Climate change, the Charter of Rights, and 'positive vs negative rights'

The muddled opinion of the Ontario Court of Appeal in Mathur v. Ontario

The Ontario Court of Appeal released its decision in Mathur v. Ontario, a youth-led Charter challenge against Ontario’s policy governing the target for climate emissions. In brief, the claimants assert that the weak or insufficient targets the Ford government have pursued under the law violate their section 7 right to life, liberty and security of the person and their section 15 equality rights. They seek an order on Charter grounds requiring Ontario to pursue a ‘science-based’ emissions target.

Although the trial court found that climate change poses grave dangers that will impact the lives of Ontarians, and that the issues involved are justiciable, the judge determined that ultimately what the claimants sought was a positive right to sufficient climate action by the provincial government. This framing informed the trial court’s assessment of whether the government’s policy violated the principles of fundamental justice under section 7 (whether it was arbitrary or grossly disproportionate), and it quite easily concluded that it did not. The section 15 analysis was even more straightforward on this point: the trial court noted that the disproportionate impact affecting young people is caused by climate change, not the provincial policy or target, and thus there is no violation of the claimants’ equality rights (I pause here to note that it is puzzling the same is not true of the harms imposed under section 7: it is climate change, not an ‘insufficient’ emissions policy, that puts at risk the claimants’ lives and their security of the person).

The Court of Appeal rejected this framing outright. It its view, the claimants’ are not seeking a free-standing positive obligation under the Charter for governments to address climate change. Instead, what is at stake is the adequacy of the ‘self-imposed’ obligation imposed on the government by its own law. The question the trial court should have considered, according to the appellate judges, is whether, by pursuing an insufficient target, the government is contributing to the harms at stake.

Here we must confront the question of which of these decisions holds an intelligible understanding of positive vs negative rights. In my scholarly work I have written about the dilemma of positive rights in different contexts. In general, the conceptual distinction is as follows: ‘negative’ rights are those rights that are infringed by state action (for example, censorship laws, prohibitions on activities affecting one’s personal liberties or autonomy, like a ban on abortion, etc.), whereas positive rights are rights that actually require state action in order for their protection (for example, section 23 of the Charter guarantees official minority language education rights, or a demand that the government provide me with a platform on CBC for five minutes for my right to free expression).

The Charter is generally, although not exclusively, a negative rights document. But for section 23, it contains no express provisions for social or economic rights (which actually have been considered in the past - the failed Charlottetown Accord would have introduced a non-justiciable social charter into the constitution). Section 7, as a Legal Right, was meant to be about what the state can do to you in the context of the justice process, although the courts have extended it to other laws/policies that might impose serious harms to life, liberty and security of the person. The courts have thus far refused to extend section 7 to impose positive obligations on the state, although the Supreme Court left the door open to the possibility in the 2002 Gosselin case, saying that there might, conceivably, some day be a case with special circumstances warranting such a reading.

The positive vs negative rights distinction is fairly obvious most of the time, but there are cases that where it is not so clear-cut. I have written this can be especially true in the equality rights context. For example, underinclusive legislation might trigger section 15, when laws or programs that provide benefits to some but not others based on questionable or arbitrary grounds might prove discriminatory. Similarly, cases where the Charter is found to impose obligations, but not ‘free-standing’ ones, could arguably be framed in ‘negative’ or ‘positive’ rights terms. For example, the 1997 Eldridge decision by the Supreme Court that hospitals are required to provide sign language interpretation to deaf patients is grounded in the need to access health care free from discrimination, a framing that roots the decision in negative rights terms with a positive rights gloss (governments can’t provide a service but leave systemic barriers to it unaddressed).

I have also written that there are cases where, from the perspective of the rights holder, the positive vs negative rights distinction looks basically meaningless. The famed Morgentaler case on abortion is a great example. In Morgentaler the Court ruled that the criminal law imposed arbitrary delays (and also resulted in a lack of access in some parts of the country) that infringed the section 7 rights of those seeking services. The majority (aside from Justice Bertha Wilson) avoided ruling that there was ‘a right to abortion’ under the Charter, focusing instead on the harms imposed by the specific criminal law at issue.

Morgentaler is thus a classic ‘negative rights’ decision, but after the criminal law was left unreplaced and access to abortion fell to provincial policy decisions, we were left with a situation where there were still delays and uneven levels of access across the country. Until 2016, PEI offered no services on the island whatsoever. Is a refusal to provide services contrary to the Charter? I have argued that from a section 15 perspective that if a government is going to provide government-run health insurance and exclude an obviously gendered medical service, then the Charter is indeed implicated. But from the perspective of the rights holder, who cares if this is the imposition of a ‘positive obligation’ or merely the protection of a negative right?

I don’t think Mathur is analogous to such cases, however. In fact, I think the Court of Appeal has only confused these issues. The Court is making an implicit distinction between whether the government has an obligation to address climate emissions (apparently it doesn’t) versus whether, if it is going to enact a law, it has to enact one that is in some sense ‘good enough’.

This is dubious reasoning, on multiple grounds. First, how could it possibly be the case that the Charter says nothing about the harms of doing nothing but it does activate at the level of not doing enough? The state action here is that the government is only taking weak action to address emissions. But how could only modest or minimal reductions create Charter-infringing harms when taking no action would not?

Second, none of the harms at stake (under section 7 or 15) are actually created by government policy. The harm is climate change itself. Ontario could go net zero tomorrow and, barring swift action from major emitters around the world, none of the threat to peoples lives or safety will change. Note here I am not pointing this out as a reason to do nothing, as climate skeptics do; I want much more stringent action on climate change. What I am pointing out is essential evidence before the courts: the ‘harms’ are not the result of state policy. The only way Ford’s weak climate targets meaningfully impact rights is if you believe moderately better targets will mitigate climate change. That’s not on offer. The reason to enact strong climate policy is to try to persuade other countries to do the same, but to suggest that is a basis for a Charter-imposed obligation is to stretch the meaning of the Charter far beyond its textual limits.

Finally, the question should be whether the policy actually creates or exacerbates harm, as distinct from if there was no policy. The province’s targets may not do enough to mitigate climate change or even to approach Ontario’s ‘fair share’ of reductions, but this is not the same as suggesting they are the source of harm. And this is precisely why the trial judge framed the claimants’ Charter challenge as one of positive obligations. The argument is that the Charter requires more stringent action. It is, despite the Court of Appeal’s protestations to the contrary, a demand that the courts impose obligations on the state to take better action on climate change. That’s a positive right. And it’s one that, however unfortunate it may be from a policy or environmental perspective, the Charter simply doesn’t contemplate.

The Court of Appeal’s decision returns the matter back to a trial court for resolution, albeit under the new condition that the trial court cannot frame this as demanding a positive obligation. It will be interesting to see how the case will be resolved. But let’s not kid ourselves: if the claimants win, and even if we might celebrate that from an outcome-based perspective, we would be looking at a radical expansion of the Charter’s practical meaning and application, and it will have followed from a completely distorted conception of the positive vs negative rights distinction.