The battle over climate policy has taken on a new face: that of children and youth fronting litigation demanding that courts of law require governments to take stronger action against climate change. The case of Mathur v Ontario is the most prominent example. Seven minor children and youths (including Indigenous youths) are challenging the Doug Ford government’s recent legislation (Cap and Trade Cancellation Act, 2018) that reduced Ontario’s greenhouse gas (GHG) emissions reduction targets. They claim the relaxed targets will enable dangerous levels of climate change, thereby violating their rights to life, security of the person and equality under the Canadian Charter of Rights and Freedoms.
The young applicants have asked the courts to declare that Ontario’s new emissions targets are too low, and to require the government to implement a “science-based target for the allowable levels of GHG emissions, consistent with Ontario’s share of the minimum level of GHG reductions necessary to limit climate change to the Paris Standard.”
On the surface, this may sound reasonable to some. Who, after all, would not want a clean and safe environment for our children and grandchildren? But dig a little deeper and serious questions arise – about the law, about the science, about who makes policy in a democratic society, and about the feasibility of what is being demanded.
Enforcing the Paris Agreement by Stealth
The Charter test case was launched by a team of seven lawyers representing a minor, Sophia Mathur, and six other unrelated children and youths, all of whom are strongly opposed to Ontario’s reduction of its emissions target. Their application argues that the new target effectively authorizes an overall amount of GHG emissions that will lead to deprivations of their Charter rights. The applicants’ expert witnesses reiterated what many courts, including the Supreme Court of Canada, have held: climate change poses dangerous and existential risks to the life and well-being of Ontarians and the world. The applicants submitted that this is sufficient to engage the life and security of the person interests protected under section 7 of the Charter.
In response, the Government of Ontario submitted that the application is unsuitable for adjudication in court and that it raises problems of proof as it rests on a chain of speculative assumptions about the future that have not been proven with evidence. The case was heard before Ontario Superior Court Justice Marie-Andrée Vermette in April 2023.
Starting young: In Mathur v Ontario, seven children and youths (top) are challenging the Doug Ford (middle) government’s legislation that modestly reduces the province’s greenhouse gas (GHG) emissions reduction targets, claiming it violates their Charter rights. At bottom, the lawsuit’s primary applicant, then-12-year-old Sophia Mathur (left), meets with Swedish climate activist Greta Thunberg in Washington, D.C., when she was given an award for being the first child in Canada to “strike” for the climate, September 2019. (Sources of photos: (top) Evan Mitsui/CBC; (middle) The Canadian Press/Laura Proctor; (bottom) Sophia Mathur/CBC)
The government didn’t squarely and fully address the factual underpinnings of the applicants’ case with its own expert witnesses. Justice Vermette was thus left free to agree with much of what the applicants argued, i.e., the prevailing orthodoxy regarding the risks, causes – and cures – of climate change. “By not taking steps to reduce GHG [emissions] 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,” she wrote in her judgment (paragraph 147).
The Mathur applicants seek to use the Charter to impose the provisions of the 2015 Paris Agreement on Ontario – but that agreement is non-binding, unenforceable and sets no actual requirements for countries to hit certain GHG emissions targets on a defined timeline. Shown at top, Mathur speaks at Queen’s Park in Toronto, March 2019; at bottom, global leaders celebrate the Paris Agreement at the 21st United Nations Climate Change Conference. (Sources of photos: (top) Joshua Ostroff/CBC; (bottom) State Department)
Despite this, she accepted Ontario’s legal position and denied the applicants’ requested orders. The applicants appealed and, on October 17, 2024, a three-judge panel of the Ontario Court of Appeal overruled the trial judge, holding that Ontario’s law must be Charter-compliant and sending the matter back for a new hearing. In May, the Supreme Court of Canada denied Ontario leave to appeal; no new Superior Court hearing date has yet been announced.
Mathur and her co-applicants are, in effect, trying to use the Charter as a means to enforce the provisions of the 2015 Paris Agreement on climate change (as they interpret them) in Ontario. This is a clever legal manoeuvre but is deeply problematic. The Paris Agreement is rarely read and widely misrepresented, especially by those who invoke it as a binding template for domestic action. In reality, it is not a treaty or even a contract to reduce emissions; nor does it impose any specific temperature or emissions target on its signatories. Its most widely cited goal is for signing countries to promise to reduce their GHG emissions in aggregate sufficiently to hold the predicted increase in average global atmospheric temperature by the end of this century to 1.5-2.0° C above “pre-industrial” levels.
But this “target” is an aspiration, not a binding commitment. There is no enforcement mechanism, no sanctions for non-compliance, and – crucially – no requirement for any signatory to reduce emissions by any particular amount or within any set timeframe. Each country sets and pursues its own GHG emissions reduction target. The Paris Agreement is very clear on all of this. In this light, the applicants’ attempt to have the courts force Ontario to act as if it were bound by the mythical “Paris Standard” is a deceptive strategy to overrule democratically enacted legislation, a costly requirement of no real benefit to anyone.
What is the Paris Agreement?
The Paris Agreement is a non-binding accord signed at the UN’s 2015 Climate Change Conference (COP21) in Paris, France. Among the Paris Agreement’s provisions, signatory countries promise to reduce their greenhouse gas emissions with the aspirational goal of limiting the global atmospheric temperature increase to 1.5-2.0° C above “pre-industrial” levels by 2100. Although the Paris Agreement is widely – and falsely – described as an international treaty, none of its targets are binding commitments. The agreement is not a treaty, has no enforcement mechanism and does not require specific emissions cuts, allowing each country to set and pursue its own climate policies. Environmental activists, however, use the Paris Agreement’s provisions in seeking to force policy changes on Western governments, such as more stringent greenhouse gas reductions.
Ontario’s Lacklustre Defence
In its submission, Ontario did assert that a complete cessation of its CO2 emissions would reduce global warming by only about 0.000092° C per year, and that the changes caused by such action would be unmeasurably small and vastly outweighed by emissions from other countries. On the law, it argued that in the absence of a constitutional right requiring it to act in the first place, there is no constitutional right to the continuation of measures voluntarily taken. It also argued that unless there is a constitutional obligation to enact a provision, the legislature is free to return the provision to what it was before the enactment.
Thanks at least in part to Ontario’s weak evidentiary approach, the case has already gone a lot further than it should have. The Charter is irrelevant to the entire issue because climate change is a planetary phenomenon, not a national let alone provincial one. Ontario’s actions cannot meaningfully affect the global climate and thus cannot remedy the applicants’ alleged harms. No-one has a constitutional right to compel their government to do something it can’t do.
Ontario’s GHG emissions don’t stay in or above Ontario, and the emissions from everywhere else on the planet don’t stay out of Ontario; greenhouse gases flow all around the Earth. Yet the Mathur applicants’ argument is that their Charter right to a clean and safe environment is threatened by Ontario’s revised emissions target.
Just why Ontario has been so unwilling to mount a full and effective defence, including with a team of experts contradicting the applicants’ experts on the merits of the matter at hand, is an uncomfortable question. The answer may lie in the politics of climate change. The evidence and arguments that would truly undermine the applicants’ case are, in today’s political climate, toxic. They run counter to the prevailing narrative and risk provoking accusations of “climate denialism”. Yet these responses are not only legitimate, they are essential for the court to reach any legally sound judicial decision about what Ontario can or cannot do about global climate change.
Ontario should have focused its defence on two flaws in the applicants’ case – flaws that should, in a rational world, be fatal to any claim of Charter breach.
The “CO2 Wall” Fallacy
Ontario’s GHG emissions don’t stay in or above Ontario, and the emissions from everywhere else on the planet don’t stay out of Ontario; greenhouse gases flow all around the Earth. Yet the applicants’ argument is that their Charter right to a clean and safe environment is threatened by Ontario’s revised emissions target. It provides that Ontario will reduce its emissions by 30 percent below 2005 levels by 2030, versus the old target of 37 percent below 1990 levels by the end of 2030. (The global target is even steeper: 45 percent reductions by 2030 relative to 2010 level which, in Ontario’s case, would mean cuts of 52 percent below 2005 levels by 2030, vastly steeper than the Ford government’s current policy.)
Politics trump facts: Ontario’s defence in the Mathur case has been half-hearted, perhaps out of fear that the evidence and arguments that would truly undermine the case would provoke accusations of “climate denialism”. (Source of photo: Edward Kimmel from Takoma Park, MD, licensed under CC BY-SA 2.0)
The applicants’ argument assumes that there is, in effect, an invisible “wall” (or dome) around and above Ontario, one that keeps GHG emissions from Ontario within Ontario, something like the accompanying ChatGPT-generated illustration depicts. And, by extension, keeps the rest of the world’s emissions out. Both of these assumptions are obviously absurd – as is the legal claim that rests on them.
Canada generates just 1.5 percent of global GHG emissions. The other 98.5 percent come from elsewhere – but are just as capable of affecting Canada’s climate as the emissions generated here. Ontario emits approximately 22 percent of Canada’s total, equating to 0.3 percent of global emissions. But atmospheric warming trends are determined only to a precision of about ±15 percent, making the climate impact of Ontario’s emissions below the limits of measurability. So if Ontario disappeared from the face of the Earth tomorrow, the climate would not be measurably affected anywhere on the planet.
Clearly, then, Ontario’s own emissions are not the cause of a changing climate in Ontario, nor of any risk to the life and security of Ontarians. The youthful applicants really ought to be looking elsewhere – mainly to the other side of the Pacific Ocean. Global GHG emissions are rising by about 1 percent per year, as major emitters like China continue to develop their economies and increase their use of fossil fuels, including coal. China, in fact, is building coal-fired power generation facilities as fast as it can – some two new units per week.
Such escalations in GHG emissions are not going to slow down because an Ontario judge might rule that Ontario’s emission reduction targets are inadequate. An Ontario court can’t make any order that would affect the 99.7 percent of emissions from outside Ontario. No useful purpose would be served by the court granting the orders sought. And yet, Justice Vermette seemed inclined to do just that, observing that if every jurisdiction were to adopt the “it makes no difference” rationale, global climate action would grind to a halt. She seemed unaware, or unwilling to confront the fact that, key emitting countries are indeed doing little or nothing to reduce their GHG emissions, which is why emissions continue to increase globally.
To summarize the first fatal flaw in the Mathur applicants’ claim: Ontario’s emissions are globally insignificant, there is no CO2 wall around the province by which emissions reductions here could affect the local climate, the 99.7 percent of emissions that might affect Ontario’s climate come from outside its borders, and Canada’s Charter cannot require the Ontario government to solve more rapidly a problem it cannot possibly control at all.
Climate Targets are Political, not Scientific
The second fatal flaw is the applicants’ assertion that there exists some objective, scientific standard by which to set Ontario’s GHG emissions targets. Without this, they have no basis for claiming that any particular target – including the Ford government’s current target – is too low. But climate targets are neither scientific nor even science-based. They are political choices made after evaluating numerous trade-offs – including the constraints of international diplomacy. The Paris Agreement’s 1.5-2.0° C target represents a political compromise, not a real scientific conclusion.
Science can tell us the consequences of climate policy choices, and it can help craft the mechanics of particular policies. But it cannot tell us what choices to make. In this instance, there is not even a scientific consensus on what provincial policies might be most effective to “fight” climate change. Nor are there internationally agreed global standards. There are only political targets, misdescribed by climate advocates as scientific.
Ontario’s GHG emissions target is necessarily chosen within the context of Canada’s national policies to pursue the national target. Unfortunately, there is no authoritative inventory of the literally hundreds of federal, provincial and municipal climate measures now in place or planned; nor of the results achieved or expected. As the total effect of these hundreds of measures is unknown, there is no scientific or factual basis for Ontario to calculate and set its share of the total Canadian emissions reductions.
If a court were to grant the Mathur applicants’ request, and if Ontario set a new, somewhat more stringent target, dissatisfied activists could simply return to court, arguing that the new target is still inadequate. The judiciary would become the de facto regulator of Ontario’s climate policy.
Under international proceedings, the federal government has the primary responsibility for setting climate policy and legislation for the country. A province is not bound by international agreements (like the Paris Agreement) because it is not a party to such agreements. Therefore, it has no duty to set or to legislate any provincial target. As the Ontario Court of Appeal noted in its ruling sending the matter back to the trial level, by enacting its legislation Ontario voluntarily undertook a legal obligation it need not have assumed. If Ontario were to repeal this unnecessary law, the aforementioned Cap and Trade Cancellation Act, 2018, the issue of Charter compliance would disappear.
What is the lawsuit Mathur v Ontario about?
Courts Should not Judge Climate Policy
There is a deeper problem with using the courts to judge climate policy. Judicial decisions are made on the basis of evidence available at a particular moment. But climate policy is a moving target, requiring constant adjustment and balancing of competing interests.
Consider the complexity of setting a meaningful target for Ontario. The provincial government is affected not only by its own policy but also by federal and international measures. Ontario itself has 444 municipalities, each with their own decarbonization policies and plans. The cumulative effect of these frequently changing measures is impossible to calculate, but would far exceed the impact of any single provincial target.
If a court were to grant the applicants’ request, and if Ontario set a new, somewhat more stringent target, dissatisfied activists could simply return to court, arguing that the new target is still inadequate. The judiciary would become the de facto regulator of Ontario’s climate policy, a role for which courts are ill-suited. The Charter is meant to protect the fundamental constitutional rights and freedoms of individuals, not oversee complex policy trade-offs involving economics, technology and politics.
The wrong tool: The author points out that the Charter is meant to protect the fundamental constitutional rights and freedoms of individuals, not oversee complex policy trade-offs on issues like emissions regulation that involve economics, technology and politics. At left, Petro-Canada Lubricants Centre refinery in Mississauga, Ontario. (Source of left photo: Erman Gunes/Shutterstock)
There are real-world costs to judicial over-reach in this space. If the courts force Ontario to adopt more stringent targets, this will likely affect nearly all areas of provincial policy-making, particularly transportation and energy, potentially costing tens or even hundreds of billions of dollars by 2050. These associated costs will not be borne primarily by the wealthy or well-paid climate activists and their lawyers, but fall most heavily on those least able to pay. They will also add to Ontario’s already-high provincial debt and tax burden. Redirecting scarce resources to satisfy the demands of climate litigation means less funding for health care, education, infrastructure and social services. Ironically, the very groups on whose behalf these lawsuits are filed will be among those most harmed.
The Supreme Court of Canada Commits the CO2 Wall Fallacy
The origins of the CO2 wall fallacy in a Canadian legal context can be traced to the Supreme Court of Canada’s 2021 reference decision on the constitutionality of the Greenhouse Gas Pollution Pricing Act, aka the federal carbon tax. In deciding in favour of the federal government and against the provinces that challenged the carbon tax, the majority of Supreme Court justices revealed that they implicitly believe there is some kind of invisible atmospheric barrier over Canada (as illustrated in the accompanying ChatGPT-generated image).
As noted in this recent C2C Journal article, the court described climate change as an existential crisis that must be addressed by reducing “carbon leakage” and “interprovincial pollution”, which implies that emissions starting in one province can somehow stop over another, and that Canada’s climate is substantially controlled by Canada’s own emissions of GHGs. These judicial comments (known as obiter) had no evidentiary basis in the court’s record and were not subjected to cross-examination. Fortunately (or at least it seemed), they were not essential to the court’s reasoning about the constitutional basis for the carbon tax itself.
Nonetheless, environmental activists and their lawyer allies have invoked these peripheral statements as if they were binding precedent. In Mathur v Ontario, Justice Vermette appears to have accepted these misrepresentations of what the court actually decided in that case. But a lower court is not obligated to treat a higher court’s obvious mistakes as binding. The CO2 fallacy is no exception. The Common Law evolves precisely by allowing lower courts to challenge and correct such errors.
What is the “CO₂ wall” fallacy?
Paradoxically, the Supreme Court’s carbon tax decision did implicitly acknowledge the futility of provincial climate action undertaken solo. If a province is required to comply with numerous federal climate programs, the scope for meaningful provincial action is minimal. Any serious assessment of Ontario’s climate obligations would require a comprehensive study of the impact on Ontario of all federal and municipal programs, a task far beyond the capacity of any court. Such a thing might take a Royal Commission called just for that purpose several years.
The Scale Problem
If Canada’s 1.5 percent of global emissions seems small, consider recent findings from the U.S. Department of Energy. In its just-released report A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, five eminent climate scientists addressed what they called “the scale problem”. They noted that unlike with conventional air pollution in which local action can often improve local air quality, even drastic local actions to cut GHG emissions have negligible local effects, and then only with a long delay. That is because CO2 doesn’t pollute the local air, it is said to increase the global average atmospheric temperature.
The entire fleet of U.S. cars and light trucks emitted about 1.05 billion metric tonnes of CO2 in 2022. That’s just 3 percent of global energy-related CO2 emissions. Even eliminating all U.S. vehicle emissions would reduce global emissions by well below the ±15 percent margin of measurement error for global warming impact. And even Canada’s total emissions from all sources, at about 700 million tonnes, are less than 70 percent of the already-immeasurable U.S. vehicle emissions. Ontario’s share at 0.3 percent is thus trivial.
The conclusion is inescapable: Ontario cannot reduce climate change globally or in Ontario in any meaningful sense. Any court decision or order in favour of Mathur and her co-applicants would be empty symbolism.
A Call for Realism and Responsibility
Why did Ontario’s lawyers not challenge these fallacies more effectively? The answer, as noted above, may be political caution. In today’s political climate, even the mildest dissent from the “climate crisis” orthodoxy is met with accusations of climate “denialism”. For government lawyers and, perhaps, for governments themselves, it may be judged easier to lose quietly on technical grounds than to risk winning with arguments that bring down the full force of alarmist anger for challenging the prevailing narrative.
The Charter of Rights and Freedoms was never intended to serve as a blunt instrument for judicial remaking of provincial climate policy in the image of the Paris Agreement’s aspirations.
Judges and Crown lawyers, like many of the rest of us, are under pressure to “save the planet.” But this is not merely a legal or political problem. It is a question of mature judgment. The courts are not the right forum for setting or adjudicating climate policy. The proper response for Ontario would be to repeal its unnecessary legislation and let elected MPPs, Cabinet members and the Premier himself – not judges – debate the merits of various possible emissions targets. And then ultimately let the voters decide.
In 1991, early in the life of the Charter, then-Chief Justice Brian Dickson warned Canadians against trivializing the Charter. The Mathur court would do well to heed his warning. The case is not just about Ontario’s emissions targets. It is a test of whether Canadian courts can recognize the limits of adjudication and the realities of science. It is a test of whether our political leaders are willing to defend the interests of all citizens, not just surrender to political expediency.
Consider modesty: Former Chief Justice Brian Dickson (left) warned against trivializing the Charter; the author considers the Mathur case a test of whether Canadian courts can recognize the realities of science and the limits of adjudication – and resist the urge to meddle in policy matters best left to the people’s political representatives. (Sources of photos: (left) uOttawa; (right) John Englart (Takver), licensed under CC BY-SA 2.0)
Climate change is real, and demands realistic responses. But those responses must be based on facts, not fallacies; on political assessment of costs and benefits; and on a clear understanding of what provinces like Ontario can and cannot accomplish. If the courts are to play a constructive role, it must be by respecting the limits of their own capacities (the legal term for which is “justiciability”). The Charter was never intended to serve as a blunt instrument for judicial remaking of provincial climate policy in the image of the Paris Agreement’s aspirations.
Ontario, and Canada as a whole, needs to remember that virtuous intentions are not enough. The law, like science, must be rooted in reality. Mature societies face hard truths, not comforting fictions. That is the only foundation on which the future of children like these applicants can be built.
Andrew Roman is a retired litigation lawyer with extensive experience in environmental law.
Source of main image: Video131/Shutterstock.
