Disponible uniquement en anglais.
par Larissa Parker, lauréate 2021 du concours de dissertation pour étudiants et étudiantes en droit « Dans l’intérêt public ».
Larissa thanks Professor Pearl Eliadis for her support and guidance on this paper; Chris Tollefson and Anthony Ho at the Pacific Centre for Environmental Law and Litigation for inspiring her interest in this topic; and, members of the Public Sector Lawyers Section for their comments and revisions before publication.
INTRODUCTION
In today’s “era of unlimited harm,”1 climate change is expected to have profound effects on the enjoyment of human rights across the planet.2 Indeed, the world has seen a “rights turn” in climate litigation, whereby a range of plaintiffs assert that the effects of climate change infringe their rights to life, liberty, and security, as well as, equality.3 In Canada, for instance, four climate change-related public interest cases were launched across the country between 2018 and 2020, each alleging rights-based claims under the Charter of Rights and Freedoms (“Charter”).4
Climate cases of this nature are often confronted with motions to strike at a preliminary stage. These motions typically argue that the cases are ‘non-justiciable’ under the justiciability doctrine.5 Justiciability refers to the limits of the scope of judicial authority and adjudication.6 Indeed, a number of scholars have observed that the doctrine of justiciability can act as a roadblock to novel public interest litigation.7 In Canada, this is particularly true when courts are faced with claims concerning ‘social and economic rights’, such as those relating to poverty, social housing, and as of recently, climate change.8
Concerns about the justiciability of these rights are based on three assumptions that trouble the adjudication of systemic-type claims, including: first, that such rights involve positive obligations, while civil and political ones do not; second, that it is not legitimate for courts to intrude into the realm of social and economic policy; and third, that courts or other decision-making bodies lack the ‘capacity’ to properly adjudicate social and economic rights.9 These assumptions are rooted in the misconception that economic and social rights are necessarily divisible from civil and political ones. This misbelief promotes dichotomies that are inaccurate and fundamentally disconnected from the reality of the interconnectedness of human rights. 10 Instead, all human rights are interdependent. The realization of economic, social, and cultural rights is connected to the realization of civil and political ones.11
The interconnectedness of human rights is perhaps no more obvious than in the context of climate change. Changes in temperature, precipitation, ice, permafrost, and freshwater availability prompt increased extreme weather worldwide. These have caused widespread death, injuries, and other human rights infringements, like the right to food, water, health, sanitation, housing, self-determination, etc.12 Further, given that racialized and Indigenous communities will disproportionately bear the consequences of these events, climate change also has important equality rights dimensions.13
Such interconnectivity is a symptom of the very nature of the climate crisis, which scholars like Richard Lazarus characterize as a “super wicked problem.”14 The problem “defies resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution.”15 In the face of these largescale risks, although simple, deterministic rules might govern each individual causal moment,16 the system as a whole nevertheless exhibits “surprise phenomena produced by chaos, emergence, and catastrophe.”17 Such complexity troubles the foundation of reductionist science, namely, that studying constituent parts will reveal general properties. Instead, we are left only with a partial understanding of the problem.18
The struggle to apply reductionist science to understand and tackle wicked problems offers insight into the trouble that the Canadian Charter has when confronted with systemic and complex issues. Indeed, Charter rights – as they were initially designed – were conceived largely as individual rights, designed to protect citizens’ ability to fully participate in civil and political life without discrimination. It was not considered, at the time, that rights infringements might occur in the context of a largescale socio-economic problem, like climate change. In other words, while courts are comfortable adjudicating narrowly scoped, individual rights, they are apprehensive when faced with broad systemic claims. Although very serious rights infringements have been alleged in such contexts, the doctrine of justiciability has successfully impeded their adjudication. Many claims are dismissed before they are heard on the merits. This pattern has led several scholars to identify concerns around access to justice and the rule of law.19
As society faces larger risks, it is imperative that courts and the Charter adapt (or at least, are given the opportunity to try). Our legal frameworks must evolve to recognize the existence of broader rights, such as environmental rights. It is imperative that they must move away from the trend in which the justiciability doctrine acts as a blunt tool to prevent the development of the law on these issues. Instead, it is through litigation on the merits that will enable us to begin understanding how (and if) the Charter can respond to environmental rights issues. As Weaver and Kysar write, “At times of crisis, when our normative universe tends toward collapse, the demand on the courts to respond becomes ever more insistent. Courts will inevitably fail to mount a complete response to catastrophe, but they must try.”20
Grounded in Canada’s constitutional landscape, this paper is structured as follows. Part 1 introduces the potential relationships between climate change and the Charter and how scholars have argued sections 7 and 15 could apply to the recognition of such claims. I assume a positivist approach to Charter interpretation.21 Part 2 considers how the doctrine of justiciability has stifled litigation on broad issues and seeks to problematize the assumptions that are inherent within the non-justiciability of social and economic rights, as well as its implications. Finally, Part 3 reflects on what theory on wicked problems might teach us about justiciability by distilling two key lessons for why the Charter must adapt.
I. ‘WICKED PROBLEMS,’ ENVIRONMENTAL RIGHTS, AND THE CHARTER
There is no place in the world that will be unaffected by climate change. Since the effects of the crisis will vary by geography and population amongst nations and within them, it is expected that a vast range of human rights will be affected across the world. Yet, the uncertainty and complexity of the problem render such rights infringements difficult to frame and fight. However, solving them is key to meeting other social challenges. After introducing the concept of ‘wicked problems’, this section explores the potential recognition of environmental rights in Canada.
Introducing ‘Wicked Problems’
The concept of ‘wicked problems’ was developed in the late 1960s in response to a general trend in public policy, where political officials, city planners, engineers, etc. recognized they were unable to solve emerging, largescale problems. ‘Wickedness’ characterizes problems “which are ill-formulated, where the information is confusing, where there are many clients and decision-makers with conflicting values, and where the ramifications in the whole system are thoroughly confusing.”22 Faced with such problems, academics and practitioners have concluded that the traditional, scientific model of problem-solving was unsuited for “wicked” problems because they could not be “tamed” enough to be examined systematically within that framework.23
Many environmental issues can be characterized this way. They are often ill-defined and not susceptible to simple analytical solutions because they risk oversimplifying the complexity of the problem to make it manageable or solvable. Wicked problems have two fundamental characteristics, including: a) there is no definitive statement of the problem, and b) there is no definitive solution.24 The key to governing these challenges is realizing that it is a matter of creativity to devise potential solutions and a matter of judgment to determine which should be pursued and implemented.25
Theory around wicked problems can be applied to the Canadian Charter, as well. Climate change acts as a risk multiplier26 that affects a wide range of human rights.27 However, just like wicked problems, they are riddled with complexity; we cannot point to one legal solution, or rather, a set of rights that will neatly encompass the rights affected by climate change. As Linda Collins points out, an “ecologically literate” reading of the Charter reveals that a livable environment is necessary for the full enjoyment of our existing rights and the proper functioning of the living tree doctrine.28 Although such breadth and complexity are daunting, courts must adapt to respond to the serious rights issues at stake.
Conceptualizing Environmental Rights
So where might rights infringements due to climate change fit under Canada’s constitutional frameworks? Although environmental rights in the Charter have yet to be recognized,29 several scholars propose that sections 7 and 15 may offer fruitful avenues to safeguard against environmental harm.30 According to Nathalie Chalifour, for example, the widespread effects of climate change pose a risk to Canadians’ rights to life, liberty, and security.31 Further, the disproportionate impacts that climate change may inflict upon certain socioeconomic classes and Indigenous peoples could pose a compelling section 15 infringement argument. Due to these connections, a striking six lawsuits were launched between 2018 and 2020 on climate ‘rights’ alone.32 These claims often involve a mix of interconnected negative and positive obligations to mitigate and adapt to the problem – a clear manifestation of its ‘wicked’ characteristics. This raises an important question: are Canadian courts ready to invoke the Charter to impose positive duties on governments to act?
In Canada, section 7 may present promising opportunities to do so. Although the section was said to have “humble origins” when it was enacted, the Supreme Court has since extended it to protect substantive as well as procedural rights and gave the provision an expansive interpretation.33 As Justice Rennie recently stated, speaking for a unanimous Federal Court of Appeal:
[S]ection 7 is not frozen in time, nor is its content exhaustively defined, and that it may, some day, evolve to encompass positive obligations – possibly in the domain of social, economic, health or climate rights.34
Indeed, the application of section 7 has been expanded into broader matters of social policy over the years. In “Chaoulli v Quebec (Attorney General)” for instance, the Court held that state-imposed restrictions on private health care, coupled with the existence of long waiting times in the public system, violated the rights to life and security of the person of Quebec residents.35 This expanded understanding of section 7 was apparent in “PHS Community Services Society”, where the Court ruled that a Minister’s failure to grant the exemption to provide a supervised drug injection site in Downtown Eastside Vancouver infringed Charter rights because it deprived community members of potentially lifesaving medical care.36 The expansion continued with Carter, which ruled that a prohibition on assisted dying was unconstitutional.37 Beyond the life interest, section 7’s liberty interest is engaged where state interference affects important life choices.38 For instance, the right to choose where to establish one’s home falls within the scope of the liberty interest since this right to choice is fundamentally linked to individual dignity and independence.39 Finally, the section’s security interest is grounded in the idea of personal autonomy and protects both physical and psychological integrity.40 In another context, the Supreme Court acknowledged that the security of the person encompasses the right to be free from prospective harm.41
Section 15 may offer an additional lens of substantive equality to acknowledge the disproportionate impacts that climate change has on Indigenous communities, children, and other marginalized groups. 42 As the Court ruled in Alliance, “when the government passes legislation in a way that perpetuates historic disadvantage for protected groups, regardless of who caused their disadvantage, the legislation is subject to review for section 15 compliance.”43 Pre-existing disadvantage plays a vital role in the substantive equality analysis.44 Note however, due to strict requirements around establishing a specific discriminatory distinction, scholars have acknowledged that opportunities under section 15 are more limited than section 7.45
Of course, these types of applications are novel and creative. Charter adjudication on the merits has yet to confirm the application of section 7 or section 15 to environmental problems. Incidentally however, imagination, innovation, and flexibility are exactly what have been identified as being necessary for addressing wicked problems.46 Thus, in the face of climate change-related rights infringements, it is likely that creative Charter applications are necessary to provide redress to those affected by the crisis. Courts must grapple with new types of claims and applications to delineate the limits of this potential.
Yet, non-justiciability rulings often stand in the way. Although the Charter’s evolution to expand to broader matters of social policy is evidence that our living tree is still growing, this growth is severely limited to certain types of rights,47 rendering the adjudication of a wicked problem highly difficult.
II. PROBLEMATIZING JUSTICIABILITY AS A ROADBLOCK
Traditionally, procedural roadblocks in litigation are framed under the doctrine of justiciability.48 The doctrine affords judges significant discretion to assess whether an issue can proceed or should be dismissed as not justiciable.49 This is typically done through one of three procedural mechanisms, including summary judgments and motions to strike.50 The following section aims to introduce justiciability, problematize the use of the doctrine in the context of Charter claims, and break down the barriers that make recognizing socio-economic rights in the Charter difficult.
Justiciability and Public Interest Claims
In Canada, the courts’ approach to justiciability is very open-ended and ill-defined.51 However, a review of jurisprudence reveals some key similarities in how courts assess the two dominant criteria of legitimacy and capacity. Legitimacy concerns are intimately linked to the separation of powers and the general notion that certain matters are not justiciable due to their political nature. As Sossin writes, “[political questions] typically involve moral, strategic, ideological, historical or policy considerations that are not susceptible to resolution through adversarial presentation of evidence or the judicial process.52 In such cases, courts are expected to be sensitive to their role as judicial arbiters and must avoid fashioning remedies that usurp the role of other branches of government.53 This played out abruptly in Friends of the Earth v Canada (Governor in Council), where federal courts were asked to review the government’s failure to meet its own commitments under the Kyoto Protocol Implementation Act to prepare a climate plan and publish proposed regulatory amendments to meet its commitments. Surprisingly, although the commitments were set in the legislation, the Court deemed the claim non-justiciable for public policy reasons.54
In the last decade, the justiciability doctrine has stifled public interest litigation on socio-economic rights. Tanudjaja v Attorney General (Canada) is the quintessential example.55 Although counsel and housing activists prepared an almost 10,000-page record, both the Ontario Superior Court and Ontario Court of Appeal struck the claim as being “not justiciable.” The application alleged that changes to legislation, policies, programs, and services by the Canadian and Ontario governments have led to inadequate housing and increased homelessness, which breached section 7 and 15 rights under the Charter. The court found this to implicate positive rights, which it stated were not recognized under Canadian law. This was arguably premature. As Justice Feldman of the Ontario Court of Appeal held in dissent, it may not be appropriate for a Court to make such a determination at a procedural stage, given that the Supreme Court left the door open to recognizing positive rights under section 7 in Gosselin v Québec (Attorney General).56
The ruling in Tanudjaja has had “chilling” long-lasting effects on other public interest cases.57 Most recently, in La Rose v. Canada, 58 fifteen youth across Canada are challenging the Canadian government's overall conduct with respect to GHG emissions and its longstanding failure to meet targets the claimants argued were insufficient in the first place. Justice Manson of the Federal Court found the plaintiffs’ approach of challenging a swath of government conduct, rather than specific government action, was fatal, given its “undue breath and diffuse nature,” comparing the case explicitly to Tanudjaja.59
The problem with the Tanudjaja and La Rose decisions is that they have the effect of shielding systemic rights infringements from Charter scrutiny. By insisting that either set of claimants needed to tie their challenge to a specific legal instrument, courts fail to take into account that a systemic set of decisions, as was argued in both cases, can lead to egregious rights infringements. As Chalifour, Earle, and MacIntyre compellingly point out, “unless there is a jurisdiction-wide, legislated mandate for GHGs, emission levels will de facto be dictated by a diffuse tapestry of government actions and inactions.”60
These cases shed light on how procedural mechanisms can undermine the development of Charter rights. Although it is open to debate whether these systemic-type claims would be successful at trial, there is no denying that the doctrine of justiciability has had the effect of undermining and ignoring the plaintiffs’ claims. The decisions prevent them from making use of the very evidence that would allow them to convince the court of their allegations. This ultimately prevents the law from developing on the issue to determine the limits of Charter adjudication in this area. Some of the most compelling public interest cases have been built on innovative claims supported by a strong evidentiary record.61 As Kennedy and Sossin have succinctly put it, “there can be no public interest litigation, if there can be no litigation.”62
Breaking Down Assumptions on the Non-Justiciability of Socio-Economic Rights
Justiciability concerns on social and economic rights are typically grounded in the misbelief that economic and social rights are inherently different from civil and political ones. As stated in the introduction, this is based on three assumptions that can be problematized: first, that economic and social rights necessarily involve positive obligations, while civil and political rights do not; second, that it is not legitimate for courts to intrude into the sphere of social and economic policy; and third, that courts or other decision-making bodies lack the capacity to properly adjudicate and enforce social and economic rights.63
Confronting these assumptions helps problematize the foundations of the justiciability doctrine and identify some important implications for procedural justice and the rule of law.64 The first assumption represents a general failure to recognize rights as indivisible. There are social and economic rights dimensions to most civil and political rights claims, just like there are civil and political rights dimensions to social and economic ones. According to Nolan, Porter and Langford, the denial of judicial protection to social and economic rights does not simply exclude one category of rights, but instead, has the effect of excluding a critical dimension of civil and political rights (particularly, equality), as well.65 This is extremely evident in the context of environmental claims; because of the diffuse nature of environmental harm, a number of rights are necessarily implicated, including traditional civil and political rights, such as the right to freedom of expression, freedom of religion, etc.66 Overall, this failure of courts to recognize the indivisibility of rights leads to problematic hierarchies in the practical application of rights.67
Further, the denial of economic and social rights is intimately connected to the question of positive obligations, resulting in both a “systemic preference” for claims that challenge government interference and a “blanket reluctance” to engage with claims that implicate positive dimensions of protection. Invariably, this has the effect of excluding critical issues of systemic injustice and inequality from judicial review.68
The second assumption about intruding into social and economic policy reflects a misunderstanding about the role of the judiciary within the political system. The judiciary’s role is to determine whether government conduct unjustifiably infringes Charter rights; it can perform this function without weighing into the merits of specific policy choices. As Wiseman writes, “the purported need to respect certain policy judgements neither requires nor justifies abandoning the responsibility to protect those values.”69 It is thus unclear why the adjudication of broader and more systemic cases involves an intrusion on the separation of powers that is different than other types of claims. Courts have demonstrated that they can adjudicate Charter violations in areas of social policy when constitutional rights are at issue.70 All of these cases dealt with facets of social or economic policy making. Similarly, climate change risks depriving all citizens the dignity, equality, freedom, and security that many, if not all, Charter claims seek to protect.
Finally, the third assumption about capacity reflects a mis-construal of the nature of the expertise required of courts in adjudicating economic and social rights claims. Rights claimants do not turn to courts for some kind of superior expertise in the policy issues, but rather for an expertise in reviewing government decisions or policies against the requirements of the law. They rely on the exercise of “traditional” judicial competences: hearing from the rights claimant and other witnesses about the particular situation at issue, considering evidence from expert witnesses about the broader policy issues, hearing argument from the parties and, finally, applying the law to the facts in a fair and impartial manner.71
Further, in the context of climate change, one could argue that there is a judicially manageable legal standard to assess Canada’s conduct on climate change. The Paris Agreement, which was ratified by 188 countries (including Canada), sets scientifically driven and quantifiable ‘temperatures thresholds for greenhouse gas emissions’ with the goal of preventing irreversible impacts.72 Scientific reporting, along with our own international targets allow us to evaluate whether Canada’s measures the level of GHG emissions reductions required to avoid crossing that threshold. It is thus within a judge’s capacity to consider the same – a phenomenon that Justice Brown of the Ontario Superior Court ultimately acknowledged in Mathur.73
Taken together, these three assumptions mislead us into thinking about Charter rights as exclusively individual, narrow, and incremental. This oversimplifies the adjudication of rights by creating arbitrary distinctions, such as those between individual and collective rights or between positive and negative obligations. Below, I consider what wicked problem theory may teach us in order to better adapt the Charter to today’s modern pressing risks.
III. TOWARDS EMBRACING THE “WICKED”
Since the doctrine of justiciability governs what claims can be adjudicated, it plays an important role in extending the application of the Charter to new rights, like environmental ones. However, the doctrine, as it currently exists, is founded on faulty assumptions that mislead us into thinking about Charter rights as exclusively individual, narrow, and incremental.
Such thinking puts some rights at odds with the living tree doctrine, which exists to ensure that the Charter is dynamic and able to respond to current needs. As we approach climate tipping points, Canada (and the world) will continue to experience erratic forest fires, floods, and heat waves.74 These events will disproportionately affect already marginalized groups and particularly Indigenous communities.75 If the Charter is unable to respond to such needs to propel stronger action on the part of our government (one of the largest per capita emitters in the world),76 it is important to question whether our rights protections are sufficient at all.
By contrast, the recognition of broad, interconnected environmental claims through the living tree doctrine offers an opportunity for courts to adapt the Charter to modern needs. As Dustin Klaudt beautifully writes:
Trees are a natural carbon sink. They have the power to remediate atmospheric damage, by storing excess carbon through the photosynthetic process. It appears prophetic that the Charter, rooted with the “living tree” doctrine, should be interpreted to provide curative mechanisms to fight the global warming problem.
The existing Charter human rights protection framework must expand to address this dire reality of modern life and to ensure there is a viable future for the planet.77
To foster this recognition, I contend that the Charter must embrace the ‘wicked’ of ‘wicked problems.’ Embracing the principles outlined in section 1, I argue courts must first, adapt to accept the interconnectedness of different rights (and their justiciability); and second, accept that understanding these problems is iterative, and comes from the very act of devising solutions. These are both discussed in greater detail below.
Embracing the Interconnectedness of Rights
First, although civil liberties and rights under the Charter might have individual components, they have important interconnections that need to be recognized, as part of our shared humanity. This is especially true in the context of climate change, which risks impacting the enjoyment of all human rights. Of course, this is easier said than done.
Since the Charter was designed to protect individual rights, courts seem to encourage potential claimants to narrow their claims in order to parse climate change into smaller, more manageable pieces.78 This is evident within the language of the Charter, which also uses a singular subject when referring to human rights; they are enjoyed by ‘every citizen of Canada,’ ‘everyone,’ ‘every individual,’ ‘any person,’ etc. Even in section one of this paper, as I explored where environmental rights might fit, there is a perpetual degree of awkwardness because the exercise involves reducing environmental problems, which often fail to respect boundaries and are riddled with issues around latency of harm, to a category of rights that necessarily will be unable to fully capture the problem.79 Instead, the adjudication of environmental rights will require courts to step outside of the neat categories laid out in the Charter.80
Yet, the individual nature of rights has also spurred a preference for narrow cases. Broad cases on systemic issues, like on homelessness81 and federal climate policy,82 have been rejected as being “overly broad and diffuse” and thus, not justiciable. However, once again, the very nature of reducing a claim so that it is less broad is problematic for the governance of wicked problems; it necessarily means that courts are only prepared to adjudicate a small piece of the puzzle. While this strategy was successful in overcoming a justiciability challenge in a recent climate case,83 this approach risks leaving the Court with an incomplete understanding of the cumulative impacts that a broader network of interacting laws may have on Charter rights. On this issue, Chalifour et al. has recently stated:
It is simply impractical and unjust for courts to require climate litigants to play “whack-a-mole” in defending their constitutional rights, forcing them to challenge each major project approval or GHG-related decision separately. This approach risks grave injustices given the systemic nature of climate change, the considerable amount of time and resources required to mount a single challenge and the irreversibility of many of the harms at stake.84
Embracing that Problem Understanding Comes from Developing Solutions
Second, a problem is “wicked” when part of understanding the problem comes from developing solutions. There is no definitive statement of the problem and there is no definitive solution. As Rittel and Webber see it, problem understanding and problem resolution are concomitant.85 Key to governing these challenges is the realization that it is a matter of creativity to devise potential solutions and a matter of judgment to determine which should be pursued and implemented.86 Seen in this light, climate change presents an opportunity for the Charter to develop a better understanding of how the law may safeguard environmental ‘rights’ (and the limits of that adjudication); the doctrine of justiciability may prevent the development of the law on such issues.
On this point, Sinha et al. have compellingly argued that it is important justiciability shift towards “a form of public interest justiciability” that does not automatically preclude litigants who advance novel and/or complex Charter claims from having their day in court.87 They encourage instead, a more flexible approach for public interest claims.88 As aforementioned, it seems similar thinking guided Justice Feldman in her dissent in Tanudjaja, where she argued that it was too early to decide whether the circumstances of the case would be special enough for the court to be able to recognize positive rights because such an assessment requires the court to consider the full record of the case.89
The need to move away from strict, procedural rules in the context of environmental claims has been observed in a number of international cases. As US Justice Blackburn asked in an infamous dissent in Sierra Club v Morton, “Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues?”90 Similarly, in the groundbreaking Urgenda decision, the court emphasized the court’s role in conducting judicial review:
It is an essential feature of the rule of law that the actions of (independent, democratic, legitimised and controlled) … the government and parliament can – and sometimes must – be assessed by an independent court.
…
[Judicial authority] is based on democratically established legislation… which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities.91
As the world faces increasing climate change, the pressure on courts to respond becomes ever more insistent.92 While judges will surely not have all the answers on how to respond to rights-based issues related to wicked problems, the act of trying itself may be what promulgates the necessary change to have the law evolve.93 In adjudicating these matters, judges can participate in the iterative process of developing solutions to better understand how to provide redress to rightsholders who are affected by government climate inaction. In doing so, Canadian courts may find that the trying itself is what enables a reshaping of the normative landscape.94 Thus, these claims represent key opportunities to develop the remarkably undeveloped law around environmental rights and understand to what extent the Charter can respond to these problems at all.
In Canada, scholars have argued that the constitutional structure and the range of remedial options open to judges allow courts to issue judgments that leave space for the legislature to consider various options and respond in a manner consistent with its broader policy objectives. Hogg and Bushell argue that this promotes a “judicial dialogue” with other branches of government that promotes democracy in allowing aggrieved minorities, whose interests are traditionally overlooked in the legislative process, to have a voice in the democratic debate.95 Seen in this light, courts could play a role in setting minimum standards for GHG emissions, while also leaving room for elected government officials to decide how best to attain those standards; this was, ultimately, the approach taken in Urgenda.
CONCLUSION
Canadian courts have long struggled with the adjudication of Charter claims pertaining to economic and social rights. Climate litigation cases, alleging violations under sections 7 and 15 are no different. They seek to hold governments accountable to their climate targets and abate increasing climate change in order to lessen extreme weather events, health problems, resource insecurity, unequal burdens, and so forth. Although such ‘environmental rights’ have yet to be recognized in Canadian courts – and are thus perpetually confronted with justiciability concerns – scholars and international courts have acknowledged the viability of such claims. Indeed, it is crucial to break down the assumptions that govern what is justiciable in order to ensure that the doctrine of justiciability does not act as a blunt tool to prevent the very development of the law on such issues. As Kennedy & Sossin have aptly written:
It is often said that Canadian constitutional law is best understood as a living tree. While… this metaphor remains apt, trees often need to be tended in order to thrive. This is particularly true when the tree is young, and before its roots are deep enough so that it can survive harsh weather. In Canada, the Charter[’s]… roots may not be deep enough to weather a storm that could be anything from a constitutional crisis to legislative malaise. Our prime gardeners are our courts. When someone calls for the gardener’s help, the gardener should not be reluctant to come.96
A reimagination of the traditional limits of Charter adjudication is required so that indeed, the gardener (our courts) cannot refuse to adjudicate systemic public interest claims. Without such change, it is unlikely the Charter will be able to adapt to provide redress to the anticipated rights infringements occurring from climate change.
In bringing a new lens of analysis to the justiciability debate, this paper sought to explore what theory about wicked problems could teach us about how to move forward. Just like policymakers realized years ago that environmental issues – and particularly climate change – would require creative solutions outside the confines of rigid, older rules, the legal system will also need to come to this realization in order to properly respond to legal dimensions of such risks. As Horn and Weber write:
If we step back and take a systemic view, we can see that the issue is not whose fault the mess is – the issue is our collective failure to recognize the recurring and inevitable dynamics of the mess.97
To move beyond non-justiciability, this paper explores ‘wicked problem’ theory and what lessons it may offer the adjudication of systemic and complex problems, like climate change. When applying the Charter, courts will need to accept the interconnectedness of different rights (and their justiciability), as well as participate in the iterative process of developing solutions to better understand the problems and how to solve them. As climate change worsens and infringes the enjoyment of our human rights on a largescale, courts will need to adapt the Charter to properly safeguard these rights. An ecological reading of the Charter must inevitably move away from the dichotomies that currently govern the justiciability of novel claims, and instead move towards recognizing the indivisibility of rights, as well as positive and negative obligations. We must drop the assumptions that propel us into individual, narrow, and incremental thinking, and opt instead to move towards a more flexible and creative approach. Rather than ruling novel public interest claims non-justiciable, Canadian courts should welcome the opportunity to protect our living tree and consider new Charter applications. Care must be taken so that the doctrine of justiciability does not prevent our living tree from growing at all. Indeed, its ability to survive the rising pressures of the climate crisis will depend on it.