Youth vs. Government: The Charter Battle Over Climate Change Moves to Canada’s Highest Court

There have been some important developments in the climate change-based Charter claim brought by seven Ontario youth in Mathur v. Ontario.

We have reported on this case as it has worked its way through the legal system – from an early motion to strike to the recent Court of Appeal decision last fall.

Now, this case is making its way to the Supreme Court of Canada. Ontario filed an application for leave to appeal on December 16, 2024. The youth Applicants have responded and filed a conditional application for leave to cross-appeal.

The Supreme Court of Canada will decide whether or not it will hear the case (i.e. grant leave to appeal). In determining whether it will grant leave to appeal, it considers whether the case raises an issue of national and public importance. This could involve the interpretation of the constitution, a new issue of law, or resolving a dispute between provincial appellate courts.

In its leave application, Ontario argues that the Supreme Court of Canada should hear the case as it raises, for the first time, whether and to what extent the Charter of Rights and Freedoms imposes obligations on government to combat climate change. Ontario also notes that there are other courts in Canada (and across the world) that are currently considering this issue and it is important for the Court to weigh in now to provide guidance to lower courts.

Ontario argues three questions of national public importance raised by its proposed appeal, including:

1. Whether sections 7 or 15 of the Charter or unwritten constitutional principles require the government to combat climate change;

2. Whether the Charter requires the government to set a target that establishes a minimum level of reduced emissions where the government voluntarily establishes a target; and

3. Whether the Charter requires a particular process to be followed in establishing the target where the government voluntarily establishes a target.

The Ontario youth argue that leave should not be granted as the Court of Appeal simply applied well-established constitutional principles with respect to the distinction between positive and negative rights. If leave is granted, the youth argue that the appropriate remedy is also an issue of national public importance as there is an urgency, given the pressing dangers of climate change.

In their conditional application for leave to appeal, the Ontario youth argue that if Ontario receives leave to appeal, leave to cross-appeal should be granted on the issue of whether the Court of Appeal erred in remitting the case for a new hearing, rather than making rulings on the merits itself.

The Supreme Court of Canada has not yet decided whether to grant leave to appeal.  The materials have been submitted to the Court for consideration, so a decision will be made shortly. Although the test for obtaining leave of appeal to the Supreme Court of Canada is stringent, and leave is rarely granted, we predict that in the rare circumstances of this case leave to appeal and cross-appeal will be granted. The case involves a pressing social issue and important constitutional issues, including the distinction between negative and positive rights under the Charter. We will continue to report on this case.