Not in Anyone’s Backyard: Exploring Environmental Inequality under Section 15 of the Charter and Flexibility after Fraser v Canada

Abstract

Pollution hotspots exist across Canada and disproportionately affect low-income and racialized populations. Examples include Indigenous communities like Aamjiwnaang First Nation in Ontario or Beaver Lake Cree Nation in Alberta; predominantly Black communities in rural Nova Scotia; and poor neighbourhoods in urban cities like Toronto or Vancouver. Such communities face disproportionate environmental burdens due to their proximity to landfills, fossil fuel infrastructure, plastic pollution, and toxic waste. This proximity causes harrowing health effects that would otherwise not be acceptable elsewhere in Canada. Although these inequalities stem from a number of interrelated factors, the role of the state in regulating (and facilitating) polluting activity is key. Across jurisdictions, ministries grant pollution permits to new and existing facilities based on deficient regulatory standards laid out under environmental protection legislation. Ministry officials have direct control over when and where pollution occurs. This paper contends that the inequality that results from these regulatory frameworks triggers constitutional scrutiny under section 15 of the Charter of Rights and Freedoms. It is an example of adverse effects discrimination from a legislative framework that appears neutral on its face. Although the application of section 15 to environmental inequality is underexplored, recent developments in the jurisprudence suggest that remedying adverse (environmental) effects discrimination may be more viable than ever. This viability stems from the majority decision in Fraser v Canada (Attorney General), 2020 SCC 28, which introduced significant flexibility into the causation and evidentiary requirements needed to establish adverse effects discrimination under the section. Under the new framework, the popular slogan “Not in Anyone’s Backyard” might just be given room to transform from a longstanding aspiration to a new reality.