Ontario’s highest court sides with young activists, paves way for reexamination of Ford’s climate policies

Because of seven young environmental activists and their sheer determination, Ontario’s lower court will have to reconsider whether the Doug Ford PC government’s policies have increased emissions, in breach of Charter rights that protect their safety.

“I'm feeling really great. I also feel like it hasn't fully set in yet…because it's been so long,” Beze Gray, one of the appellants, told The Pointer.

The youth group with lawyers Fraser Thomson and Danielle Gallant at a press conference in 2019.

(Ecojustice, Photographer David LeBlanc - Alpha Images)

Growing up, Gray, an Aamjiwnaang First Nations member, was taught by elders to think of the seven generations who lived before and the next seven generations who will live in the future, when making decisions. 

This deeply ingrained Indigenous value which had helped protect the land and air and water for thousands of years was under threat as they witnessed the devastating effects of oil and plastic pollution on their community, surrounded by “40 percent of Canada’s petrochemical industry.”

“For me, this ties into my own personal responsibilities to my community.” 

Confronted with the broader implications, Gray realized it is not any single community but the entire world that is at risk because of the worsening climate crisis. This sparked a profound urge to take action.

Beze Gray, 29, is an Anishnaabe land and water protector as well as a student from Aamjiwnaang First Nation in Ontario. Growing up near Sarnia, in a region often referred to as Chemical Valley, Beze has experienced firsthand the impacts of the fossil fuel industry.

(Ecojustice. Photographer Tilly Nelson, set design Kendra Martyn & Kira Evenson)

Gray met Sophia Mathur through Ecojustice. A resident of Sudbury, she had been actively involved in the Fridays for Future movement since 2018. When the Ford government decided to repeal the Climate Change Mitigation and Low-carbon Economy Act of 2016, she reached out to the lawyers at Ecojustice.

Representing the pair and five other youths who had come together from across the province, lawyers argued that the reduced carbon emissions target set by Ford and his PC government infringes on the constitutional right to life, liberty, and security for all Ontarians. 

When the PC government won power in 2018, one of its first acts was the repeal of a law introduced by the Liberals supporting Ontario's cap-and-trade system.

At the same time, the PCs lowered the reduction target for climate-warming emissions from a goal of 37 percent below 1990 levels by 2030 to 30 percent below 2005 levels. 

Ecojustice presented evidence suggesting this revised target would permit an additional 30 megatonnes of annual emissions by 2030.

Using sections 7 and 15 of the Charter, the young activists contended that children are disproportionately affected by climate change impacts, including poor air quality and mental health challenges, and they will bear the most severe consequences as environmental degradation worsens throughout their lives.

Sophia Mathur was the first student in Canada to join the Fridays for Future movement.

(Ecojustice. Photographer Tilly Nelson, set design Kendra Martyn & Kira Evenson)

“I believe that our case can make a real difference for young people in Canada and put Ontario back on track to take real climate action and start working for a safer future,” Mathur said in a virtual press conference on October 17, when the successful appeal of  a lower court decision was announced, while highlighting the importance of holding political leaders accountable “for failing to act on and actively contributing to the climate crisis.”

In a ruling last year, Ontario Superior Court Justice Marie-Andrée Vermette acknowledged the significant gap between necessary global emissions reductions and the targets outlined in the provincial plan, describing it as "large, unexplained and without any apparent scientific basis." 

“Ontario’s decision to limit its efforts to an objective that falls severely short of the scientific consensus as to what is required is sufficiently connected to the prejudice that will be suffered by the Applicants and Ontarians should global warming exceed 1.5 degree celsius,” the judge noted. “By not taking steps to reduce greenhouse gas in the province further, Ontario is contributing to an increase in the risk of death and in the risks faced by the Applicants and others with respect to the security of the person.”

Despite her acknowledgment of the issues, she dismissed the case, asserting the Province's emissions target did not violate the Charter. The reasoning was that though the reduced target permitted higher emissions, the effect of any increased pollution could not be tied to any specific obligation the provincial government had under the Charter, which outlines certain protected values but does not include language about protecting previous laws which enhance particular values attached to rights that are only vaguely connected to those laws. The judge determined that the applicants were trying to impose a "freestanding" obligation on the provincial government to take action on climate change, when there is no specific connection between rights-based obligations and specifically required legislation around climate change.

Unlike a law that can not be curtailed because a specific Charter right would be infringed, for example the ability of a person to freely express their religion without causing harm to others, the judge did not make the same connection regarding the right to safety and security. This raises constitutional questions about why the curtailing of legislation around emissions targets would not amount to the same rights violation as a law that would curtail religious freedoms.  

Similar to Ontario’s case, legal systems across the globe are now being asked to play a more proactive role in scrutinizing government climate strategies by finally taking a stand through constitutional interpretations that accurately represent the reality of how dangerous climate change is today. The courts, advocates argue, cannot be blind to the once-in-a-thousand-year hurricanes, mass wildfires, deadly heat and biblical floods that all of us are witness to.  

In 2016, Rabab Ali, a 7-year-old girl from Karachi, took the Pakistani government and the Province of Sindh to the country’s supreme court, claiming violations of constitutional rights and the Public Trust Doctrine regarding climate and environmental degradation from coal-fired electricity generation. 

Her petition asserted that exploiting coalfields, primarily in the Thar Desert which could increase coal production significantly and release approximately 327 billion tonnes of carbon dioxide, will destabilize the climate and infringe on rights to life, liberty, and dignity, emphasizing Pakistan's commitments under the UN Framework Convention on Climate Change and the Paris Agreement. The petition highlighted negative impacts on air and water quality, potential displacement of the Thari people and violations of their property rights. Ali argued for renewable energy solutions and the protection of mangroves to sequester carbon, noting that $1.2 billion from the China-Pakistan Economic Corridor is invested in coal development.

Similarly, in 2019, the Supreme Court of the Netherlands determined that the Dutch government has an obligation to safeguard its citizens from the potentially severe impacts of climate change. It affirmed previous court rulings that mandated the government to implement deeper emissions reductions.

Ecojustice staff lawyer and Climate Director, Fraser Thomson said in the previous ruling, the court believed that his clients had a “positive rights case which is a case that required the government to step into a problem that maybe it wasn't responsible for.” 

As per a 2021 study titled ‘Positive Charter Rights: When Can We Open the Door?,’ positive rights require the government to take specific actions to ensure that certain rights are accessible to right holders. 

In Canada, there is ongoing debate about whether the Supreme Court should recognize such rights under the Canadian Charter, particularly regarding sections 7, 12, and 15, which currently do not support positive rights based on existing precedents.

When governments fail to fulfill individuals’ positive rights, courts are required to mandate specific actions to ensure compliance, but there is controversy over the extent of judicial authority in this area.

On October 17, the three judges at the Ontario Court of Appeal “overturned that finding” and ruled in favour of the seven youths, allowing their appeal to “go back to the lower court.” 

The highest court in the province noted that by setting climate targets, the government is actively engaged in managing greenhouse gas emissions in the province, rendering the previously used positive-rights interpretation inappropriate, as the situation does not fall under the category of a law aimed at providing a required protection moving forward, but rather involves a law that was already in place to protect citizens, and was then removed by a government, something the courts have made clear cannot be done if this results in a direct breach of the right to safety and security, Thomson, who has worked with Ecojustice for over 12 years, added.

“The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter compliant. She erred by failing to consider the correct question,” the decision read.

As a result, the judge will now have to reassess whether Ontario's climate plan and target, which replaced a much stricter protection, align with Charter rights aimed to ensure the safety and security of all Canadians.

“We were seeking an order compelling Ontario to bring its greenhouse gas emissions targets in line, at a minimum, with the Paris standards in order to avoid climate catastrophe,” the lawyer said.

The 2015 Paris Agreement stipulates that to limit global warming to 1.5 degree celsius, greenhouse gas emissions must peak by 2025 at the latest and be reduced by 43 percent by 2030.

With the court of appeal acknowledging that this is not a positive rights case, Thomson says “a huge legal barrier has been removed, and our clients are optimistic that when they get back before the lower court, they're hopeful that their case will succeed.”

With renewed hope, the appellants are preparing to face off against the PC government once again, which has employed some questionable tactics in the past, including citing misleading claims from York University physics professor William Van Wijngaarden. A known climate change denier who has collaborated with former U.S. President Donald Trump’s White House skeptics, Van Wijngaarden has published non-peer-reviewed assertions regarding the benefits of carbon dioxide emissions. As previously reported by The Pointer, the PCs have used his debunked models to argue that significant climate changes from provincial emissions reductions would take thousands of years. This goes against decades of science and thousands of peer-reviewed research papers but that did not stop the PCs from cherry-picking the discredited views of a known climate change denier. 

Despite these challenges, “I hope that this court case will set a precedent and make historic change for seven generations ahead, so that we have better climate target goals,” Gray shared, echoing Thomson’s enthusiasm.

One significant case which could benefit from a precedent-setting decision like this one is La Rose et al. vs. His Majesty the King, brought by fourteen youth from seven provinces and a territory across Canada against the federal government. Their demands are similar to those of the seven youths in the Ontario case, and if successful, the government would be required to create and implement a science-based climate recovery plan aimed at reducing atmospheric carbon dioxide levels from nearly 420 parts per million (ppm) to safe levels of 350 ppm or lower by the end of the century, addressing the urgent need of action on climate change. 

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