The distinction between positive and negative rights continues to complicate, and defeat, constitutional recognition of social justice issues for Canadians. While many (convincingly) refute the relevance of this distinction, and some reframe it, the viewing of key constitutional issues in terms of negative and positive rights dominates in Canadian courts. Simply put, this tendency is far from helpful in judicial comprehension of the difficult constitutional issues that social justice concerns present.

The latest case to illustrate the persistence of Canadian judicial reliance on this distinction, Mathur v. Ontario, is an environmental justice challenge initiated in 2023 by seven Ontario youth. Mathur challenges the constitutionality of the Ontario Cap and Trade Cancellation Act, 2018 (CTCA) and its greenhouse gas (GHG) emission target of 30% reduction from 2005 levels by 2030. The claimants make two claims focusing on contravention of the Canadian Charter of Rights and Freedoms: first, the imminent harms of high GHG emissions infringe section 7 rights to life, liberty and security of the person and, second, the fact that youth and future generations disproportionately bear this burden contravenes section 15 equality rights. The remedy sought includes an order for a “science-based GHG reduction target…consistent with Ontario’s share” of global reductions.

This case pairs with another youth environmental rights case: La Rose v. Canada. La Rose avoided, on appeal, preliminary dismissal and will be heard next year. Mathur is one step ahead. Mathur survived the predictable government justiciability claims, although its argument on the merits was dismissed, at first instance, by the application judge, Vermette J. Justice Vermette found the applicants’ claims to assert freestanding positive obligations, that is, to require proactive government intervention. Section 15 does not, the judge held, encompass positive rights.  And, she elaborated, any section 7 harm would be in accordance with the qualifying element of that section, the principles of fundamental justice. The judge pointedly grouped this case with other cases on poverty and homelessness, challenges similarly doomed by positive rights attribution.

However, the judge did hold that the issue of government responsibility for climate change can be litigated, thus granting justiciability to issues that are complex, contentious, and laden with social values. She accepted that the reduction target fell short of international scientific recommendations to avoid catastrophic climate change. She also found that the gap between the emission target of 30% and the target recommended by the Intergovernmental Panel on Climate Change was “large, unexplained and without any apparent scientific basis” [para 146]. Of particular note, Vermette J held that climate change has disproportionate impacts on young people and Indigenous peoples. These aspects buttress similar recognitions in La Rose.

The application judgment in Mathur was appealed. In a November 2024 judgment, the Ontario Court of Appeal disagreed with the application judge’s framing of the case as a positive rights claim, remitting the case for a rehearing under the corrected framework. A unanimous Court began by noting that the challenge seeks not to impose new positive obligations on the government, but, instead, simply to hold the government to its own statutory obligation to provide a Charter compliant target. The focus is on the requirement that  “the execution of the government’s voluntarily imposed statutory obligations be constitutionally compliant where it has chosen to enact a specific scheme” [para 38].  Consequently, the application judge’s failure to consider the correct question meant that her analyses under both sections 7 and 15 were flawed and inconsistent. Notably, however, the Appeal Court does not challenge the lower court’s rejection of positive rights per se; the Appeal Court simply finds that the case does not raise positive rights claims, dodging the broader question.

This Appeal Court decision is hailed as a victory in the quest for environmental rights. Yet, in so saving the challenge for a new hearing, the Appeal Court keeps in place a high bar for future cases claiming substantive obligations that cannot so easily shape-shift between positive and negative rights. Social justice litigants repeatedly run up against judicial insistence that rights can be classified as clearly positive or negative. But, rights can be a mix of negative and positive features; the distinction is not analytically useful.  It is no coincidence that this conversation most plagues claims that seek to expand the impact of Charter rights beyond what is easily recognized under liberal rights regimes.

The Court of Appeal also instructed the lower court to be alert to the issue of whether societal preservation and economical sustainability are unwritten constitutional principles.  One can hope that the rehearing will be a significant moment in the trajectory of Canadian climate challenges. Although, the point remains that the Canadian judiciary has yet to engage in an adequately critical manner with its continued discomfort with assertions of positive government obligations under the Canadian Charter.