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Lets Negotiate. First ever critique of its kind: The EU vs. the Canadian counterpart on Climate change litigation.

Updated: 1 hour ago

Rough copy: was rudely interupted and had not had time to finish the work. Will get around to it; any comments are welcomed. Good reading all.


 

 

TABLE OF CONTENTS:

 

Abstract.......................................................................................................................2

Introduction ................................................................................................................2

Humanity and the Earth relationship..............................................................................2

The EU initiative........................................................................................................

Urgenda Foundation v The Netherlands............................................................................

ECHR Articles 2 and 8................................................................................................. 

Boso case (EU) and Valentin Campeanu v Romania (EU)..............................................

Kroon case (EU)..........................................................................................

Reduction targets..............................................................................................

Mathur case (Canada)................................................................................................. 

Charter s.7 and s.15...............................................................................................

Arguments for positive rights under Charter............................................................... 

Alternative arguements.................................................................................

Conclusion........................................................................................

 

 

 

Abstract:

 

Why not make it a global initiative to stop polluting the Earth? Reform may be on its way where everyone is able to do more than agree that the world would be a better place. Different initiatives to reduce CO2 emissions around the world should represent a spark to unite a global commitment to the earth and each other. This paper will explore how the courts have and may be utilized to pursue this endevour.  The reader must keep in mind that the courts may act as a conduit for further reformations. This paper will explore and contrast cases in the EU and Canada for their insights that may be used by future litigants.

 

 

Introduction:

 

What is the true relationship between the earth and humans is a philosophical question that has been asked for many years past.  People have tried to control nature throughout the history to the benefit of humanity.  This endeavour continues today through modern cars, different heating and air conditioning units, processing plants and more. The earth has stood by while humans in their conquest to control nature and dominate have spread pollution throughout modern history to a point where the detrimental effects are now being seriously realized.  The aboriginal cultures around the world have always understood that humankind must respect the earth and not upset its balances.  When the earth can no longer deal with the number of pollutants there is an effect that falls back on humanity.  If humanity is to survive then it must get back to this aboriginal understanding not to pollute the planet, take what you need and always be mindful of replenishing what you take.  There has been a recent UN initiative to thwart the effects of climate change.  The United Nations and different NGO’s have compiled data that shows the time to act is now before its too late.  One significant impact on the earth is global warming with its main cause being CO2 emissions.  Different nation states around the world have recognized this need and have agreed to cut their emissions by a certain target date.  Problematically, many of these nations’ states are not meeting these goals to date.   Different initiatives around the world that include both Canada and the Netherlands have initiated court challenges to their respective governments to force them into compliance. This paper will examine two cases the first of Uganda v Netherlands and the Mathur v Ontario case of 2024 to illustrate these remarkable endeavors. 

  

 

Humanity and the Earth relationship:

 

Throughout the world different cultures have a certain way at looking their relationship with the earth.  The aboriginal people have a view of nature as being shared with humankind.   Canada has one of many different aboriginal groups within its borders who share similar view among different aboriginal groups around the world.   The Manitoba educational institution describes these beliefs “and practices having received global recognition, as evidenced in Principle 22 of the Earth Charter. This recognition provides a sense of hope and rekindles Aboriginal people’s collective and social responsibility for the future — a responsibility that must be shared equally among all people.”[1] The view represents what they call a respect for the earth, that it is within everyone’s common interest to respect nature.  This is not often heard together with views regarding threat of modern climate change activists.  The idea is that everyone must work together to respect the earth in all endeavors. This implies that their must be an intention and a way where humans enter a cognitive relationship that promotes both a well being for the earth and themselves. This would transcend any human made institutions and ideology that what ever humankind does they must have considerations to the ramifications upon the earth.  This has never been done nor is it currently happening among all the nations states of the world.  Attempts have been made by world organizations to encapsulate culture views around the world that include the aboriginal cultures who favor this understanding. One such document representing these efforts is the Earth Charter, 1994-2000.

 

This effort is, in part an attempt to amalgamate a global consensus on the relationship between humans and the earth.  The Earth Charter was consulted by different aboriginal communities around the world.  Endorsed by UNESCO the document remains an attempt at consolidating differing world views into one document with a commonality to all.  According to the Charter it was “founded by visionaries in the year 2000, we invite the visionaries of today to use the Earth Charter as a reference for decision-making and planning.” [2] It has no legal basis but represents what can be defined as a list of commonalities among the people of the world. When discussing laws and their purpose in part it is to subject society to certain accepted norms.  With the recent recognition of climate change as a global problem there has been a call for a global initiative to introduce laws that expose this threat with the need to facilitate change towards the direction that the world is taking that will cause this threat to grow.  From discussions that involve a call to collective actions different nation states around the world have begun to implement legislative measures to cut their respective CO2 emissions in this regard.  This collectivist idea is similar in theory to what the aboriginal people have been in practice with for many years; that it is the people’s responsibility to work in harmony with the earth.  Unlike the aboriginal people who have a time-honored tradition of respecting the earth, the post industrialized world has many different obstacles to overcome before we can expect radical change to occur.

 

The EU initiative

 

Leading the way towards this change is an effort by different nations states that include the EU.  This push is for the mitigation of the amount CO2 or Carbon emissions that the world produces to offset the effects of global warming.  A view shared by various nations states including the representatives of the EU is that the earth is heating up.  The rate at which this is happening is ringing alarm bells for a fear of changes to the world landscape that would be detrimental or catastrophic for different geographical areas of the world.  The idea is to bring CO2 levels that are emitted into the atmosphere down to curve the effects of global warming. “The current level of global warming is at about 1.1º C warmer relative to the beginning of the Industrial Revolution. The current concentration of greenhouse gases amounts to approximately 401 ppm. Human-induced CO2 emissions continue a global level and over the past decades, the global CO2 emissions have increased by 2% annually, which is why global warming continues unabated. There has been a consensus in the climate science community and the world community for some time that the global temperature should not exceed 2º C. If the concentration of greenhouse gases has not exceeded 450 ppm in the year 2100, there is a reasonable chance that this 2º C target will be achieved. However, the insight has developed over the past few years that a safe temperature rise should not exceed 1.5º C, which comes with a lower ppm level, namely 430 ppm”[3].  The recognized problem is that at the current rate of emissions the target set by nations states will not be met, and this has caused concern for what the future may hold for the future generations.  Potential results of the polar caps melting are that water levels may rise causing costal towns to be obliterated, a rise in hurricanes may ensue that would cause massive inland devastations and with a rise in temperature different unindustrialized areas would be hit with drought hindering the production of food crops.  These are just some of the resulting effects that would be felt around the world.  There are different types of green house gasses that are a cause of this ‘climate change’ but the major concern is of CO2.

 

For quite some time there has been a push by the EU for its members to mitigate CO2 emissions. Different United Nation conventions have been drafted since the 1990’s, where each set out targets of global green house gas reduction goals for different countries.  Through out these years agreements have also been drafted such as the Paris accord (Paris conference in 2015) where signatory countries have agreed to reach these targets.  As one of its signatories the EU, the “European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990. The European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990.”[4] These targets were set in accordance with the Paris accord in reaching a goal of not exceeding the 2 percent global warming target. In recognition that a current significant reduction is required to not exceed this target.   Some member states have higher outputs of CO2 compared to others. As such the reduction targets for each member state is different.  The idea is for all members states to work together to reach this common goal of cumulative reduction by these set dates.

 

Over the years reports have been created by NGO groups along with the UNEP and UN who work in unison within the EU towards curving the effects climate change.  They contain estimate measurements of the differing amounts of CO2 emitted by various member states over certain periods. The aim is that these reports can help nations states to regulate themselves.  According to the UNEP, from “2010, the UNEP has issued annual reports about the so-called ‘emissions gap’, the difference between the desired emission level in a certain year and the reduction targets to which the countries concerned committed. In the 2013 report, UNEP notes, for the third time running, that commitments are falling short, and that the emission of greenhouse gases increases rather than decreases. The UNEP concludes that the emission targets of the Annex I countries combined are not enough to achieve the 25-40% reduction in 2020, deemed necessary in AR4, and that therefore it is becoming less likely that by 2020 the emissions will be low enough to achieve the 2º C target at the least cost.”[5]  Problematically, the UNEP recognizes that certain nation members are not meeting their respective targets, more drastic reduction targets may be necessary to reach these timelines.  As a result, different groups that include citizens have taken their concerns to Court seeking their right to redress of grievances concerning their respective governments falling short of these goals.

 

Particular attention has been drawn to the landmark case involving the Netherlands who were taken to court by a foundation named Urgenda (urgent agenda). This foundation is a platform for various citizens of the Netherlands with the common goal of developing plans to mitigate climate change. It has been reported that the Netherlands “has a relatively high per capita CO2 emission compared to other industrialised countries. In terms of emissions, the Netherlands currently ranks 34th of 208 countries. Of the 33 countries with even higher emissions, only nine have a higher per capita emission, and not even one is an EU Member State. Of the total of greenhouse gas emissions in the Netherlands, 85% are CO2 emissions, largely generated by the energy sector. CO2 emissions have hardly dropped in the Netherlands since 1990 and have even increased over the past few years”[6]  For the first time ever a coalition of citizens has taken their respective government to court concerning their role in climate change reduction.  In 2015, Urgenda took the Netherlands government to court in the Hague to pressure them in reducing their greenhouse gas emissions and was successful.  Holding up under appeal the Court found that the Dutch government had to increase their efforts to reduce their emissions to at least a 25 percent target.

 

The Netherlands as part of the European Union is subject to their commitment to combating climate change.  The treaty on the functioning of the European Union or TFEU that describes the powers of the Union, includes a commitment to the environment.  According to “Article 191 TFEU contains the environmental objectives of the EU (cited in legal ground 2.53 of the judgment). To implement its environmental policy, the EU has established many directives, including the so-called 2003 ETS Directive (Directive 2003/87/EC), subsequently amended (see legal ground 2.58 ff. of the contested judgment). Article 191 TFEU contains the environmental objectives of the EU (cited in legal ground 2.53 of the judgment). In order to implement its environmental policy, the EU has established many directives, including the so-called 2003 ETS Directive (Directive 2003/87/EC), subsequently amended (see legal ground 2.58 ff. of the contested judgment).”[7] Directives have been handed down over the years where all of its members have agreed to commitments to the environment. It is generally understood that the there are certain commitments that its member states have committed to over timelines that have either have not or have met certain goals of green house emission reductions all to keep a 2 percent target in reach.

 

The Urgenda case

 

The successful outcome of this case in the Netherlands was based on a novel idea.  The claimants were an organization located in the Netherlands that were advocates for the support and perpetuation of new innovations to ‘cure’ the threat of climate change.  According to the Urgenda website they’re goal is “for a fast transition towards a sustainable society, with a focus on the transition towards a circular economy using only renewable energy. It works on solutions for this transition, including for example the introduction and realization of ‘energy neutral’ houses and the acceleration of electric mobility. Urgenda views climate change as one of the biggest challenges of our times and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations”[8].  The claimants argued that the Dutch government had an obligation to its own citizens to reduce all green house gas emissions. Legislation passed by the Dutch government.  They advocate for ways to reduce and eradicate the recognized issue that the global warming is a problem of the world not just the Netherlands.  They are best known for their success in forcing the Dutch government to reduce its CO2 emissions.

 

 

Urgenda, is an activist foundation.  As such they took it upon themselves to secure the resources to enter this fight with their government who they believed were not doing their part.  The Entire argument was based on the claim that the Netherlands had an obligation to its citizens to reduce its CO2 emissions.  “On 24 June 2015, the District Court of the Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The ruling required the government to immediately take more effective action on climate change”[9]  According to Urgenda “up to 2011 the Netherlands had taken as a starting point its own formulated reduction target of 30% by end-2020. This was then reduced to an – EU-wide – reduction target of only 20% by end-2020, apparently due to tough political decision-making. However, the State failed to specify any scientific (climate science) arguments for this reduction. Meanwhile, the Paris Agreement has been established, in which the Netherlands has committed to achieve a reduction of greenhouse gas emissions to stay well below the 2° C limit for global warming. The Netherlands also expressed its intention to aim for a global warming limit of 1.5° C and called for a strengthening of reduction efforts up to 2020”[10].  The idea is that the Dutch government has lowered its standards from a 30 percent to a 20 percent reduction, which is why Urgenda decided that they needed to act.  The entire argument was predicated that through the States lack of commitment that they have contravened Articles 2 and 8 of the ECHR.  Each member state is a signatory to the ECHR or European convention of Human rights. The novelty of the Urgenda case is that they argue that the inaction of the Dutch government to make a substantial commitment to reduction by 2020 they have contravened these two sections of the ECHR. Essentially all members of the European union have a obligation of commitment to the ECHR. According to the convention “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”[11]

 

The two arguments made by Urgenda were a unique interpretation of both articles 2 and 8 of the ECHR.  It was an attempt to integrate the threat of climate change to a positive obligation of the government to protect its citizens from a threat to their life and way of life. According to Article 2 it stipulates among other things that “Everyone’s right to life shall be protected by law.” The idea posed by Urgenda was that if an environmental hazard threatens the life of the citizens of Netherlands, then it infringes on this article[12].  Article 8 stipulates “Everyone has the right to respect for his private and family life, his home and his correspondence.” And that their will be no interference with this from a public authority” [13]  The idea is that this right to family life also embodies the “right to be protected from harmful environmental influences of a nature and scope that is serious”[14]  Both arguments made by Urgenda indicate that the Dutch government through their failure to meet its target to reduce CO2 have placed their citizens in jeopardy.  But what if those CO2 targets are not met by other nation states, then no matter what the Netherlands do the threat to its citizens remain.  The Court has therefore found it necessary to find the Netherlands in breach of their obligations despite whether the threat of global climate change is curved or not. In other words, the court is basing their judgment on the potential threat posed by the Netherlands not doing their part by meeting their goals.  Redress was granted to Urgenda by the court for a nation state not working collectively.  Similarly, the aboriginal culture has this argument that we must work tighter and that failure to work collectively will result in a failure to realize our common goals.  

 

Court: (positive vs negative obligation by ECHR)

 

The court found that their existed a positive right on the Dutch government that involves both section 2 and section 8.  That the government had an obligation to act.  According to the court “the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life.”[15]  Both articles of the ECHR include an interpretation that the government had a positive obligation to take action to protect the rights of its citizens.  A negative obligation would require the government to refrain from acting to interfere with these rights.  The court found that the Dutch government having the power to act; must act to mitigate the damage of climate change to a target of 25 percent reduction.  An examination by the court included whether it was within the states power to reasonably prevent this from happening that included the accepted facts that the threat from climate change was real, The ECHR is strong legislation that supports finding both from a positive and a negative obligation on its signatory governments.  This determination of the court was upheld on appeal.

 

Boso v Italy and

 Valentin Campeanu v Romania

 

The ECHR-KS (the courts knowledge sharing platform) publishes various guides that help explain the workings of each article in the Convention on Human Rights.  The guide clear outlines previous case law that supports both a negative and positive obligation under article 2 of the ECHR is imposed on member states.  According to this guide of the ECHR article 2 “contains two substantive obligations: the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions (Boso v. Italy (dec.), 2002)[16].  Having regard to its fundamental character, Article 2 of the Convention also contains a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb (Armani Da Silva v. the United Kingdom [GC], 2016, § 229).”[17] In Boso v Italy 2002 cites two earlier cases supporting this, the L.C.B v the united kingdom 1998 and the Osman v The united Kingdom 2001.   Contextually this positive right has never been utilized before to enforce climate change initiatives before Urgenda.  This may never have been envisioned by its drafters or of those who are signatories to it; that it would be used in this manner. 

 

 

Prior to Urgenda, Article 2, of the ECHR the right to life, was utilized to claim protections in circumstances involving the abuses of inmates, abortion rights, health etc.   For example, in the case of Boso v Italy 2002, the issue was that the right to life of an aborted fetus. Interestingly, in this case the court chose not to answer this question as to whether a fetus has the protection of life under what stage of gestation.  According to the court at issue was the balancing of the legislation; that “such provisions strike a fair balance between, on the one hand, the need to ensure protection of the foetus and, on the other, the woman’s interests. Having regard to the conditions required for the termination of pregnancy and to the particular circumstances of the case, the Court does not find that the respondent State has gone beyond its discretion in such a sensitive area (see H. v. Norway, no. 17004/90, Commission decision of 19 May 1992, DR 73, p. 155)”  In its decision, the court found that the state conducted itself reasonably since abortion is legal in Italy.  The issue was to what degree a state may owe either a positive or negative obligation to a particular claimant basing their analysis on what the court found as an appropriate response to the given circumstances.  In this process the court set out to determine the proper balancing of competing rights that of the mother and that of the unborn fetus.  To conclude the court found that the government was reasonable in their attempt to weight the interests of both and as such found in favor of the respondent government.

 

 

In another example with Article 2 engagement was with reference to the Romanian governments health care system.  The case was the center for legal resources on behalf of Valentin Campeanu v Romania 2014.  This case involved the proper care and protection a state must provide citizens in need of that care.   Briefly the case involved an individual, Mr. Campeanu, who was in orphanages and care homes all his life, later suffering from HIV and having been determined to have a low IQ.   Months prior to his death it was discovered that he was not well cared for by the government institutions where he stayed.  This prompted a criminal complaint being logged against the institution where he later died.  As in Boso v Italy 2002, the court was asked to determine reasonability of state action.  In this case it was to be determined as to what degree of care is owed by the state under their care.  According to the court “positive obligations under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake.”[18] Further the Court adds that “the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances”[19].  Interestingly the court found that this obligation extended to a complete and thorough investigation into the circumstances surrounding the care of the patient.  According to the court “ the Court concludes that the authorities have failed to subject Mr. Campeau’s case to the careful scrutiny required by Article 2 of the Convention and thus to carry out an effective investigation into the circumstances surrounding his death  the Court concludes that the authorities have failed to subject Mr. Campeau’s case to the careful scrutiny required by Article 2 of the Convention and thus to carry out an effective investigation into the circumstances surrounding his death”[20] So it was not only the courts which recognized that they had to carefully scrutinize the circumstances surrounding the death of the patient. What is interesting in this case is that Article 2 by its nature compelled all state authorities to act in this manner, to conduct a thorough investigation.  A positive obligation was on the government to act responsibly towards people in their care and this involved when issues of neglect were commenced against them that they had an obligation because of their duty of care to further conduct a fair and open investigation into the circumstances surrounding the allegations.  This case in comparison to Boso shows that a positive right can be imposed on the government that mandates proper procedural fairness.    

  

Kroon Case:

 

The right to the protection of the family is defined under Article 8.  According to the Guide by the ECHR article 8 main purpose “is to protect against arbitrary interferences with private and family life, home, and correspondence”[21]. This obligation is also of the classic negative kind, as described by the Court as the essential object in Kroon and Others v. the Netherlands 1994[22].  However, Member States also have positive obligations to ensure that Article 8 rights are respected even as between private parties. In particular, “although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life.”[23]  It is not clear whether governments would be required to promote a way of life because to respect family life would seem to only mean that governments had a negative obligation not to interfere arbitrarily with it.  In Kroon, the court noted that “There may in addition be positive obligations inherent in effective "respect" for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, mutatis mutandis, the above-mentioned Keegan judgment, p. 19, para. 50)”[24]  What types of obligation either positive or negative will depend on that respect that is owed but, respect here is defined as a degree of recognition. As in this case the recognition was that the state must recognize that a family may exist out of wedlock and the court confirmed that a child is part of that family unit from the day they are born.  So, the degree of respect for family life would be judged on a case-by-case basis that the state owes but clearly that recognition by the state will not clearly be defined as either owing a positive or negative obligation.  In this case it was that the state had an obligation to allow, thus not interfere with a child’s integration into a family.  This case shed light on how the ECHR can find both a positive and negative obligation on the state in comparison to our article 2 analysis above.

 

 

Reduction targets

 

Turning back to the Uganda case the Court in the Hauge determined that the Dutch government had a positive obligation to meet a sufficient reduction Target.  The purpose of the Eu directive is to eventually have a full stop all green house gas emissions. A timeline for this was set by the leading mandates in the latest rounds of the Paris Accord.  This was an agreed statement of facts by both parties in the Uganda that the “end goal is clear and is not disputed between the parties. By the year 2100, global greenhouse gas emissions must have ceased entirely. Nor do the parties hold differing opinions as to the required interim target of 80-95% reduction relative to 1990 by 2050. And Urgenda endorses the reduction target of 49% relative to 1990 by 2030, as established by the government”[25].  What was in dispute was the reduction of the target by the Dutch government.  According to the Court what was in “dispute between the parties focuses on the question if the State can be required to achieve a reduction of at least 25% relative to 1990 by end-2020.”[26].  It was just a 5 percent difference; that by 2020 the state aimed for 20 percent while Urgenda hoped for at least a 25 percent reduction.  Ultimately, the Court ruled in favor of the 25 percent reduction in favor of Urgenda. On appeal the ruling was upheld. The effects of a 5 percent difference are potentially huge, but it was made clear by the court that the state had an obligation under the ECHR with respect to the threat of climate change.  The expectation after the trial was that the Dutch government would ultimately abide by this ruling.  Unfortunately, this did not happen, but the case itself showed the world that litigation in the sphere of climate change was possible.  This ripple effect had far reached affects in Canada, but litigants could not utilize the ECHR and had to find ways under the Charter of Rights and Freedoms to be successful. Many litigants have already tried and failed but there is one on going battle that will be heard on its merits some time in the not-so-distant future.

 

Urgenda Case

 

A coalition of citizens in Ontario Canada is currently trying to achieve the similar results as Uganda in Mathur v Ontario 2024.  Similarly, the case is arguing against the most recent legislation the Ontario government attempts to reduce its goal for carbon emissions from a target that it initially set. According to the pleadings “The Cap-and-Trade Cancellation Act (CTCA) was enacted by the province of Ontario in 2018. It repealed the Climate Change Mitigation and Low-Carbon Economy Act, which had established an emission reduction target of 37% below 2005 levels by 2030 in the province, and implemented a revised target of 30% below 2005 levels by 2030.”[27]  The actions of the province to reduce its Target by 7 percent may have been what initially started the action but it is unknown if this was the igniting factor. The problem is that the target that was implemented by Ontario was below what was recommended by its own legislation and “according to the unchallenged expert evidence filed that the application judge accepted, falls short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change”[28]   It may very well have been initiated regardless of the reduction, but it gave the plaintiffs a more solid grounding for case.  The implementation of a target, coupled with the governments action to reduce its target provided argumentation that this 7 percent reduction could cause a section 7 and 15 Charter infringement. Unlike the Uganda case the court of appeal found that this case was not about a positive right or obligation. The applicants were asking or seeking for “They seek an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.”[29] The issue before the court was whether the Ontario legislation by reducing the reduction of CO2 from its initial target thereby infringed on both sections 7 and 15 of the Charter.  But, before this issue of whether a charter infringement existed and whether it was a justified limit under section 1 could be answered the government filed a motion to strike the application. 

 

Initially, the respondent government of Ontario was successful on their motion to dismiss.  Under section 21 of the rules of civil procedure the court may dismiss a case where it had no real prospect of success for lack of its justiciability. According to Section 21 of the civil procedures act Ontario states that:

“To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.  R.R.O. 1990, Reg. 194, r. 21.01 (1).”[30] 

The Superior Court of Ontario found that it was involved in issue in deciding whether the government had a positive obligation to the applicants[31].  This was based on their interpretation of the evidential record and to date the courts in Canada have not acknowledged any positive obligation or right that exists on Charter rights.  Entirely different from matters concerning the ECHR involving members of the EU.  Initially, the Courts dismissed the matter at the superior court and the applicants appealed.  The lower court added to their ruling that the issues raised were not justiciable for being ‘too political’ in nature.  Reversing the lower courts decision, the Court of appeal found that the case did not involve any issue regarding positive rights only a question of whether specific legislation.  Finding that the matter was justiciable because specific legislation was being questioned and not the entire scheme of how the government tackled the climate change problem.  Therefore, the issues before the court were not ‘too political’ in nature for the courts to be the proper forum to decide the legitimacy of the Ontario legislation.  At this time the matter is still waiting to be heard on its merits.

 

 

The Charter and the ECHR are not only two entirely different sets of legislation in different parts of the world, with different jurisdictions, each imposes different obligations on respective governments.  One clear difference is that the Charter does not impose a positive obligation while the ECHR imposes both.  In Canada where the Charter has its jurisdictional boundaries, despite the Courts reluctance, the door is not entirely closed for future litigation where the Charter may impose a positive obligation on the government.  In the case of Gosselin v Quebec 2002, the concept of the Charter imposing positive rights being on government was noted by the Court.  The case involved the differential treatment of social benefit recipients from different age groups who invoked both a sections 7 and 15 infringements.  With the focus being placed on the potential of section 7 invoking a positive obligation on government, according to the Court the “appellant argues that the s. 7 right to security of the person includes the right to receive a particular level of social assistance from the state adequate to meet basic needs.  She argues that the state deprived her of this right by providing inadequate welfare benefits, in a way that violated the principles of fundamental justice”[32] The argument criticized the overall welfare scheme in Quebec.  According to the sole dissenting judge L’Heureux-Dubé J, section 7 “does not grant a right to security of the person, full stop.  Rather, the right is protected only insofar as the claimant is deprived of the right to security of the person by the state, in a manner that is contrary to the principles of fundamental justice.  The nature of the required nexus between the right and a particular state action has evolved over time.”[33] So, there is no positive right attached to section 7 but according to the majority they are not completely ruling out that in the future an argument will be made in favor of a positive obligation being placed on the government but this case does not support such an analysis.  According to the majority, that in the future “section 7 may be interpreted to include positive obligations.”[34] Here clearly the Court is signalling that in the future arguments may sway the Court in this direction.  Unfortunately, the Courts did not specify any specific way that this may be achieved.  They did not hint at a favorable example where section 7 may play a role in positive right obligations.

 

Positive Rights under the Charter

 

Legal scholars have wrestled with this issue of how the Charter maybe be interpreted as imposing a positive obligation on the government.  In an interesting paper by Vannessa MacDonald entitled The Protective Function and section 7 of the Canadian Charter of Rights and freedoms discusses third party infringement under sec 7 forcing the government to act discusses this issue.  According to Vannessa MacDonald, section. 7 of the Charter as “the protective function would require the state to secure individuals against deprivations of their interests in life, liberty and security of the person, usually by enacting appropriate legislation.  Of course, in many cases, existing law would go a long way toward securing these interests”[35] The argument would have the government engage in protections particularly in cases involving environmental concerns.  The argument is laid out that by the very nature of the governments function it is their responsibility to support a safe environment.  This she argues is captured in the meaning of section 7 the right to life.  She argues that to interpret section 7 otherwise would relieve the government of its primary function as a responsible government body leaving its citizens without recourse when the government refuses to act responsible.  

 

Similar arguments are made by David Boyd.  An associate professor at the university of British Columbia and environmental lawyer, Mr. Boyd advocates for the existence of a positive obligation under section 7.  In his essay entitled the right to a healthy environment “litigation by way of section 7 is the most practical means to achieve this goal, due to the provision’s broad phrasing.  In doing so, section 7 certainly has potential to protect environmental rights for certain groups which are at the heart of environmental justice”[36] His man argument is that in conjunction with a section 15, the particular argument can be successfully made.  By recognizing that certain groups such as aboriginals have been disadvantaged by the entire scheme of government actions as it relates to a lack of protections afford to them by government their section 7 right to life has been infringed upon.  The values under section 15 and encapsulated by the values of section 7 and therefore place the government in the position of having to act as the only form of relief.  As in Vannessa’s argument, although more expressly put, a group that has been discriminated against in this manner to have such essentials of life being ignored by the government can only be given redress by government action, otherwise without government influence the discrimination continues. It is the discriminatory effect of the government that has supports the depravity of the essentials or most basic needs of life. 

 

The added twist to legal arguments that would impose a positive obligation on governments to act is section 15.  This seems at first glance to have the ability to get around the courts reluctance to recognize a positive obligation on government by utilizing the Charter. According to the Charter, section 15 guarantees that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[37]  The court has recognized that by the very wording of this section it may, depending on the circumstance, support a positive obligation on the court.  In Haig v Canada 1993, Justice L’Heureux-Dubé J stated that “a government may be required to take positive steps to ensure the equality of people or groups who come within the scope of s 15”[38]  The same justice who spoke out against a positive obligation being available under s 7 in Gosselin strikingly finds that the wording of section 15 to place a positive right. This full reversal of opinion may show that in conjunction with the arguments for sections 7 and 15 together, the court may be open to this suggestion.

 

This argument is expressed by Madiha Vallani in her paper Sections 7 and 15 of the Canadian Charter of Rights and Freedoms in the Context of the Clean Water Crisis on Reserves: Opportunities and Challenges for First Nations Women 2018.  She argues that aboriginal women are a prime example to support this argument for a positive obligation utilizing both sections 7 and 15 together.  According to Madiha the purpose of sec 15 “The purpose of section 15 is to uphold substantive rather than formal equality, and this has long been the judicial interpretation.”[39] In the case of Andrews v Law Society of British Columbia was the very first case in which the Supreme Court of Canada (“the Court”) scrutinized section 15 and stated that substantive equality[40].   Madiha argues that the proper interpretation of section 15 as expressed in Andrews “entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.”[41] This substantive understanding along with the prima facie test for discrimination in Andrews would inevitably support a positive obligation on the government. Clearly, she points out that aboriginal women would fall under section 15 as a enumerative group and that the depravity of clean drinking water is so essential to life compliments section 7. 

 

Vallani’s argument advances the idea that there is a corrective nature inherent in the wording of section 15 of the Charter. The idea is that if a group of citizens is to be providing clean drinking water, then it only seems logical that the government is the one to correct it.   Section 15(1) of Charter’s aim or purpose is to correct and inhibit discrimination against certain groups who are “suffering social, political and legal disadvantage in our society.”[42]   She argues that it is the main function of the Court to consider “for substantive equality involves analyzing the impact of the impugned law on the distressed group. Substantive equality aims to confront the causes of inequality, rather than treat every person equally. It recognizes that treating everyone the same way can sometimes perpetuate discrimination and therefore should not be the purpose of the equality provision”[43] In Andrew the court pointed to a four-part test under section 15 used to determine in a prima facie infringement had occurred. According to the court in Andrews “as to the meaning of s. 15(1) were substantially agreed with in so far as relevant to the question of whether the impugned provision amounted to discrimination based on "irrelevant personal differences" such as those listed in s. 15, must be discriminated upon by irrelevant differences so ones that do not matter and are thus the ones listed under section 15 of the Charter and the Human rights tradition”[44]  The court found that the focus of section 15 was how the law is applied and thus its impact on the disadvantaged group. In Mathur specific legislation was under attack according to the Ontario Court of appeal making it justiciable.  Thus, the arguments expressed by Madiha, Boyd and Vanessa all may fall short for justiciability if the court finds that these arguments involve the entire policy of how the government handles a particular issue. 

 

Alternative arguments:

 

Another avenue that may be explored for bringing Charter challenges against policy concerns of the government is through third party actors.   This was clearly outlined by the Ontario court of appeal 1986 in Lavigne that by extension some private entities may be subject to the Charter.  The trial judge noted that the Charter does not apply to private activity but by s, 32 it applies to, inter alia, ''the legislature and government of each province in respect of all matters within the authority of the legislature of each province". It was his opinion that the Charter applies to actions of Crown agencies in certain cases. He held at p. 479 “that: . . . governmental action does include the entering into of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar. To hold otherwise would be to permit "government", as identified in s. 32(1) of the Charter, to impose terms in a contract that it could not impose by statute or regulation because they breach the Charter.  Such an arrangement would defeat the purpose of the Charter” The scope of what may be considered government action is open for debate on a case-by-case basis.  Applicants hoping to deal with these issues of social justice such as climate change, homelessness or other environmental concerns may seek to address actions implemented by these other agencies.  Potentially the argument that maybe explored further are delegates of a minister who have created through different acts and regulations certain responsibilities to other actors.   Indirectly, a person designated to create policy may become the subject of litigation.  This paper is too short to explore these possibilities but notes that their maybe other less direct avenues to be explored.

 

To perform this balancing act between competing rights and interests the courts will be structuring the norms of society.  These norms are to reflect the will of the people in abstract terms, but it is questionable if the Courts can capture this especially when Charter issues are raised.  According to Beverly McLachlin in her essay Equality: The Most Difficult Right 2001 this balancing “raises the question of whether the courts can capture the complexity of social life in a way that permits them to make the best decisions. At a more abstract level, who should be making fundamental decisions about the kind of society we have — the legislatures or the courts?”[45]  The performance of the courts in attempting to balance competing interests and rights is the proper role of courts.  It was evidenced in the cases involving the ECHR in Boso, Valentin capeau v Romania as it related to s 2 arguments.  Further it was evident from the cases involving s 8 in Koon v Netherlands. Form the Canadian perspective courts managed to balance the interests in Gosselin v Quebec on social assistance and in Andrews v Law society regarding fair treatment for lawyer licencing.  In each of these cases the courts examined government actions or inactions in relation to the rights of the individuals or groups involved.  What McLachlin is point out is that the repercussions of these decision reverberate into the social fabric of society.  Whether a positive or negative obligation is placed on the government will not change this fact.  From the Canadian perspective the reluctance of the Canadian courts to impose a positive obligation on the government may not represent the interests of people of Canada to secure those rights guaranteed under the Charter.  


Conclusion: 

 

It may be that the legislatures are either reluctant or incapable at times to capture the complexities of social life and it is only the Courts that can rectify these issues.  An aspect of Canadian constitutional litigation that this paper has touched upon is that the courts are reluctant to answer questions they find as ‘too political’.  From this angle the courts will determine if a charter challenge can be founded on legislation so that it is worthy of constitutional litigation. In the alternative if a claimant or applicant has argument that is too broad and seemingly is challenging the entire policy of the government then the courts will refuse to engage.  The problem with this methodology is that it assumes that a policy or scheme that the government undertakes cannot infringe a Charter right.   According to Chalifour in their paper environmental discrimination 2015, the problem for litigants is “largely because there is no specific law or legal framework that has caused the alleged differential treatment (central to section 15)”[46]  As we have seen in Mathur and in Tanudjaja issue of Climate change and homelessness are broad issues.  But the government has acted in certain ways addressing them. So then the question is, as was the case in Tanudjaja and in other Climate change cases that went before the court can the courts be justified in not answering these broad issues if they are of central concern for rights of groups or individuals under the Charter?  This paper is too short of a project to attack this question, but it is worth pointing it out as another area of exploration.  When broader governmental implications infringe on the Charter and Courts are reluctant to address it the role of the Courts as gatekeepers of these rights entrenched in the Charter or citizens civil liberties then their ability to do so becomes questionable.  

 

 


[1] Education for a Sustainable Future: A Resource for Curriculum Developers, Teachers, and Administrators (Manitoba Education and Training, 2000) P 2 https://www.edu.gov.mb.ca/k12/cur/socstud/frame_found_sr2/tns/tn-41.pdf)

 

[4] Ibid P 3

[5] Ibid P 6

[6][6] Ibid P 8

[7] Ibid, P 7

[8] See, Website for Urgenda Foundation https://www.urgenda.nl/en/home-en/

[9] Ibid

[11] Convention on Huiman rights ECHR copy from original https://www.echr.coe.int/documents/d/echr/convention_ENG)

[13] Convention of Human rights ECHR copy from original https://www.echr.coe.int/documents/d/echr/convention_ENG) P 10

[15] Ibid., P 12

[16] Boso v Italy 2002 App. No. 50490/99, Eur. Ct. H.R. 846 (2002)

 

[18] In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania 2014 para 130

[19] Ibid para 131

[20] Ibid para 147

[21] Guide to Article 8 ECHR

[22] Koon and others v The Netherlands ECHR 1994

[24] Koon and others v The Netherlands ECHR 1994 Para 31

[25] Uganda case 2018

[26] Uganda case 2018 appeal P 13

[28] Ibid para 2

[29] Ibid para 3

[30] Courts of Civil Procedures Act Ontario  https://www.ontario.ca/laws/regulation/900194#BK181)

[31] Currently the Court does not recognize any positive obligations under the Charter of Rights and Freedoms unlike the ECHR.

[32] Gosselin v Quebec 2002 SCC para 75

[33] Ibid para 209

[34] Ibid para 82

[35] Vanessa Macdonald The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms p 7

[36] P David R Boyd, The Right to a Healthy Environment Revitalizing Canada’s Constitution (Vancouver: UBC Press, 2012 P 3 https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1001&context=llmp

[37] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 15(1) [Charter]

[38] Haig v Canada, Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995, 105 DLR (4th) 577 [Haig].

[39] Vallani, Madiha Sections 7 and 15 of the Canadian Charter of Rights and Freedoms in the Context of the Clean Water Crisis on Reserves: Opportunities and Challenges for First Nations Women 2018 P 19

[40] Andrews v law society of B.C.

[41] Ibid P  19

 

[42] Ibid, P 19

[43] Ibid p 19

[44] Andrew’s case

[45] 2001 Equality: The Most Difficult Right Beverley McLachlin P.C. P 20

 
 
 

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