Constitutionalizing Environmental Protections Under the Charter: Part 2

This post is the second of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

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The Anatomy of a s. 7 Charter Claim Asserting Environmental Protections

The Charter of Rights and Freedoms, unlike the constitutional bills of rights found in Ecuador and South Africa, does not specifically include protections for the environment. However, the Charter’s broad scope allows environmental protections to be read into the document’s individual rights provisions. Although this has not yet occurred, academics have written extensively on how the Charter can be expanded to include environmental rights. The court itself has noted the possibility of constitutionalizing environmental rights protections under the Charter. In this regard, s. 7 is often cited as the Charter provision most likely to include environmental protections.

Section 7

Section 7 of the Charter of Rights and Freedoms states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The right consists of two components: the life, liberty and security of the person interests, and the principles of fundamental justice that set a threshold for the deprivation of these interests. The principles of fundamental justice requirement sets an internal limit on the scope of protection provided to the interests outlined in s. 7. Only state-imposed action that deprives an individual of one of these interests in a manner or outcome that does not accord with the principles of fundamental justice will infringe the s. 7 right (in exceptional circumstances, a s. 1 justification may save the impugned government action). Both components comprise the right and must be addressed to demonstrate an infringement.

Although the interests protected under s. 7 are broadly stated, the court has interpreted them in a narrow manner. The life interest under s. 7 refers to an individual’s entitlement to continue their existence. However, this interest is only protected in circumstances where government action results in a clear increase in the risk of death. Anything short of a clear risk of death will not be captured by the s. 7 life interest.

Liberty is a broader interest protected under s. 7 than life. The interest encompasses “what it means to be an autonomous human being blessed with dignity and independence in matters that can properly be characterized as fundamentally or inherently personal.” An individual is free to make decisions over personal matters that go to the core of their existence without government restraint. However, certain conceptions of liberty have been excluded from the s. 7 interest, including economic or property liberty interests.

The security of the person interest deals with freedom from state-imposed harm and control that threatens the health and bodily integrity of an individual. This includes government action that physically harms an individual, or restricts the personal autonomy they are able to exercise over their bodily integrity, as well as psychological acts and emotional stress that have the same effect.

The principles of fundamental justice set parameters on these life, liberty and security of the person interests, qualifying an individual’s right in relation to them. The principles of fundamental justice reflect both the procedural and substantive protections afforded by s. 7. As the scope of these protections have grown, so have the number of principles of fundamental justice that claimants can rely on to demonstrate a s. 7 infringement. Principles of fundamental justice that have been recognized by the court include: Procedural fairness, arbitrariness, gross disproportionality and overbreadth. However, this list is not exhaustive, and the court is able to establish additional principles of fundamental justice, provided the following criteria is met:

1. The principle must be a legal principle;
2. There must be a “significant societal consensus that is fundamental to the way in which the legal system ought fairly to operate”; and
3. The principle “must be capable of being identified with sufficient precision to yield a manageable standard.”

Section 7 and Environmental Rights

Legal academics have written extensively on how the Charter can be used to include environmental rights within the scope of the constitution. However, the nature of the environmental rights protected will depend on the nature of the Charter right used to extend constitutional protection. The interests protected under s. 7 relate to an individual’s continued existence, personal autonomy over inherently personal matters, and physical and psychological well-being. Only those aspects of the environment that intersect with these interests will gain Charter protection under s. 7. This entails an individualized understanding of the environment, tied to the particular dimensions of each interest, leaving any aspect of the environment that extends beyond unprotected by the right.

Canadian courts have only heard a small number of s. 7 claims asserting environmental rights protections. They all tend to involve allegations of government action causing environmental impacts that have resulted in personal harms that contravene the s. 7 rights of an individual. Claims have been raised in a variety of contexts: operation of a waste incinerator, approval of a landfill, nuclear power generation, fluoridated drinking water, oil and gas approvals, and emissions from refineries and chemical processing facilities.

None of these claims have been successful (although, Lockridge and Plain v. Ministry of the Environment is still ongoing). However, the court has stated on numerous occasions that it is ready to extend s. 7 to include protections against state imposed environmental harms. What remains elusive is a factual scenario that contains the requisite elements to ground environmental protections under s. 7.

Elements of a s. 7 Environmental Protection Claim

A successful s. 7 environmental protection claim must establish that (1) government action has led to environmental impacts that (2) have resulted or will result in harm that (3) deprives an individual of their life, liberty or security of the person interests, and (4) that this deprivation is not in accordance with the principles of fundamental justice.

(1) Government Action the Leads to Environmental Impacts

The Charter only constrains government action; it does not apply to private actors. As a result, Charter claims must clearly identify government action responsible for the harms alleged. In the environmental context, this applies to three scenarios:

1. Government run industrial operations that discharge harmful contaminants into the environment;
2. Government authorization of private conduct that causes environmental harm; or
3. Government mandated statutory and regulatory standards that permit the emissions of contaminants into the environment at harmful levels.

(2) Have or Will Result in Harm

The environmental impacts caused by the government action must result in or increase the likelihood of harm to an individual. Harm or the possibility of harm does not have to be established in relation to a specific individual. This can occur by demonstrating that the claimant belongs to a class of persons and government action has or will likely result in harms inflicted on the class.

For instance, in Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44, claimants successfully demonstrated that government action, in the form of a failure to provide ministerial exemption from criminal law provisions to a safe injection facility in Vancouver’s Downtown Eastside, created the potential for clients to suffer significant harms. The fact that the harms alleged were prospective and had not yet occurred was not an issue for the court. Moreover, the claimants were not required to establish that they would suffer the harms alleged directly. As former and current clients of the safe injection facility, they belonged to a class of persons that would suffer harm if the facility closed. Outlining the harms that former and current clients could experience was sufficient for the court to determine that the claimants themselves would also suffer harms.

Section 7 claimants must demonstrate that they themselves or the class of persons they belong to will suffer harm or the possibility of harm from the environmental impacts that flow from a specific government action.

(3) Deprivation of the Life, Liberty or Security of the Person Interests of an Individual

The harm must constitute a deprivation of the life, liberty or security of the person interests of an individual to contravene s. 7. Government action that results in a clear increase in the risk of death will deprive an individual of their life interest. State regulations that allow industrial operations to emit toxins at levels that can increase the risk of death through exposure would likely constitute a deprivation of this interest.

Deprivation of the liberty interest must entail the state restricting an individual’s ability to make decisions over matters fundamentally or inherently personal. In Godbout v. Longueuil (City), [1997] 3 SCR 844, the court found that the liberty interest allows individuals to determine for themselves where to live. In that case, the city of Longueuil enacted a bylaw forcing permanent government employees to live within the municipality. The court struck down the bylaw, finding that it contravened s. 7 of the Charter. According to the court, choosing where to live constitutes a right that “is inextricably bound up in the notion of personal autonomy,” and protected by the liberty interest under s. 7. State sponsored pollution that makes it impossible for an individual to remain in a community or location of their choosing due to the possibility of harm would likely restrict an individual’s liberty interest under s. 7.

Finally, government action that undermines the health and bodily integrity of an individual will deprive them of their security of the person interest. State imposed industrial activity that leads to environmental impacts that cause or increases the risk of physical harm would likely constitute a deprivation of this interest. Government action that undermines an individual’s psychological integrity would also constitute a deprivation. However, in the latter case, this requires the state imposed psychological harm or emotional stress to be serious. According to the court, for psychological harm to reach the serious threshold required to constitute a deprivation, it “need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.”

(4) Deprivation Not in Accordance with the Principles of Fundamental Justice

An individual’s s. 7 Charter rights will only be infringed when there is a deprivation of their life, liberty or security of the person interests, and the deprivation is not in accordance with the principles of fundamental justice. Claimants must demonstrate that the impugned government action failed to comply with the principles of fundamental justice.

Procedural fairness is clearly a principle of fundamental justice that is relevant in the environmental context, which provides individuals an opportunity to influence state actions that result in environmental impacts that could lead to individual harms. Arbitrariness, overbreadth and gross disproportionality could also be raised depending on the particular context.

Respect for human life and prohibitions against state action that would shock the conscience of the public are other principles of fundamental justice relevant in this context. Government action that leads to the actual or potential loss of human life will likely contravene s. 7 of the Charter, no matter the purpose pursued or methods used. This is the same for government action that would shock the conscience of the public by being fundamentally opposed to the notions of fair practice and justice held by Canadians. State imposed environmental harm that result in serious or wide-ranging health effects would likely shock the conscience of Canadians.

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A review of the documentary evidence and testimony before the Alberta Energy Regulator inquiry into odours and emissions from heavy oil operations in the Peace River region makes clear that the requisite components of a s. 7 claim are present. As will be outlined in the next post, Alberta’s poor odour management framework permits heavy oil operations in the Peace River region to emit odours that appear to be inducing serious physical and psychological health effects in community residents.