A New Threat to Life: Examining the Environmental Reach of Section 7 of the Canadian Charter of Rights and Freedoms

Abstract

Despite having one of the most progressive constitutions in the world, Canada’s Charter of Rights and Freedoms lacks any explicit environmental protection rights. This contrasts with the constitutions of countries such as the Netherlands, France, and Finland. With the recent increase in global environmental advocacy, the search for environmental protections through the Canadian courts has never been higher. In this paper, I examine whether the Supreme Court of Canada (SCC) would expand the scope of section 7 of the Charter of Rights and Freedoms to encompass the right to a healthy environment. To answer this, I conducted a legal analysis of SCC case judgements involving a section 7 Charter claim within the last ten years. The two main variables that I am testing in this analysis are the scope of section 7 and the presence of judicial activism. Detailed measurements of these variables can be found in my methodology section. My findings indicate that SCC justices would not broadly encompass the right to a healthy environment within section 7. This is due to a consistently low presence of judicial activism and generally narrow interpretations of section 7 in recent SCC rulings. However, the findings do indicate that section 7 could possibly extend to the environmental policy area in a limited manner. More dialogue with Canadian courts regarding constitutionally protected environmental rights is needed to address this gap.