Canadian Government "Fundamentally Mischaracterizes" Constitutional Climate Case, Youth Plaintiffs Argue

Lawyers representing 15 Canadian youth suing the federal government of Canada over the climate crisis have responded to the government’s bid to have lawsuit dismissed. The youth plaintiffs in the case La Rose et. al. v. Her Majesty the Queen argue that Canada is violating their constitutional rights by contributing to the climate crisis and that the government’s conduct in this context is subject to judicial review.

In its motion to strike (dismiss), the attorney general of Canada said the youths’ case presented non-justiciable “political” questions. This argument “fundamentally mischaracterizes the plaintiffs’ claims,” the response explains. Plaintiffs’ lawyers filed the response brief on August 31 in the Federal Court of Canada. That court will hold hearings on the motion to strike starting at the end of September.

The lawsuit, filed on October 25, 2019 and modeled after the American youth constitutional climate case Juliana v. United States, claims that Canada is harming its youngest citizens by worsening the climate crisis. The case brings legal claims under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (part of the constitution), which specify rights to life, liberty and security of the person and to substantive equality under law. Plaintiffs also claim the government is violating its duty under the public trust doctrine, an ancient legal principle that governs sustaining vital natural resources.

“The plaintiffs’ claim is not about the wisdom of climate policy but about whether Canada’s conduct breaches the plaintiffs’ Charter rights or is inconsistent with Canada’s obligations under the public trust doctrine. These are legal, not policy questions,” the response brief argues.

Canada has also said it cannot be held responsible in court for the global problem of climate change. The plaintiffs pushed back on this defense, saying it “ignores Canada’s significant contribution to climate change.” As noted in a footnote in the response brief, Canada is one of the ten highest emitters in the world. The federal government has even gone so far as to purchase a controversial oil pipeline to ensure the project’s completion despite hurdles faced by the pipeline company.

Plaintiffs further argue that their legal claims are backed by robust climate science.

“It is surprising, and indeed disturbing, that the federal government argues that the question of the level of GHG reduction required to stabilize the climate is an ideological one, rather than one based on science,” the response brief states. “The need for significant and immediate reductions in order to avoid further widespread and significant harm is a scientifically provable fact, which Canada says it accepts, and it is the objective and immutable nature of this fact which leads to the urgent need for action.”

The youth plaintiffs are asking the court to order the government to create a “climate recovery plan” to sharply reduce Canada’s greenhouse gas emissions in a manner consistent with the country’s fair share to stabilize the climate system according to the best available science. This kind of broad remedy is what ultimately resulted in the Juliana case’s pre-trial dismissal by a federal appeals court, though that decision was not unanimous and included a strong dissenting opinion. The Juliana plaintiffs are currently seeking review of the dismissal by the full appeals court (en banc).

Like their American counterparts, the Canadian youth plaintiffs say their government is failing to protect young people in the face of the climate emergency, and that the courts must step in to halt this injustice.

“Canada has acknowledged the disproportionate impacts of climate change on youth, especially on Indigenous youth like me,” Sophia, 18-year-old plaintiff from Gatineau, Quebec, said in a press release. “I’m profoundly disappointed that Canada acknowledges this and now tries to evade their legal responsibilities to protect us. Canada talks but they don’t act. That’s why we need the courts to order the Canadian government to protect the constitutional rights of children and youth in Canada, especially Indigenous children and youth. The time for talking is over. We are in a crisis and we need to act immediately.”

Hearings on the motion to strike will take place September 30 and October 1, 2020 at the Federal Court in Vancouver. These hearings will determine if the case can proceed towards trial.