Joanna Baron: Canada needs well-respected courts. Too bad they keep undermining their own legitimacy

Two recent decisions from Quebec and Ontario’s highest courts—dealing with the socially divisive issues of social benefits for asylum seekers and climate change, respectively—demonstrate the ongoing temptation of Canadian courts to tip into “discovering” positive rights in the Charter and dictate legislative policy.

Last week, the Ontario Court of Appeal released a decision on climate change, Mathur vs. Ontario, which opened the door to judicial declarations of minimum constitutionally viable climate policies. In 2018, Doug Ford’s Ontario government enacted the Cap and Trade Cancellation Act (CTCA), which repealed previous climate change legislation. The CTCA required Ontario to establish targets for reducing greenhouse gas emissions and to prepare a climate change plan. The target ultimately imposed by Ontario mandated a 30 percent reduction of emissions by 2030—an amount that falls short of “international scientific consensus,” according to the court decision. The appellants, seven young Ontarians, challenged the constitutionality of Ontario’s greenhouse gas emissions reduction target and climate change plan.

Their claim was rejected at first instance by a trial judge who recognized the claim for what it plainly was: a positive rights claim. Positive rights require the government to take specific actions or provide certain services to citizens. They encompass things like a right to public housing, or right to education. Negative rights, on the other hand, restrict government action and concern individual freedoms. Freedom of speech and religion are classically negative rights, as they require the government to stay out of spheres of protected individual action.^{1To use one example from the case law, the Charter right to free expression generally prevents the government from gagging you, but it doesn’t entitle you to a taxpayer-funded platform.}

The Charter is overwhelmingly a negative-rights document and was intended as such by its founders. There are some notable exceptions like the right to vote or the right to an interpreter, which are positive. But judges have been subtly and not-so-subtly “discovering” positive rights in sections that are generally understood to only provide for negative rights.^{2One of these is section 7, the guarantee of “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In 1995, a woman named Louise Gosselin failed in asserting a positive right to public housing. In her case, the Supreme Court of Canada held that s. 7 of the Charter has not yet been interpreted to “place a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person,” although they did not rule out its future application.}

Another section aimed at by positive rights proponents is section 15(1), the equality guarantee. In 2022, the SCC confirmed in Sharma that “s. 15(1) does not impose the general, positive obligation on the state to remedy social inequalities or enact remedial legislation.”

In this case, the Ontario Superior Court judge was clearly correct in finding that the Ontario youth appellants’ assertion that Ontario was constitutionally bound to a particular threshold of carbon reductions was a positive rights claim, enjoining the government to a specific course of action and inviting judicial nitpicking about acceptable thresholds for carbon.

The Ontario Court of Appeal rejected this, however. The Court instead found that when it enacted environmental legislation, Ontario “voluntarily assumed a positive statutory obligation to combat climate change” and thus was bound to do so in a way the judges deemed constitutionally compliant.

To bolster this assertion, the Court refers to Chaoulli, a 2005 Supreme Court of Canada decision finding that Quebec’s ban on private health insurance was unconstitutional because it violated Quebec’s version of security of the person. The decision did not find a positive obligation under the Charter for the government to provide health care. Instead, it found the government could not arbitrarily block people from taking matters into their own hands and paying for insurance when they’re suffering in pain on long public waiting lists. In Chaoulli, the relief granted was of a negative nature—the government simply had to stop fining those who chose to seek private care and who were suffering as a result of those laws. In Mathur, contrarily, the relief sought is a particular threshold of carbon reduction—a quintessential positive rights claim.

The decision leads to several absurd conclusions. One is that, according to the court’s reasoning, Ontario could simply do nothing to address climate change with no constitutional consequences—and yet it could be found to be in violation of the Charter if it legislates and does not set a target high enough to meet some supposed scientific consensus about what that target ought to be.

The second is that, while constitutional remedies in previous section 7 cases have at least notionally addressed the harm in question—allowing safe-injection sites so that drug users can access clean needles in the Insite case, or allowing sex workers to hire security to avoid battery in Bedford— here, nothing Ontario could do would stop the harm. Even if Ontario were to commit to net-zero carbon emissions today, the harms caused by rising global temperatures would continue to be created by other countries that produce the vast majority of emissions: the U.S., India, and China.

The second case based on a disguised positive rights claim is headed to the Supreme Court of Canada soon and concerns irregular border crossers and the social entitlements they may claim. Cibubuabua Kanyinda arrived in Canada from the Congo via Quebec’s infamous Roxham Road border crossing. She was given a work permit while her asylum claim was being assessed and requested a subsidized daycare spot for her children from the Quebec government. However, the Quebec program reserves access to this service to individuals whose refugee status is formally recognized by Ottawa and not to those who are awaiting a decision.

When her request was refused, Kanyinda sought a judicial declaration that the policy was discriminatory and violated the s. 15 right to equality because it has a disproportionate impact on her on the basis of her sex. The Quebec attorney general held that the exclusion from subsidized daycare was made not on sex but on immigration status, which is not an analogous ground of discrimination. The lower court found there was not enough evidence to make out a s. 15 claim, without sufficient evidence about male and female irregular border crossers and whether they bear primary responsibility for child care.

However, the Court of Appeal reversed this decision, finding that the ineligibility for subsidized daycare presented an additional obstacle to integration into the labour market that disproportionately affects women who wish to work and so constituted adverse-impact discrimination.

The case, which was granted leave by the Supreme Court of Canada, would seem to expand existing equality jurisprudence into ever-more unwieldy territory. Expensive social programs like Quebec’s $5-a-day-daycare are only financially possible to the extent they exist alongside strong delineations between those whose legal status entitles them to these programs and those who do not, i.e. Canadian citizens, legal immigrants, and recognized asylum seekers versus unrecognized asylum claimants. Expanding equality jurisprudence this far could leave it so unwieldy as to undercut governments’ abilities to pursue social policies at all.

At a moment when the viability of Canada’s extraordinarily permissive immigration program is being grappled with, judges presuming to dictate economic allocations about social entitlements would seem to present an additional burden to our stretched state capacity and undermine their institutional legitimacy.

Canadian judges must resist the temptation of dictating policy decisions that mandate positive rights under the Charter. These recent cases reveal the risks of overstepping into realms that should be left to legislatures, whose role is to balance competing public needs and resource limitations. By blurring the line between judicial interpretation and legislative action, our courts risk undermining their own legitimacy and limiting the government’s capacity to pursue policies. Over to you, Supreme Court.