Feeling the Heat: Climate Litigation Under the Charter's Right to Life, Liberty and Security of the Person

Abstract

Citizens are increasingly searching for ways to spur their governments to take climate change action, and recent successes in courtrooms around the world suggest litigation may be an effective recourse. This article evaluates the legal basis for a claim that the Canadian government’s conduct in relation to climate change and greenhouse gas (GHG) emissions violates the Charter’s right to life, liberty and security of the person. A section 7 climate case would raise a number of novel questions, three of which are addressed in detail. The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article. Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.