Jamie Sarkonak: Court says lack of economy-killing climate targets may violate the Charter

Last Thursday, the Ontario Court of Appeal ruled that it’s possible for the province’s climate plan to violate the Charter rights of Ontarians — namely, the equality rights of young people, and the right to life, liberty and security of all.

It’s a lesson for conservatives on the futility of compromising with progressives: if you try meet your opponents half way, expect the (also progressive) courts to make you go all the way.

The plaintiffs in Mathur v. Ontario took issue with Ontario Premier Doug Ford’s revisions to the province’s climate laws, which he made promptly after being elected. He took office in June 2018, tabled a bill revising the Ontario climate plan in July and by October, it was law.

Rather than scrapping the previous government’s emissions targets, Ford revised them to 30 per cent below 2005 levels by 2030, down from the previous goal of 37 per cent below 1990 levels. And there, the mistake began. Government lawyers argued the target was non-binding and aspirational, but the courts disagreed. Oops.

The meatier part of the decision is this: the Court of Appeal determined that Ford’s climate plan imposed a duty upon government to ensure that the execution of said plan didn’t violate the Charter rights of Ontarians. The Charter alone doesn’t require provincial governments to set climate plans that satisfy court standards, goes the logic, but if a climate plan does exist, it then becomes subject to the Charter.

In other words: if you want to play our game, you have to play by our rules.

Conveniently, Mathur v. Ontario saw the court use cherry-picked facts to imagine an artificially dire scenario, which was then used to steer Canada towards a future in which international consortiums — not Canadian voters, through their elected representatives — decide how we must legislate to mitigate climate change.

The appeal judges, for example, agreed that, “As a result of climate change, the (appellants) and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.”

But this is far from clear. The hard fact is that cold-related deaths vastly outnumber heat-related deaths in Canada; in Ontario, it’s been found that heatwaves in the summer cause fewer excess deaths than temperature dips in the winter. Modelling from Europe shows this will continue to be the case for the Northern Hemisphere, even as the globe warms in the years to come.

You can argue that death by climate change should also include any indirect fatalities — death from wildfire-related smoke, for example — but it’s difficult to prove that one caused the other.

Government mismanagement plays a major role in Canada’s increasingly frequent wildfires, so smoke deaths can’t all be blamed on government emissions policy. And indirect blame goes both ways: to counter, I can just as easily count all carbon-monoxide-related deaths from midwinter heating mishaps and suicides from seasonal depression as “cold-related deaths.”

That’s not to say that climate change isn’t real (it is) or that it doesn’t have consequences (it does). Still, it shouldn’t be up to a court to make these kinds of policy decisions.

Yet the court angled to do just that: “If a breach of the appellants’ Charter rights is declared, there are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant (climate target and climate plan) should look like,” wrote the judges.

They then pointed to the United Nations Intergovernmental Panel on Climate Change, and Canada’s own 2030 emissions reduction targets. They didn’t rule that Ontario’s plan should comply with the UN’s benchmarks, but they implied it as heavily as they could.

The UN standard is an emissions reduction of 45 per cent below 2005 levels by 2030. Half of the Paris target time is up, and Canada is only a quarter of the way there — and that’s with the excessive burden of the carbon tax. Imagine the cost of going full-tilt, as the court is nudging Ontario to do.

A new trial has been ordered in the Mathur case, and that’s where it will be decided whether Ontario’s climate policy in fact violates the rights of its people — and whether the government can be ordered to implement UN standards.

But this latest decision is still consequential, like a little more rain on the ever-eroding slope of legislative supremacy. Its anti-democratic reasoning that could just as easily be applied to tilt the balance of other policy disagreements: transgender medicine, homeless encampments, the UNDRIPification of Indigenous land rights, etc.

Is compromise worth the work? It’s worth wondering. In Ontario, redesigning — and defending — the provincial climate targets took up government capacity that could have been spent on more impactful measures: industrial pro-nuclear policy, enforcement of proper soil management practices and cracking down on fish poaching.

If elected officials decide to prioritize those policy areas over economy-hampering emissions ceilings, it should be up to the people to decide whether they deserve to remain in office. It is not the role of the courts to force their hand.

So, conservatives, this is what happens when you meet the left half way: court battles, judicial overreach and decision-making power handed over to international target-setters. All of which seemingly could have been avoided in the Mathur case, if the government refrained from doing anything at all. Perhaps, then, on certain hot-button issues bound for NGO court challenges, “do nothing” is the answer.

National Post