Socrates: Charlie Kirk and the silencing of truth.The Government of Ontario’s challenge to the applicants’ expert evidence and their Charter arguments was technical and ineffective. It focused on the legal technicality that the case raised a “positive rights” claim requiring Ontario to do something affirmative, rather than to stop doing something negative. Still, the judge accepted Ontario’s positive rights argument and dismissed the application.The Court of Appeal overruled the lower court, holding that as Ontario voluntarily legislated a target, its law must be Charter-compliant. It also directed a new hearing. The application should again be dismissed because the applicants are clearly wrong, in fact and law..The application’s factual flaw is that it necessarily assumes that the air in Ontario is not part of the global atmosphere. This is manifestly untrue: Ontario’s greenhouse gas emissions don’t stay in Ontario, and the emissions from everywhere else don’t stay out of Ontario. What affects the global climate, including Ontario’s climate, is the total of all global emissions. Canada emits just 1.5% of these, and of that, Ontario is only 22%. Thus, Ontario emits 0.3% of global emissions. The other 99.7% come from elsewhere. If Ontario disappeared tomorrow, the resulting 0.3% reduction would not measurably change the climate in Ontario — or anywhere else. The obvious legal flaw is that Canada’s Charter only applies in Canada. And an Ontario court’s authority is limited to Ontario. Thus, an Ontario court cannot make any order affecting the 99.7% of global emissions from outside Ontario. The Ontario government cannot offset — through any level of emissions reductions — the global emissions that affect Ontario’s climate. .HANNAFORD: Whose call on health? Geneva's, not Ottawa's.The applicants are asking the court to require Ontario to do something it cannot do within its jurisdiction and ability. That makes the applicants’ Charter argument irrelevant, as there is no causal connection between Ontario’s emissions and risk to their life, liberty, and security of the person. It follows that there is no reasonable, useful order an Ontario court can make.If the new trial court grants the remedy sought, it would oblige Ontario to set a larger reduction target, one it already considers an excessive burden upon Ontario taxpayers. The consequences would include higher provincial social and economic costs, adversely affecting millions of Ontarians, including youths seeking their first jobs. The Charter’s focus on private rights is not well-suited to balancing the public trade-offs between emissions reductions and the social impacts of their escalating costs. Balancing the costs and benefits of Ontario’s emission targets is the role of the elected government, not the courts..The Ontario Attorney General’s litigation team includes excellent constitutional lawyers. Why did they not emphasize the obvious: that Ontario does not sit beneath a self-contained climate dome? Perhaps the lawyers were badly briefed and unaware of it. But that’s unlikely as the experts they normally hire would have offered strong evidence to counter the applicants’ experts..STIRLING: Is UNDRIP affecting Canada’s foreign policy on Palestinian statehood and Israel?.More likely, the lawyers were either instructed or decided on their own to exercise political caution. In today’s political climate, any dissent from the “climate crisis” orthodoxy is met with accusations of “denialism.” The politics of the moment makes quietly losing some cases on technical grounds better than winning with politically unpopular factual evidence and arguments.Judges and Crown lawyers, like the rest of us, are under pressure to “save the planet.” It is difficult to deny the prevailing narrative and refuse the demands of idealistic young people. But this case cries out for mature judgment. To prevent the serious judicial error of granting the application, the mature response for Ontario is to have its lawyers present a team of experts to demonstrate the fatal flaws in the applicants’ case.Andrew Roman is a retired Ontario lawyer with extensive experience in environmental law and litigation. His blog is at https://andrewromanviews.blog/ and his Substack is at https://substack.com/@andrew42.The original, full-length version of this article was recently published in C2C Journal.
