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17 J.L. & Equal. 1 (2021)

handle is hein.journals/jleq17 and id is 1 raw text is: Coming of Age in a Warming World: The Charter's Section 15(1) Equality Guarantee and Youth-Led Climate Litigation Nathalie J. Chalifour, Jessica Earle, and Laura Macintyre* ABSTRACT There is a rapidly growing international movement of youth-led climate change litigation aimed at getting governments to take faster, more ambitious steps to respond to the climate crisis. A core argument advanced in many of these cases is that an inadequate or slow response by governments violates the equality rights of both youth and future generations. Emerging lawsuits filed in Canada since late 2018 have placed this matter and the interpretation of section 15(1) of the Charter squarely before the courts, marking the first Canadian instalments in youth-led climate litigation. This article discusses the application of section 15(1) to claims of age-based climate discrimination, drawing insights from Supreme Court of Canada equality jurisprudence and academic commentary as well as the approach taken by climate change litigants and courts in other jurisdictions. We analyze a key set of issues that arise when applying section 15(1) to the context of a youth-based climate claim, including: (1) the justiciability ofsuch claims; (2) how different ways offraming the government conduct being challenged (for example, a single law versus inaction or a broad set of actions) impact the analysis; (3) how the courts evaluate discrimination based on age and whether future generations are part of age or a distinct, analogous ground; (4) whether the harms that youth and future generations face constitute discrimination as per the most recent Supreme Court jurisprudence; and (5) potential remedies. Our analysis leads us to conclude that there is a compelling argument that government conduct related to climate change constitutes unjustifiable age-based discrimination, regardless of which iteration ofthe section 15(1) test is used. The present bias ofpublic climate policies has depleted, and continues to deplete, Canada's carbon budget for the twenty-first century, and there is irrefutable scientific evidence that, as a result, youth and future generations will bear a disproportionate burden of a Nathalie Chalifour is a full professor with the Centre for Environmental Law and Global Sustainability at the University of Ottawa. Jessica Earle is an associate at Wilson Sonsini Goodrich & Rosati LLP. Laura Macintyre is a law student at the University of Ottawa. The authors wish to thank Tyler Paquette (JD 2019) and Christa Croos (JD 2021) for their excellent research assistance and the Social Sciences and Humanities Research Council for providing funding to support this research The authors also wish to thank everyone who offered feedback on this article, including Lynda Collins, Anne Levesque, Martha Jackman, Denise Reaume, and other anonymous reviewers. Any errors are the authors' alone.

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