Youth climate trial opens with arguments over constitutional duty

Analysis

The first youth-led climate trial in Canadian history opened Monday at the federal courthouse in Vancouver, where 15 plaintiffs argue federal legislation violates their constitutional rights by continuing the trajectory of greenhouse gas emissions. Catherine Boies Parker, representing the youth, said the case is not about the existence of climate change but whether the government is "constitutionally required to stop making it worse." She said the plaintiffs are asking the court to hold Canada legally accountable for its role in worsening the climate crisis. The trial comes about seven years after the case was first filed in 2019.

Boies Parker told the court the Charter must provide youth a "degree of protection from their own government’s actions" contributing to the "greatest threat to personal security that humans have ever faced." She said Canada has been aware of the impacts of climate change since at least 1988 and has repeatedly recognized the dangers of greenhouse gases. Despite decades of international commitments, Boies Parker argued Canada has "repeatedly failed to set sufficient targets (and) repeatedly failed to meet those insufficient targets." She said the role of the court is to determine if the plaintiffs have a constitutional right to protections, not to develop specific policies.

READ MORE: Youth climate trial opens in Vancouver, arguing federal law violates charter rights

READ MORE: Youth plaintiffs testify about climate anxiety and cultural loss in landmark trial

Government argues for political solution

BJ Wray, counsel for Canada’s Department of Justice, told the court in opening arguments that the Charter was "never intended to solve existential crises." Wray said the outcome the plaintiffs are seeking "can’t be achieved through legal orders" and "can only be achieved through complex international statecraft, over many years." The government lawyer said Canada’s evidence will show that eliminating the impacts of global climate change is not something the country can do on its own. "The charter ought not to be used to impose on Canada an obligation it cannot fulfil on its own, and we say that this claim should be dismissed," Wray concluded.

Wray told the court that Canada is in compliance with its international obligations and has been reducing greenhouse gas emissions since 2005. Justice Simon Fothergill said he is "mindful that this could have implications" on other issues, such as housing or health care, that are essential to well-being but for which the government doesn't currently recognize a free-standing obligation. Boies Parker said she anticipated the government would say it can’t fix climate change on its own, but argued it can make it better or worse. The case, known as La Rose vs. His Majesty the King, claims the federal government’s Net-Zero Emissions Accountability Act is not ambitious enough and violates Section 7 of the Charter, which safeguards the life, liberty and security of Canadians. The plaintiffs argue the government’s plan to curb emissions is not in line with the best available science. Canada’s climate is already warming nearly twice as fast as the global average, and federal scientists warned in September the country could see 5 C of warming by the end of the century without more aggressive action.

Plaintiffs testify to personal harms

The 15 youth, from seven provinces and two territories, are expected to testify about specific harms they connect to government conduct. Boies Parker said those harms include respiratory illness worsened by wildfire smoke, displacement due to extreme weather, mental health impacts and loss of cultural connections to land. She said the impacts of climate change have intensified since the case was filed, citing the 2021 heat dome in B.C., Canada’s record-breaking 2023 wildfire season, and other extreme weather events. Kira Young, now 20 and a varsity athlete at McMaster University, was the first plaintiff to testify. She recounted being forced to evacuate from Yellowknife in the summer of 2023 as a wildfire approached, describing feeling "existential dread and instability." "It felt like a destabilization of everything I had known," she told the court. Young has since been diagnosed with Still’s Disease, an autoinflammatory disorder she said is "exacerbated by heat and smoke." She testified she joined the case about three years ago when she was 17, scared the hardship she described "is just the beginning of what’s to come for me and youth across Canada."

Other plaintiffs have described similar experiences. Lauren Wright, 22, from Saskatoon, recounted a co-worker suffering an asthma attack while planting lentils in thick wildfire smoke. Wright said a multi-year drought dropped water levels on a river where they used to fish and canoe, and extreme heat made it nearly impossible to play sports or go camping. "I really started to understand, you know, what was going on in my city, my country and how climate change was very much a current reality rather than a distant future problem," Wright said.

Haana Edenshaw, 21, of the Haida Nation, has witnessed sea-level rise damage her family home on Haida Gwaii. Montay Jesse Beaubien-Day’s home in Telegraph Creek, B.C., was destroyed by wildfire in 2018, and climate change has limited his Wet’suwet’en and Tahltan families from harvesting wild food. Sadie Vipond was evacuated from her Calgary neighbourhood during the 2013 Bow River flood when she was seven years old. "I was really scared for my home and family," she said.

The plaintiffs argue Canada produces a fraction of total global emissions but has one of the highest per-capita emissions profiles in the world and is the world’s fourth largest producer of oil and gas. They note the scale of carbon pollution could grow as the government seeks to fast-track new fossil fuel export projects. David Wu, one of the lead lawyers, said a ruling for the plaintiffs would challenge the notion that confronting climate change is a purely political question. "If there is a shift in the politics of the day, the government can’t just wave away its climate change commitments," Wu said.

Federal lawyers, in court documents, contend the young people have failed to establish a causal link between federal legislation and their alleged harms from climate change. They argue Canada’s actions at the federal level have "little or no control over the ultimate impacts of globally-fuelled climate change." Ottawa also argues the court lacks the "institutional competence" to evaluate the scientific, economic and political complexities of global climate change policy. The trial is expected to continue into late November, with closing arguments scheduled for February. Your Space Hamilton reported on the trial's opening arguments earlier this week.

With files from The Canadian Press, CFJC Today Kamloops and The Narwhal