The distinction between negative and positive rights is crystal clear: a negative right is a right that others forebear in some respect; whereas a positive right is a right that others positively provide something to you. In *all* cases of positive rights, there is a question of *how much* is adequate to satisfy the right; the right does not imply its own limits.
For clarity, we must also distinguish between a Charter right, a legislated right, and a mere benefit. A Charter right is a right citizens hold against the government, so a negative Charter right is a right that *the government* forebear in some respect; whereas a positive Charter right is a right that *the government* provide citizens something. A legislated right is a right conferred, optionally, by a legislature, for example in a Bill of Rights. Property rights might be an example. Such rights may be given and taken away by legislative fiat (assuming no Charter implications). A legislated right can obviously be either positive or negative. A mere benefit is something the government gives to citizens that they have no inherent right to. One problem is that mere benefits are often spoken of as though they were or have become a (positive) "right." Healthcare is a good example; nowadays people think of health care as their birthright.
The "how much" question that dogs positive rights involves a public policy matter that courts should be *extremely* reluctant to enter into. This is perhaps the main reason to resist interpreting Charter rights in a positive sense - a resistance that has dramatically weakened in more recent SCC rulings. Judges now believe they are better public policy makers than legislatures are.
Confusion often arises when a Charter right supervenes upon a lower-level legislated right or public policy of providing some benefit. This is what is plaguing the climate change case, I believe. If Charter rights are interpreted negatively, then the nature of the underlying legislated enactment should be preserved: if the underlying enactment creates a negative right, the Charter should not turn it into a positive right, or vice versa; and if the underlying enactment merely creates a benefit, then the Charter should not turn it into a right either negative or positive.
In my view, Ontario's emissions-reduction policy merely purports to convey a benefit; it does not create any new rights, much less positive ones. There is no legal requirement on any government in Canada to mitigate climate outcomes, even if they could (which is not admitted but denied). Canada cannot control the weather, much less the climate; and even if we could, it would be a pure public policy matter how much we spend on which initiatives to do so. This is a matter judges have zero inherent authority to deal with.
This is a very good analysis on the difficulties of domestically solving climate change and of negative/positive rights. I'm afraid we won't get better judicial clarity unless provincial AG's argue a better factual case.
BTW, not a constitutional consideration, but Canada is not going to persuade large emitters to do as we would want them to do. Our courts have no say in what they do and no Canadian "soft power," whatever it may be, is going to accomplish that.
I was surprised that the decision spend more time on the consequences - or lack thereof - of the target. As you say, the distinction between positive and negative rights can be fuzzy at the best of times. Without identifiable practical ramifications, the categorization exercise seems absurd.
Does anyone believe that the current Ontario government would enact substantially different policies if the target were 46% of 30%? I am skeptical.
The distinction between negative and positive rights is crystal clear: a negative right is a right that others forebear in some respect; whereas a positive right is a right that others positively provide something to you. In *all* cases of positive rights, there is a question of *how much* is adequate to satisfy the right; the right does not imply its own limits.
For clarity, we must also distinguish between a Charter right, a legislated right, and a mere benefit. A Charter right is a right citizens hold against the government, so a negative Charter right is a right that *the government* forebear in some respect; whereas a positive Charter right is a right that *the government* provide citizens something. A legislated right is a right conferred, optionally, by a legislature, for example in a Bill of Rights. Property rights might be an example. Such rights may be given and taken away by legislative fiat (assuming no Charter implications). A legislated right can obviously be either positive or negative. A mere benefit is something the government gives to citizens that they have no inherent right to. One problem is that mere benefits are often spoken of as though they were or have become a (positive) "right." Healthcare is a good example; nowadays people think of health care as their birthright.
The "how much" question that dogs positive rights involves a public policy matter that courts should be *extremely* reluctant to enter into. This is perhaps the main reason to resist interpreting Charter rights in a positive sense - a resistance that has dramatically weakened in more recent SCC rulings. Judges now believe they are better public policy makers than legislatures are.
Confusion often arises when a Charter right supervenes upon a lower-level legislated right or public policy of providing some benefit. This is what is plaguing the climate change case, I believe. If Charter rights are interpreted negatively, then the nature of the underlying legislated enactment should be preserved: if the underlying enactment creates a negative right, the Charter should not turn it into a positive right, or vice versa; and if the underlying enactment merely creates a benefit, then the Charter should not turn it into a right either negative or positive.
In my view, Ontario's emissions-reduction policy merely purports to convey a benefit; it does not create any new rights, much less positive ones. There is no legal requirement on any government in Canada to mitigate climate outcomes, even if they could (which is not admitted but denied). Canada cannot control the weather, much less the climate; and even if we could, it would be a pure public policy matter how much we spend on which initiatives to do so. This is a matter judges have zero inherent authority to deal with.
This is a very good analysis on the difficulties of domestically solving climate change and of negative/positive rights. I'm afraid we won't get better judicial clarity unless provincial AG's argue a better factual case.
BTW, not a constitutional consideration, but Canada is not going to persuade large emitters to do as we would want them to do. Our courts have no say in what they do and no Canadian "soft power," whatever it may be, is going to accomplish that.
I was surprised that the decision spend more time on the consequences - or lack thereof - of the target. As you say, the distinction between positive and negative rights can be fuzzy at the best of times. Without identifiable practical ramifications, the categorization exercise seems absurd.
Does anyone believe that the current Ontario government would enact substantially different policies if the target were 46% of 30%? I am skeptical.