R. v. Hydro‑Québec, [1997] 3
S.C.R. 213
The Attorney General of Canada, acting for and
on behalf of Her Majesty The Queen Appellant
v.
Hydro‑Québec Respondent
and
The Attorney General of Quebec Mis
en cause
and
The Attorney General for Saskatchewan, IPSCO Inc.,
Société pour vaincre la pollution inc. (“S.V.P.”),
Pollution Probe, Great Lakes United (Canada),
Canadian Environmental Law Association and
Sierra Legal Defence Fund Interveners
Indexed as: R. v. Hydro‑Québec
File No.: 24652.
1997: February 10; 1997: September 18.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé,
Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Distribution of
legislative powers ‑‑ Environmental protection ‑‑
Federal legislation empowering Ministers to determine what substances are toxic
and to prohibit introduction of such substances into environment except in
accordance with specified terms and conditions ‑‑ Whether federal
legislation valid ‑‑ Whether legislation falls within Parliament’s
jurisdiction to make laws for peace, order and good government of Canada ‑‑
Whether legislation falls within Parliament’s criminal law jurisdiction ‑‑
Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.),
ss. 3 “environment”, “substance”, 11, 34, 35 ‑‑
Chlorobiphenyls Interim Order, P.C. 1989‑296, s. 6(a) ‑‑
Constitution Act, 1867, ss. 91 preamble, 91(27).
The respondent allegedly dumped polychlorinated
biphenyls (PCBs) into a river in early 1990. It was charged with two
infractions under s. 6(a) of the Chlorobiphenyls Interim Order,
which was adopted and enforced pursuant to ss. 34 and 35 of the Canadian
Environmental Protection Act. Sections 34 and 35 appear in Part II of the
Act, entitled “Toxic Substances”. Part II deals first with the identification
of substances that could pose a risk either to the environment or to human life
and health, and then provides a procedure for adding them to the List of Toxic
Substances in Schedule I (which contains a list of dangerous substances carried
over from pre‑existing legislation) and for imposing by regulations
requirements respecting the terms and conditions under which substances so
listed may be released into the environment. According to s. 11 of the
Act, a substance is toxic where “it is entering or may enter the environment”
under conditions “having or that may have an immediate or long‑term
harmful effect on the environment”, “constituting or that may constitute a
danger to the environment on which human life depends”, or “constituting or
that may constitute a danger in Canada to human life or health”. Section 3
defines a “substance” as “any distinguishable kind of organic or inorganic
matter, whether animate or inanimate” and the “environment” as “the components
of the Earth”. Section 34 provides for the regulation of substances on the
List of Toxic Substances. Section 35 is ancillary to s. 34. It provides
that where a substance is not listed in Schedule I (or where it is listed but
the Ministers of the Environment and of Health believe it is not adequately
regulated) and the Ministers believe that immediate action is required, an
“interim order” may be made in respect of the substance. Such orders may
contain any regulation which could have been made under s. 34, but they
remain in effect for only 14 days unless they are approved by the Governor in
Council. Failure to comply with regulations made under s. 34 or an order
made under s. 35 constitutes an offence under s. 113 of the Act. The
respondent brought a motion seeking to have ss. 34 and 35 of the Act as
well as s. 6(a) of the Interim Order itself declared ultra vires
the Parliament of Canada on the ground that they do not fall within the ambit
of any federal head of power set out in s. 91 of the Constitution Act,
1867 . The Attorney General of Quebec intervened in support of the
respondent’s position. The motion was granted in the Court of Québec, and an
appeal to the Superior Court was dismissed. A further appeal to the Court of
Appeal was also dismissed.
Held (Lamer C.J. and
Sopinka, Iacobucci and Major JJ. dissenting): The appeal should be allowed.
The impugned provisions are valid legislation under the criminal law power.
Per La Forest,
L’Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.: The environment is
not, as such, a subject matter of legislation under the Constitution Act,
1867 . Rather, it is a diffuse subject that cuts across many different
areas of constitutional responsibility, some federal, some provincial. If
a provision relating to the environment in pith and substance falls within the
parameters of any power assigned to the body that enacted the legislation, then
it is constitutionally valid.
Under s. 91(27) of the Constitution Act, 1867 ,
Parliament has been accorded plenary power to make criminal law in the widest
sense. It is entirely within Parliament’s discretion to determine what evil it
wishes by penal prohibition to suppress and what threatened interest it thereby
wishes to safeguard. Under s. 91(27), it is also within the discretion of
Parliament to determine the extent of blameworthiness that it wishes to attach
to a criminal prohibition. This power is of course subject to the “fundamental
justice” requirements of s. 7 of the Canadian Charter of Rights and
Freedoms , which may dictate a higher level of mens rea for serious
or “true” crimes. The Charter apart, the only qualification that has
been attached to Parliament’s plenary power over criminal law is that it cannot
be employed colourably. Like other legislative powers, it cannot permit
Parliament simply by legislating in the proper form to colourably invade areas
of exclusively provincial legislative competence. To determine whether such an
attempt is made, it is appropriate to determine whether a legitimate public
purpose underlies the prohibition.
The protection of the environment, through
prohibitions against toxic substances, constitutes a wholly legitimate public
objective in the exercise of the criminal law power. Protection of the
environment is an international problem that requires action by governments at
all levels. The legitimate use of the criminal law in no way constitutes an
encroachment on provincial legislative power, though it may affect matters
falling within the latter’s ambit. Parliament may validly enact prohibitions
under its criminal law power against specific acts for the purpose of
preventing pollution. This does not constitute an interference with provincial
legislative powers. The use of the federal criminal law power in no way
precludes the provinces from exercising their extensive powers under s. 92 to
regulate and control the pollution of the environment either independently or
in co-operation with federal action.
Broad wording is unavoidable in environmental
protection legislation because of the breadth and complexity of the subject.
The effect of requiring greater precision would be to frustrate the legislature
in its attempt to protect the public against the dangers flowing from
pollution. Part II of the Canadian Environmental Protection Act does
not deal with the protection of the environment generally, but simply with the
control of toxic substances that may be released into the environment under
certain restricted circumstances, through a series of prohibitions to which
penal sanctions are attached. There was no intention that the Act should bar
the use, importation or manufacture of all chemical products, but rather that
it should affect only those substances that are dangerous to the environment,
and then only if they are not otherwise regulated by law. The broad purpose
and effect of Part II is to provide a procedure for assessing whether out of
the many substances that may conceivably fall within the ambit of s. 11, some
should be added to the List of Toxic Substances in Schedule I and, when an
order to this effect is made, whether to prohibit the use of the substance so
added in the manner provided in the regulations made under s. 34(1) subject to
a penalty. These listed substances, toxic in the ordinary sense, are those
whose use in a manner contrary to the regulations the Act ultimately
prohibits. This is a limited prohibition applicable to a restricted number of
substances. The prohibition is enforced by a penal sanction and is undergirded
by a valid criminal objective, and so is valid criminal legislation. Specific
targeting of toxic substances based on individual assessment avoids resort to
unnecessarily broad prohibitions and their impact on the exercise of provincial
powers.
The interim order is also valid under s. 91(27)
of the Constitution Act, 1867 . PCBs are not only highly toxic but long
lasting and very slow to break down in water, air or soil. They are also
extremely mobile. As well, they dissolve readily in fat tissues and other
organic compounds, with the result that they move up the food chain. They pose
significant risks of serious harm to both animals and humans.
It is not necessary to consider whether the impugned
provisions fall within Parliament’s jurisdiction to make laws for the peace,
order and good government of Canada.
Per Lamer C.J. and
Sopinka, Iacobucci and Major JJ. (dissenting): The pith and substance of Part
II of the Canadian Environmental Protection Act lies in the wholesale
regulation by federal agents of any and all substances which may harm any
aspect of the environment or which may present a danger to human life or
health. While Parliament has been given broad and exclusive power to legislate
in relation to criminal law by virtue of s. 91(27) of the Constitution
Act, 1867 , the criminal law power has always been made subject to two
requirements: laws purporting to be upheld under s. 91(27) must contain
prohibitions backed by penalties, and they must be directed at a legitimate
public purpose. Although the protection of human health has been held to be a
legitimate public purpose, the impugned legislation goes well beyond this goal.
However, the protection of the environment is also a valid purpose of the
criminal law.
While the impugned provisions have a legitimate
criminal purpose, they fail to meet the other half of the test. They are not
intended to prohibit environmental pollution, but simply to regulate it, and
so do not qualify as criminal law under s. 91(27) . While a criminal law
may validly contain exemptions for certain conduct without losing its status as
criminal law, in order to have an exemption, there must first be a prohibition
in the legislation from which that exemption is derived. There are no such prohibitions
in the legislation at issue here. Sections 34 and 35 do not define an offence
at all. Rather, they establish a regulatory regime whereby the Ministers of
Health and the Environment can place substances on the List of Toxic Substances
and define the norms of conduct regarding those substances on an ongoing
basis. It would be an odd crime whose definition was made entirely dependent
on the discretion of the executive. The prohibitions in s. 113, such as
they are, are ancillary to the regulatory scheme, not the other way around.
This strongly suggests that the focus of the legislation is regulation rather
than prohibition. Section 34 allows for the regulation of every conceivable
aspect of toxic substances. It is highly unlikely that Parliament intended to
leave the criminalization of such a sweeping area of behaviour to the
discretion of the Ministers. Moreover, the equivalency provisions in
s. 34(6) of the Act, under which a province may be exempted from the
application of regulations if it already has equivalent regulations in force
there, creates a strong presumption that the federal regulations are
regulatory, not criminal, since any environmental legislation enacted by the
provinces must be regulatory in nature. Finally, granting Parliament the
authority to regulate so completely the release of substances into the
environment by determining whether or not they are “toxic” would inescapably
preclude the possibility of shared environmental jurisdiction and would
infringe severely on other heads of power assigned to the provinces.
Assuming that the protection of the environment and of
human life and health against any and all potentially harmful substances could
be a “new matter” which would fall under the peace, order and good government
power, that matter does not have the required singleness, distinctiveness and
indivisibility that clearly distinguishes it from matters of provincial
concern. The definition of “toxic substances” in s. 11, combined with the
definition of “substance” found in s. 3, is an all‑encompassing
definition with no clear limits. While s. 15 does specify some criteria
to refine the notion of “toxic substance”, it does not narrow the broad
definition of that notion, but only offers investigatory guidelines. Moreover,
the investigatory process provided for in s. 15 can be totally bypassed
where an interim order is issued pursuant to s. 35. With respect to
geographical limits, although the preamble of the Act suggests that its ambit
is restricted to those substances that “cannot always be contained within
geographic boundaries”, nowhere in Part II or the enabling provisions at issue
is there any actual limitation based on territorial considerations. Part II’s
failure to distinguish between types of toxic substances, either on the basis
of degree of persistence and diffusion into the environment and the severity of
their harmful effect or on the basis of their extraprovincial aspects,
demonstrates that the enabling provisions lack the necessary singleness, distinctiveness
and indivisibility. To the extent that Part II of the Act includes the
regulation of “toxic substances” that may only affect the particular province
within which they originate, the appellant bears a heavy burden to demonstrate
that provinces themselves would be incapable of regulating such toxic
emissions, a burden which it has not discharged.
The impugned legislation cannot be justified as an
exercise of the federal trade and commerce power.
Cases Cited
By La Forest J.
Referred to: Friends
of the Oldman River Society v. Canada (Minister of Transport), [1992] 1
S.C.R. 3; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Reference
re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; RJR‑MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v.
Morgentaler, [1993] 3 S.C.R. 463; Whitbread v. Walley, [1990] 3
S.C.R. 1273; Reference re Anti‑Inflation Act, [1976] 2 S.C.R.
373; Fowler v. The Queen, [1980] 2 S.C.R. 213; Attorney‑General
for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Proprietary
Articles Trade Association v. Attorney‑General for Canada, [1931]
A.C. 310; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R.
v. Rube, [1992] 3 S.C.R. 159; Scowby v. Glendinning, [1986] 2 S.C.R.
226; Lord’s Day Alliance of Canada v. Attorney General of British Columbia,
[1959] S.C.R. 497; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R.
1031; Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501; Reference re
Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; R. v.
Cosman’s Furniture (1972) Ltd. (1976), 32 C.C.C. (2d) 345; Morgentaler
v. The Queen, [1976] 1 S.C.R. 616; R. v. Wetmore, [1983] 2 S.C.R.
284; R. v. Furtney, [1991] 3 S.C.R. 89; Attorney‑General for
British Columbia v. Attorney‑General for Canada, [1937] A.C. 368; Boggs
v. The Queen, [1981] 1 S.C.R. 49; Schneider v. The Queen, [1982] 2
S.C.R. 112; Reference re Farm Products Marketing Act, [1957] S.C.R. 198;
Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662.
By Lamer C.J. and Iacobucci J. (dissenting)
R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Reference re Validity of Section 5(a) of
the Dairy Industry Act, [1949] S.C.R. 1; Friends of the Oldman River
Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v.
Sault Ste. Marie, [1978] 2 S.C.R. 1299; Reference re Anti‑Inflation
Act, [1976] 2 S.C.R. 373; Ontario v. Canadian Pacific Ltd., [1995]
2 S.C.R. 1031; RJR‑MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Boggs
v. The Queen, [1981] 1 S.C.R. 49; Labatt Breweries of Canada Ltd. v.
Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Wetmore,
[1983] 2 S.C.R. 284; Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R.
338; R. v. Morgentaler, [1993] 3 S.C.R. 463; R. v. Hauser, [1979]
1 S.C.R. 984; Thomson Newspapers Ltd. v. Canada (Director of Investigation
and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425;
R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Lord’s Day
Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R.
497; R. v. Furtney, [1991] 3 S.C.R. 89; R. v. Wholesale Travel Group
Inc., [1991] 3 S.C.R. 154; Attorney General of Nova Scotia v. Attorney
General of Canada, [1951] S.C.R. 31; General Motors of Canada Ltd. v.
City National Leasing, [1989] 1 S.C.R. 641.
Statutes and Regulations Cited
Canadian Charter of Rights and
Freedoms, ss. 7 , 8 .
Canadian Environmental
Protection Act, R.S.C., 1985, c. 16 (4th Supp.),
preamble, ss. 2(j), 3 “environment”, “substance”, 6, 11, 12, 13, 15
[am. 1992, c. 1, s. 35], 16, 18, 26, 32, 33, 34 [am. 1989, c. 9,
s. 2], 35, 113(f), (i), (o), (p), 114, 115(1)(a),
(b), 125(1).
Chlorobiphenyls Interim Order, P.C. 1989‑296, s. 6(a).
Constitution Act, 1867, ss. 91 preamble, 91(27), 92
Domestic Substances List, SI/91‑148, Canada Gazette, Part I Supp.,
January 26, 1991.
Domestic Substances List, SOR/94‑311 [am. SOR/95‑517].
Environmental Contaminants Act, R.S.C., 1985, c. E‑12 [rep. c. 16 (4th Supp.),
s. 147], ss. 4, 7(2).
Explosives Act, R.S.C., 1985, c. E‑17 .
Food and Drugs Act, R.S.C., 1985, c. F‑27, ss. 3 , 4 , 5(1) , 8 , 9(1) , 14 , 16 ,
20(1) .
Hazardous Products Act, R.S.C., 1985, c. H‑3 .
Priority Substances List, Canada Gazette, Part I, February 11, 1989,
p. 543.
Pulp and Paper Mill Defoamer
and Wood Chip Regulations, SOR/92‑268.
Pulp and Paper Mill Effluent
Chlorinated Dioxins and Furans Regulations, SOR/92‑267.
Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 9.
Toxic Substances Control Act, 15 U.S.C. § 2605(c).
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APPEAL from a judgment of the Quebec Court of Appeal,
[1995] R.J.Q. 398, 67 Q.A.C. 161, 17 C.E.L.R. (N.S.) 34, [1995] Q.J. No. 143
(QL), affirming a judgment of the Superior Court, [1992] R.J.Q. 2159, affirming
a decision of Babin Q.C.J., [1991] R.J.Q. 2736, declaring certain legislative
provisions to be ultra vires the Parliament of Canada. Appeal allowed,
Lamer C.J. and Sopinka, Iacobucci and Major JJ. dissenting.
Claude Joyal, James
Mabbutt, Q.C., Yves Leb{oe}uf and Jean Rhéaume, for
the appellant.
François Fontaine, Sophie
Perreault and Jean Piette, for the respondent.
Alain Gingras, for the mis
en cause.
Thomson Irvine, for the
intervener the Attorney General for Saskatchewan.
Robert G. Richards, for
the intervener IPSCO Inc.
Robert Astell, for the
intervener the Société pour vaincre la pollution inc.
Stewart A. G. Elgie and Paul R. Muldoon, for the interveners Pollution
Probe, Great Lakes United (Canada), Canadian Environmental Law Association and
Sierra Legal Defence Fund.
The reasons of Lamer C.J. and Sopinka, Iacobucci and
Major JJ. were delivered by
1
The Chief Justice and Iacobucci J. (dissenting) -- This
appeal arose as a result of an interim order made in 1989 by the then Minister
of the Environment of Canada, the Honourable Lucien Bouchard. It restricted
the emission of chlorobiphenyls (“PCBs”) to 1 gram per day. The respondent,
Hydro-Québec, was charged with breaching this Interim Order and challenged the
charges by claiming that the Interim Order, as well as the underlying
provisions supporting it, were ultra vires Parliament as invading
provincial territory.
2
We have had the advantage of reading the lucid reasons of La Forest J.
While we share his concern for the protection of the environment, we are of the
view that the impugned provisions cannot be justified under s. 91 of the Constitution
Act, 1867 , and are therefore ultra vires the federal government.
Because of our disagreement with our colleague’s approach, we will set out the
relevant factual and judicial background.
1. Facts
3
The respondent Hydro-Québec was charged with two infractions under s. 6(a)
of the Chlorobiphenyls Interim Order, P.C. 1989-296 (hereinafter “the
Interim Order”), adopted and enforced pursuant to ss. 34 and 35 of the
Canadian Environmental Protection Act, R.S.C., 1985, c.16 (4th Supp.). It
was alleged that the respondent:
[translation]
[1] From January 1 to January 3, 1990, did unlawfully
release more than 1 gram per day of chlorobiphenyls into the environment
contrary to s. 6(a) of the Chlorobiphenyls Interim Order,
P.C. 1989-29[6] of February 23, 1989, thereby committing an offence under
ss. 113(i) and (o) of the Canadian Environmental
Protection Act, R.S.C., 1985, c. 16 (4th Supp.);
[2] On or about January 8, 1990, following the release into the
environment, in contravention of s. 6(a) of the Chlorobiphenyls
Interim Order, P.C. 1989‑296 of February 23, 1989, of a
substance specified in Schedule I to the Canadian Environmental Protection
Act, R.S.C., 1985, c. 16 (4th Supp.), to wit: chlorobiphenyls . . .
did fail to report the matter to an inspector as soon as possible in the
circumstances contrary to s. 36(1)(a) of the said Act, thereby
committing an offence under ss. 113(h) and (o) of the said
Act.
4
On July 23, 1990, the respondent pleaded not guilty to both these
charges. It brought a motion before the Court of Québec to have ss. 34 and 35
of the Act as well as s. 6(a) of the Interim Order declared
unconstitutional as outside the federal government’s sphere of competence. On
August 12, 1991, the court granted this motion and struck down the provisions
in question: [1991] R.J.Q. 2736. An appeal to the Quebec Superior Court was
dismissed on August 6, 1992 ([1992] R.J.Q. 2159), as was a further appeal to
the Quebec Court of Appeal, on February 14, 1995 ([1995] R.J.Q. 398, 67 Q.A.C.
161, 17 C.E.L.R. (N.S.) 34, [1995] Q.J. No. 143 (QL)). On October 12, 1995,
this Court granted leave to appeal ([1995] 4 S.C.R. vii) and a constitutional
question, set forth below, was stated.
2. Relevant
Statutory and Constitutional Provisions
5
Chlorobiphenyls Interim Order, P.C. 1989-296
6. The quantity of chlorobiphenyls that may be
released into the environment shall not exceed 1 gram per day in respect of any
item of equipment or any receptacle or material containing equipment in the
course of the operation, servicing, maintenance, decommissioning, transporting
or storage of
(a) electrical capacitors and electrical transformers and
associated electrical equipment manufactured in or imported into Canada before
July 1, 1980;
Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th
Supp.)
It is hereby declared that
the protection of the environment is essential to the well‑being of
Canada.
Whereas
the presence of toxic substances in the environment is a matter of national
concern;
Whereas
toxic substances, once introduced into the environment, cannot always be
contained within geographic boundaries;
Whereas
the Government of Canada in demonstrating national leadership should establish
national environmental quality objectives, guidelines and codes of practice;
Whereas
it is necessary to control the dispersal of nutrients in Canadian waters;
Whereas
some of the laws under which federal lands, works and undertakings are
administered or regulated do not make provision for environmental protection in
respect of federal lands, works and undertakings;
And Whereas Canada
must be able to fulfil its international obligations in respect of the
environment;
3. (1) In this Act,
. . .
“environment” means the components of the Earth
and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and
living organisms, and
(d) the interacting natural systems that include components
referred to in paragraphs (a) to (c);
. . .
“substance” means any distinguishable kind of
organic or inorganic matter, whether animate or inanimate, and includes
(a) any matter that is capable of being dispersed in the
environment or of being transformed in the environment into matter that is
capable of being so dispersed or that is capable of causing such
transformations in the environment,
(b) any element or free radical,
(c) any combination of elements of a particular molecular
identity that occurs in nature or as a result of a chemical reaction, and
(d) complex combinations of different molecules that originate
in nature or are the result of chemical reactions but that could not
practicably be formed by simply combining individual constituents,
and, except for the purposes of sections 25 to 32, includes
(e) any mixture that is a combination of substances and does not
itself produce a substance that is different from the substances that were
combined,
(f) any manufactured item that is formed into a specific
physical shape or design during manufacture and has, for its final use, a
function or functions dependent in whole or in part on its shape or design, and
(g) any animate matter that is, or any complex mixtures of
different molecules that are, contained in effluents, emissions or wastes that
result from any work, undertaking or activity;
11. For the purposes of this Part, a
substance is toxic if it is entering or may enter the environment in a quantity
or concentration or under conditions
(a) having or that may have an immediate or long‑term
harmful effect on the environment;
(b) constituting or that may constitute a danger to the
environment on which human life depends; or
(c) constituting or that may constitute a danger in Canada to
human life or health.
15. For the purpose of assessing whether a
substance is toxic or is capable of becoming toxic, or for the purpose of
assessing whether to control, or the manner in which to control, a substance,
either Minister may
(a) collect data and conduct investigations respecting
(i) the nature of the substance,
(ii) the presence of the substance in the environment and the effect of
its presence on the environment or on human life or health,
(iii) the extent to which the substance can become dispersed and will
persist in the environment,
(iv) the ability of the substance to become incorporated or accumulate
in biological tissues or to interfere with biological processes,
(v) methods of controlling the presence of the substance in the
environment,
(vi) methods for testing the effects of the presence of the substance
in the environment,
(vii) development and use of alternatives to the substance,
(viii) quantities, uses and disposal of the substance, and
(ix) methods of reducing the amount of the substance used, produced or
released into the environment;
(b) correlate and evaluate any data collected pursuant to
paragraph (a) and publish results of any investigations carried out
pursuant to that paragraph; and
(c) provide information and consultative services and make
recommendations respecting measures to control the presence of the substance in
the environment.
34. (1) Subject to subsection (3), the
Governor in Council may, on the recommendation of the Ministers and after the
federal‑provincial advisory committee is given an opportunity to provide
its advice under section 6, make regulations with respect to a substance
specified on the List of Toxic Substances in Schedule I, including regulations
providing for, or imposing requirements respecting,
(a) the quantity or concentration of the substance that may be
released into the environment either alone or in combination with any other
substance from any source or type of source;
(b) the places or areas where the substance may be released;
(c) the commercial, manufacturing or processing activity in the
course of which the substance may be released;
(d) the manner in which and conditions under which the substance
may be released into the environment, either alone or in combination with any
other substance;
(e) the quantity of the substance that may be manufactured,
processed, used, offered for sale or sold in Canada;
(f) the purposes for which the substance or a product containing
the substance may be imported, manufactured, processed, used, offered for sale
or sold;
(g) the manner in which and conditions under which the substance
or a product containing the substance may be imported, manufactured, processed
or used;
(h) the quantities or concentrations in which the substance may
be used;
(i) the quantities or concentrations of the substance that may
be imported;
(j) the countries from or to which the substance may be imported
or exported;
(k) the conditions under which, the manner in which and the
purposes for which the substance may be imported or exported;
(l) the total, partial or conditional prohibition of the
manufacture, use, processing, sale, offering for sale, import or export of the
substance or a product containing the substance;
(m) the quantity or concentration of the substance that may be
contained in any product manufactured, imported, exported or offered for sale
in Canada;
(n) the manner in which and conditions under which and the
purposes for which the substance or a product containing the substance may be
advertised or offered for sale;
(o) the manner in which and conditions under which the substance
or a product or material containing the substance may be stored, displayed,
handled, transported or offered for transport;
(p) the packaging and labelling of the substance or a product or
material containing the substance;
(q) the manner, conditions, places and method of disposal of the
substance or a product or material containing the substance, including
standards for the construction, maintenance and inspection of disposal sites;
(r) the submission to the Minister, on request or at such times
as are prescribed, of information relating to the substance;
(s) the maintenance of books and records for the administration
of any regulation made under this section;
(t) the conduct of sampling, analyses, tests, measurements or
monitoring of the substance and the submission of the results to the Minister;
(u) the submission of samples of the substance to the Minister;
(v) the methods and procedures for conducting sampling,
analyses, tests, measurements or monitoring of the substance;
(w) circumstances or conditions under which the Minister may,
for the proper administration of this Act, modify
(i) any requirement for sampling, analyses, tests, measurements or
monitoring, or
(ii) the methods and procedures for conducting any required sampling,
analyses, tests, measurements or monitoring; and
(x) any other matter necessary to carry out the purposes of this
Part.
(2) The Governor in Council may, on the
recommendation of the Ministers, make regulations providing for the exemption
of the following activities from the application of this Part and any
regulations made under it, namely,
(a) the import, export, manufacture, use, processing, transport,
offering for transport, handling, packaging, labelling, advertising, sale,
offering for sale, displaying, storing, disposing or releasing into the
environment of any substance or a product or material containing any substance;
and
(b) the release of any substance into the environment, for a
period specified in the regulations, from any source or type of source.
(3) The Governor in Council shall not make a
regulation under subsection (1) in respect of any substance if, in the opinion
of the Governor in Council, the regulation regulates an aspect of the substance
that is regulated by or under any other Act of Parliament.
(4) A regulation made
under subsection (1) with respect to a substance may amend the List of Toxic
Substances in Schedule I so as to specify the type of regulation that applies
with respect to the substance.
(5) Except with respect
to Her Majesty in right of Canada, the provisions of a regulation made under
subsection (1) do not apply in any province in respect of which there is in
force an order, made under subsection (6), declaring that the provisions do not
apply.
(6) Where the Minister
and the government of a province agree in writing that there are in force by or
under the laws of the province
(a) provisions that are equivalent to
the provisions of a regulation made under subsection (1), and
(b) provisions that are similar to
sections 108 to 110 for the investigation of alleged offences under provincial
environmental legislation,
the Governor in Council may, on the
recommendation of the Minister, make an order declaring that the provisions of
the regulation do not apply in the province.
(7) The Minister shall
make public any agreement referred to in subsection (6).
(8) An agreement referred
to in subsection (6) may be terminated by either party giving to the other at
least six months notice of termination.
(9) The Governor in
Council may, on the recommendation of the Minister, revoke an order made under
subsection (6) where the agreement referred to in that subsection is
terminated.
(10) The Minister shall
include in the annual report required by section 138 a report on the
administration of subsections (5) to (9).
35. (1) Where
(a) a substance
(I) is not specified on the List of Toxic
Substances in Schedule I and the Ministers believe that it is toxic, or
(ii) is specified on that List and the
Ministers believe that it is not adequately regulated, and
(b) the Ministers believe that
immediate action is required to deal with a significant danger to the
environment or to human life or health,
the Minister may make an interim order in
respect of the substance and the order may contain any provision that may be
contained in a regulation made under subsection 34(1) or (2).
(2) Subject to subsection
(3), an interim order has effect
(a) from the time it is made; and
(b) as if it were a regulation made
under section 34.
(3) An interim order
ceases to have effect unless it is approved by the Governor in Council within
fourteen days after it is made.
(4) The Governor in
Council shall not approve an interim order unless
(a) the Minister has, within twenty‑four
hours after making the order, offered to consult the governments of all the
affected provinces to determine whether they are prepared to take sufficient
action to deal with the significant danger; and
(b) the Minister has consulted with
other ministers of the Crown in right of Canada to determine whether any action
can be taken under any other Act of Parliament to deal with the significant
danger.
(5) Where the Governor in
Council approves an interim order, the Ministers shall, within ninety days
after the approval, recommend to the Governor in Council
(a) that a regulation having the same
effect as the order be made under section 34; and
(b) if the order was made in respect
of a substance that was not specified on the List of Toxic Substances in
Schedule I, that the substance be added to that List under section 33.
(6) An interim order
(a) is exempt from the application of
sections 3, 5 and 11 of the Statutory Instruments Act; and
(b) shall be published in the Canada
Gazette within twenty‑three days after it is approved under
subsection (3).
(7) No person shall be
convicted of an offence consisting of a contravention of an interim order that,
at the time of the alleged contravention, was not published in the Canada
Gazette in both official languages unless it is proved that at the date of
the alleged contravention reasonable steps had been taken to bring the purport
of the order to the notice of those persons likely to be affected by it.
(8) An interim order
ceases to have effect when a regulation referred to in subsection (5) is made
or two years after the order was made, whichever is the earlier.
Constitution Act, 1867
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make Laws for the Peace,
Order, and good Government of Canada, in relation to all Matters not coming
within the Classes of Subjects by this Act assigned exclusively to the
Legislatures of the Provinces; and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section, it is hereby
declared that (notwithstanding anything in this Act) the exclusive Legislative Authority
of the Parliament of Canada extends to all Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say, --
. . .
27. The Criminal Law, except the Constitution
of Courts of Criminal Jurisdiction, but including the Procedure in Criminal
Matters.
. . .
And any Matter coming within any of the
Classes of Subjects enumerated in this Section shall not be deemed to come
within the Class of Matters of a local or private Nature comprised in the
Enumeration of the Classes of Subjects by this Act assigned exclusively to the
Legislatures of the Provinces.
3. Judicial History
A. Court of Québec
6
In Judge Babin’s view, the fundamental question was whether Parliament
had the power to regulate the emission of substances harmful to the environment
when that environment was situated within a province. Applying the criteria
set out by this Court in R. v. Crown Zellerbach Canada Ltd., [1988] 1
S.C.R. 401, to the Act, he held that the scope of the legislation was
unacceptably broad, largely owing to the sweeping definitions given to
“environment” and to “toxic”. The subject matter of the Act did not exhibit
the “singleness, distinctiveness and indivisibility” required by Crown
Zellerbach. Since a substance could be labelled “toxic” without even
necessarily having a harmful effect on human health, he held that the Act was
too broad to be sustained under the peace, order and good government power.
7
For similar reasons, he held that it could not be upheld as criminal law
either. Since risk to human health was not necessary for the federal
government to move in and impose regulations, he ruled that Part II of the Act
was legislation aimed primarily at protecting the environment, not at
protecting health. Applying the Reference re Validity of Section 5(a) of
the Dairy Industry Act, [1949] S.C.R. 1 (hereinafter the “Margarine
Reference”), he held that the impugned provisions were essentially
regulatory, with some [translation]
“provisions of a criminal nature”, and that they entrenched on areas of
jurisdiction reserved to the provinces. He declared s. 6(a) of the
Interim Order ultra vires and struck it down.
B. Quebec Superior Court
8
Trottier J. found that the definitions of “environment” and “toxic” in
the Act made it clear that the legislation was aimed at regulating toxic
substances generally, not just cases where there might be effects spreading
beyond the borders of a single province. He examined Crown Zellerbach, supra,
and Friends of the Oldman River Society v. Canada (Minister of Transport),
[1992] 1 S.C.R. 3, and agreed with Judge Babin that the peace, order and good
government power did not justify the Act. In order for the emission of toxic
substances anywhere in the environment to qualify as a matter of “national
concern” within Crown Zellerbach, he held that the provinces would have
to be unable to deal with this matter themselves, that it would have to concern
Canada as a whole, and that incapacity on the part of one province would have
to have real consequences outside the borders of that province. He did not
feel these criteria were met in this case, and so he could not support the Act
under the peace, order and good government power.
9
He also agreed that the Act was not supportable as criminal law.
Examining the provisions at issue, particularly s. 34, he concluded that their
aim was truly to regulate, not to prohibit, and that they were accordingly not
criminal law within the meaning of R. v. Sault Ste. Marie, [1978] 2
S.C.R. 1299. Since the Act could not be supported under either head of
jurisdiction, he dismissed the appeal.
C. Quebec Court of Appeal
10
Tourigny J.A. (Nichols and Chamberland JJ.A. concurring) characterized
the impugned provisions as being in pith and substance aimed at protecting the
environment. Applying Crown Zellerbach, supra, she held that the
broad provisions of the Act lacked the “singleness, distinctiveness and
indivisibility” necessary for a matter of national concern. Nor could the Act
be upheld under the emergency doctrine of the peace, order and good government
power. It was not a temporary measure, and the subject matter had not been proved
to be “urgent” within the meaning of the Reference re Anti-Inflation Act,
[1976] 2 S.C.R. 373.
11
Tourigny J.A. also held that the provisions of the Act greatly exceeded
the legitimate domain of criminal law, even though they took the form of a set
of prohibitions backed by penalties. She could not uphold the legislation
under peace, order and good government or under s. 91(27) , and so she too
dismissed the appeal.
4. Issues
12
On December 21, 1995, the following constitutional question was stated:
Do s. 6(a) of the Chlorobiphenyls Interim Order, P.C.
1989-296, and the enabling legislative provisions, ss. 34 and 35 of the Canadian
Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in
whole or in part within the jurisdiction of the Parliament of Canada to make
laws for the peace, order and good government of Canada pursuant to s. 91 of
the Constitution Act, 1867 or its criminal law jurisdiction under s.
91(27) of the Constitution Act, 1867 or otherwise fall within its
jurisdiction?
5. Analysis
13
While the constitutional question mentions the Interim Order and its
enabling provisions separately, there can be no doubt that the question of the
constitutional validity of the Interim Order will be raised only if its
enabling provisions themselves are found to be constitutional. That is, if ss.
34 and 35 of the Act are found to be ultra vires Parliament, it will
then become purely theoretical to analyse the constitutionality of the Interim
Order. See P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992
(loose-leaf)), vol. 1, at p. 14-7, and D. C. Holland and J. P. McGowan, Delegated
Legislation in Canada (1989), at pp. 170-71. Accordingly, these reasons
will focus on the constitutionality of the enabling provisions, ss. 34 and 35.
14
In order to address the issues raised by this appeal, it is necessary to
understand the legislative context of the impugned provisions. We will
therefore begin by briefly setting out this context.
A. The
Legislative Structure of the Act
15
The Canadian Environmental Protection Act was adopted by
Parliament in 1988. It consolidated and replaced several other laws dealing
with various kinds of environmental protection. Part II of the Act, which
contains ss. 34 and 35, is called “Toxic Substances” and deals with the
identification and regulation of substances which could potentially pose a risk
to the environment and/or to human health. According to s. 11 of the Act, a
substance is toxic where “it is entering or may enter the environment” under
conditions “having or that may have an immediate or long-term harmful effect on
the environment”, “constituting or that may constitute a danger to the
environment on which human life depends”, or “constituting or that may
constitute a danger in Canada to human life or health”. Section 3 broadly
defines a “substance” as “any distinguishable kind of organic or inorganic
matter, whether animate or inanimate” and the “environment” as “the components
of the Earth”. “Harmful effect” and “danger” are not defined.
16
The Act instructs the Ministers of the Environment and Health to compile
and maintain four lists: the Domestic Substances List (DSL), the Non-Domestic
Substances List (NDSL), the Priority Substances List (PSL) and the List of
Toxic Substances (LTS). The DSL includes all substances in use in Canada since
1986 (some 21,700 substances as of January 1991). The NDSL contains all other
substances. At present, the NDSL list includes over 41,000 substances. See E.
A. Fitzgerald, “The Constitutionality of Toxic Substances Regulation Under the
Canadian Environmental Protection Act” (1996), 30 U.B.C. L. Rev. 55, at
p. 70. There is a blanket restriction on importing NDSL substances into Canada
until they are approved (s. 26).
17
Sections 12 and 13 of the Act require the Ministers to compile a
“Priority Substances List” specifying those substances to which priority should
be given in determining whether or not they should be placed on the List of
Toxic Substances. Under s. 15, either the Minister of the Environment or the Minister
of Health may conduct investigations with a view to determining whether a given
substance is toxic. The Ministers may examine, inter alia, the nature
of the substance in question, its effects on natural biological processes, the
extent to which the substance will persist in the environment, its ability to
bio-accumulate, methods of controlling it, and methods of reducing the amount
of it used. Section 16 provides that the Minister of the Environment can
require private citizens to provide him or her with information about, or
samples of, substances which the Minister suspects may be toxic and under s.
18, the Minister can order that persons with information about a substance
which might be toxic provide that information to him or her.
18
Once a priority listed substance is found to be toxic within the meaning
of s. 11, the Ministers may recommend adding it to the List of Toxic
Substances. After a federal-provincial advisory committee (established under
s. 6) has been given an opportunity to provide its advice, the Governor in
Council may add the substance to the list and bring it under the regulatory
control of s. 34.
19
Section 34 provides for the regulation of substances on the List of
Toxic Substances. The Governor in Council is given extensive powers to
prescribe regulations dealing with every conceivable aspect of the listed
substance, including: the quantity or concentration in which it can be
released; the commercial or manufacturing activity in the course of which it
can be released; the quantity of that substance that can be manufactured,
imported, owned, sold, or used -- including total prohibitions on its manufacture,
importation, ownership, use or sale -- and likewise the manner in and purposes
for which it can be manufactured, imported, processed, used, offered for sale
or sold; the manner and conditions in which the substance may be advertised,
stored, displayed, handled, transported or offered for transport; the manner,
conditions, places and method of disposal of the substance; the maintenance of
books and records in respect of the substance; and the extent to which reports
must be made to the Minister regarding the monitoring of the substance.
Section 34(1)(x) allows the Governor in Council to regulate “any other
matter necessary to carry out the purposes of this Part”.
20
Where a substance is not on the List of Toxic Substances (or where it is
listed, but the Ministers believe that it is not adequately regulated), and
where the Ministers believe that immediate action is necessary in respect of
that substance, s. 35 allows for the making of “interim orders” without going
through the usual procedure. These orders can contain any regulation which
could have been made under s. 34, but they remain in effect for only 14 days
unless they are approved by the Governor in Council. Approval can be given
only if, inter alia, the Ministers have offered to consult with the
governments of any affected provinces to see whether they are prepared to take
sufficient action to deal with the threat posed by the substance (s. 35(4)).
According to s. 35(8), interim orders expire after two years, even if such
approval is granted.
21
As stated above, this appeal arose as a result of an interim order made
in 1989 by the then Minister of the Environment, the Honourable Lucien
Bouchard. It restricted the emission of chlorobiphenyls (“PCBs”) to 1 gram per
day. The respondent was charged with breaching this Interim Order and
challenged the charges by claiming that the Interim Order, as well as the
underlying provisions supporting it, were ultra vires Parliament.
22
Finally, the Act prescribes a number of civil and criminal penalties.
Section 113(f), for example, creates an offence of contravening
regulations made under s. 34. The punishment ranges from a maximum $300,000
fine or six months imprisonment (or both) on summary conviction to a maximum $1
million fine or three years imprisonment (or both) on indictment. A defence of
due diligence is allowed for all offences under the Act except those under s.
114 (knowingly providing false or misleading information), s. 115(1)(a)
(intentionally or recklessly causing an environmental disaster) or s. 115(1)(b)
(showing wanton or reckless disregard for the lives or safety of other
persons). These offences require a higher standard of moral culpability.
B. The
Pith and Substance of the Legislation
23
The manner of analysing matters involving division of powers is well
established: see Hogg, supra, at p. 15-6. The law in question must
first be characterized in relation to its “pith and substance”, that is, its
dominant or most important characteristic. One must then see if the law, seen
in this light, can be successfully assigned to one of the government’s heads of
legislative power.
24
In this case, the Quebec Court of Appeal held that, although one of the
effects of Part II of the Act is to protect human life and health, its pith and
substance lies in the protection of the environment (at p. 405):
[translation]
It can be seen from a careful examination of the provisions at issue that
Parliament has chosen to regulate the release of toxic substances into the
environment for the stated purpose of protecting human life and health. There
is of course no question that one of the effects of the adopted measures is to
promote the protection of human life and health. However, it is my view that
the pith and substance of both the Chlorobiphenyls Interim Order and the
enabling provisions pursuant to which it was made is the protection of the
environment.
25
The respondent Hydro-Québec and the mis en cause the Attorney
General of Quebec agree with this characterization and suggest that the true
goal of the legislation is the regulation of environmental protection, writ
large. The appellant, on the other hand, argues that the true object of Part
II of the Act is simply the control of pollution caused by toxic substances
(like PCBs), which are capable of being dispersed into the environment and
whose level of toxicity is such as to pose a serious risk of harm to the
environment and to human health and life. Several interveners support this
claim, submitting that the impugned provisions seek simply to create national
standards for the control of toxic substances. They cite in this regard
various government ministry and legislative committee reports: see, e.g.,
Environment Canada and Health and Welfare Canada, Final Report of the
Environmental Contaminants Act Amendments Consultative Committee (1986);
Environment Canada, The Right to a Healthy Environment: An Overview of the
Proposed Environmental Protection Act (1987).
26
In our view, the dominant characteristic of the impugned legislation is
apparent from its plain text. Part II of the Act seeks, at first glance, to
protect the environment, human health and life from harm owing to the release
of toxic substances. As noted above, it seeks to do so through extensive --
indeed, comprehensive -- regulation of these substances and the ways in which
they may come into contact with the environment. That being said, we believe
it is also necessary to consider the sweeping definitions given by the Act to
“environment” and “toxic substance”. Section 3 defines the “environment” as
follows:
3. (1) In this Act,
. . .
“environment” means the components of the Earth and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include components
referred to in paragraphs (a) to (c);
27
Even broader is the definition given to “substance”:
“substance” means any distinguishable kind of
organic or inorganic matter, whether animate or inanimate, and includes
(a) any matter that is capable of being dispersed in the
environment or of being transformed in the environment into matter that is
capable of being so dispersed or that is capable of causing such
transformations in the environment,
(b) any element or free radical,
(c) any combination of elements of a particular molecular
identity that occurs in nature or as a result of a chemical reaction, and
(d) complex combinations of different molecules that originate
in nature or are the result of chemical reactions but that could not
practicably be formed by simply combining individual constituents,
and, except for the purposes of sections 25 to 32, includes
(e) any mixture that is a combination of substances and does not
itself produce a substance that is different from the substances that were
combined,
(f) any manufactured item that is formed into a specific
physical shape or design during manufacture and has, for its final use, a
function or functions dependent in whole or in part on its shape or design, and
(g) any animate matter that is, or any complex mixtures of
different molecules that are, contained in effluents, emissions or wastes that
result from any work, undertaking or activity;
28
The Act is not, as was suggested by the appellant, aimed specifically at
chemical substances; rather, it purports to cover “any distinguishable kind of
organic or inorganic matter, whether animate or inanimate”. Section 11
determines when a substance will be “toxic”, and therefore subject to federal
regulation:
11. For the purposes of this Part, a
substance is toxic if it is entering or may enter the environment in a quantity
or concentration or under conditions
(a) having or that may have an immediate or long‑term
harmful effect on the environment;
(b) constituting or that may constitute a danger to the
environment on which human life depends; or
(c) constituting or that may constitute a danger in Canada to
human life or health.
29
Paragraphs 11(a) through (c) are not cumulative. It will
suffice to bring a substance under federal regulatory control that it pose a risk
to human life or health, part of the environment upon which human life depends,
or the environment itself.
30
In this regard, we note that we cannot, with respect, agree with our
colleague, La Forest J., that the criteria found in s. 11 are simply a “drafting
tool” or that to speak of s. 11 as a definition is “misleading”. The purpose
of this section is to delineate from the category of “substances” (as defined
by s. 3) those particular substances which qualify for regulation under ss. 34
and 35. It does so by specifying that “toxic” substances are, for the purposes
of Part II, those which are capable of posing one of the threats listed above.
This seems to us a clear statement of Parliament’s intentions in this area. As
was held in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at
p. 1050:
[T]he first task of a court construing a statutory provision is to
consider the meaning of its words in the context of the statute as a whole. If
the meaning of the words when they are considered in this context is clear,
there is no need for further interpretation. The basis for this general rule
is that when such a plain meaning can be identified this meaning can ordinarily
be said to reflect the legislature’s intention.
31
Nothing in the Act suggests that “toxic” is to be defined by any
criteria other than those given in s. 11. Moreover, no special definition is
given to the terms “harmful effect” and “danger”. It is, in our view,
accordingly clear from the wording of the legislation that “toxicity” is
intended to be conditional upon meeting the criteria set out in ss. 3 and 11(a)
to (c). If a substance (which can be essentially anything) poses or may
pose a risk to human life or health, or to the environment upon which human
life depends, or to any aspect of the environment itself, it qualifies as toxic
according to the Act and may be made the subject of comprehensive federal
regulation.
32
Nor are we convinced that the federal-provincial consultative process
contemplated in s. 35(4) of the Act has the effect of changing the character of
the impugned provisions. Although we understand why Parliament might wish to
seek the opinion of provincial legislatures before enacting regulations which
would affect areas under their supervision, nothing in the Act requires that
this process be anything other than consultative. That is, once having
consulted affected provincial governments, Parliament is left free to pass
whatever regulations it sees fit in order to address the threat posed by
substances qualifying as “toxic”.
33
In light of these factors, we believe the pith and substance of Part II
of the Act lies in the wholesale regulation by federal agents of any and all
substances which may harm any aspect of the environment or which may present a
danger to human life or health. That is, the impugned provisions are in pith
and substance aimed at protecting the environment and human life and health
from any and all harmful substances by regulating these substances. It remains
to be seen whether this can be justified under any of the heads of power listed
in s. 91 of the Constitution Act, 1867 . In that connection, we will
begin by considering s. 91(27) , the criminal law power.
C. The
Criminal Law Power
34
Parliament has been given broad and exclusive power to legislate in
relation to criminal law by virtue of s. 91(27) : RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199; Scowby v. Glendinning,
[1986] 2 S.C.R. 226. This power has traditionally been construed generously.
As La Forest J. noted in RJR-MacDonald, at p. 240, “[i]n developing a
definition of the criminal law, this Court has been careful not to freeze the
definition in time or confine it to a fixed domain of activity”.
35
Nevertheless, the criminal law power has always been made subject to two
requirements: laws purporting to be upheld under s. 91(27) must contain
prohibitions backed by penalties; and they must be directed at a “legitimate
public purpose” (Scowby, at p. 237). As Rand J. stated in the Margarine
Reference, supra, at pp. 49-50:
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can properly look
for some evil or injurious or undesirable effect upon the public against which
the law is directed. That effect may be in relation to social, economic or
political interests; and the legislature has had in mind to suppress the evil
or to safeguard the interest threatened.
.
. .
Is the prohibition then enacted with a view to a
public purpose which can support it as being in relation to criminal law?
Public peace, order, security, health, morality: these are the ordinary though
not exclusive ends served by that law....
36
These two criteria have been consistently applied: see e.g. Boggs v.
The Queen, [1981] 1 S.C.R. 49; Labatt Breweries of Canada Ltd. v.
Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Wetmore,
[1983] 2 S.C.R. 284; Scowby, supra; RJR-MacDonald, supra;
see also Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, at p.
348. Criminal law under s. 91(27) must attempt to achieve a criminal public
purpose through the imposition of prohibitions and penalties. Colourable
attempts to invade areas of provincial jurisdiction under the guise of criminal
legislation will be declared ultra vires. As La Forest J. wrote in RJR-MacDonald,
at p. 246:
The scope of the federal power to create criminal legislation with
respect to health matters is broad, and is circumscribed only by the
requirements that the legislation must contain a prohibition accompanied by a
penal sanction and must be directed at a legitimate public health evil. If
a given piece of federal legislation contains these features, and if that
legislation is not otherwise a “colourable” intrusion upon provincial
jurisdiction, then it is valid as criminal law.... [Emphasis added.]
37
These comments were made in the context of criminal legislation
concerning health, but we see no reason why they should not be of general
application as regards s. 91(27) . See also R. v. Morgentaler, [1993] 3
S.C.R. 463; R. v. Hauser, [1979] 1 S.C.R. 984.
38
The next step is therefore to examine the impugned provisions and
determine whether they meet these criteria. In our view, they fall short.
While the protection of the environment is a legitimate public purpose which
could support the enactment of criminal legislation, we believe the impugned
provisions of the Act are more an attempt to regulate environmental pollution
than to prohibit or proscribe it. As such, they extend beyond the purview of
criminal law and cannot be justified under s. 91(27) .
(i) A Legitimate Public Purpose
39
The appellant and several interveners urged us to uphold the provisions
as related to health, one of the criminal public purposes recognized in the Margarine
Reference, supra. In this regard, they cited numerous studies outlining
the hazardous effects of PCBs, which were the subject of the Interim Order that
gave rise to this litigation. See e.g. Canadian Council of Resource and
Environment Ministers, The PCB Story (1986); Health and Welfare Canada,
A Review of the Toxicology and Human Health Aspects of PCB’s (1978-1982)
(1985). With respect, the toxicity of PCBs, while clearly important to the
environment itself, is not directly relevant to this appeal, since what is at
issue is not simply the Interim Order, but the enabling provisions under which
that order was enacted. That is, the question is not whether PCBs pose a
danger to human health, which it appears they clearly do, but whether the Act
purports to grant federal regulatory power over substances which may not
pose such a danger.
40
In our view, there is no question but that the Act does so. Section 11
provides as follows:
11. For the purposes of this Part, a
substance is toxic if it is entering or may enter the environment in a quantity
or concentration or under conditions
(a) having or that may have an immediate or long‑term
harmful effect on the environment;
(b) constituting or that may constitute a danger to the
environment on which human life depends; or
(c) constituting or that may constitute a danger in Canada to
human life or health.
41
As noted above, these are not cumulative requirements. It is not
necessary that a substance constitute a danger to human life or health for it
to be labelled “toxic” and brought under federal control; under s. 11(a),
it is enough that it may have a harmful effect on the environment. It is not
even necessary to show that the aspect of the environment threatened be one
upon which human life depends; this is made a separate category under s. 11(b),
and should not, therefore, be read into s. 11(a). A substance which
affected groundhogs, for example, but which had no effect on people could be
labelled “toxic” under s. 11(a) and made subject to wholesale federal
regulation.
42
By defining “toxic” in this way, Parliament has taken explicit steps to
ensure that no risk to human life or health, direct or indirect, would have to
be proven before regulatory control could be assumed over a given substance.
As such, we cannot see how the provisions can be upheld as legislation relating
to health. Their scope extends well beyond matters relating to human health
into the realm of general ecological protection. Parliament’s clear intention
was to allow for federal intervention where the environment itself was at risk,
whether or not the substances concerned posed a threat to human health and
whether or not the aspect of the environment affected was one on which human
life depended. Having specifically excluded both direct and indirect danger to
human health as preconditions for the application of these provisions,
Parliament cannot now say that they were enacted in order to guard against such
dangers.
43
To the extent that La Forest J. suggests that this legislation is
supportable as relating to health, therefore, we must respectfully disagree.
We agree with him, however, that the protection of the environment is itself a
legitimate criminal public purpose, analogous to those cited in the Margarine
Reference, supra. We would not add to his lucid reasoning on this
point, save to state explicitly that this purpose does not rely on any of the
other traditional purposes of criminal law (health, security, public order,
etc.). To the extent that Parliament wishes to deter environmental pollution
specifically by punishing it with appropriate penal sanctions, it is free to do
so, without having to show that these sanctions are ultimately aimed at
achieving one of the “traditional” aims of criminal law. The protection of the
environment is itself a legitimate basis for criminal legislation.
44
However, we still do not feel that the impugned provisions qualify as
criminal law under s. 91(27) . While they have a legitimate criminal purpose,
they fail to meet the other half of the Maragarine Reference test. The
structure of Part II of the Act indicates that they are not intended to
prohibit environmental pollution, but simply to regulate it. As we will now
explain in further detail, they are not, therefore, criminal law: see Hauser,
supra, at p. 999.
(ii) Prohibitions Backed by Penalties
45
Ascertaining whether a particular statute is prohibitive or regulatory
in nature is often more of an art than a science. As Cory J. acknowledged in Knox
Contracting, supra, what constitutes criminal law is often “easier
to recognize than define” (p. 347). Some guidelines have, however, emerged
from previous jurisprudence.
46
The fact that a statute contains a prohibition and a penalty does not
necessarily mean that statute is criminal in nature. Regulatory statutes
commonly prohibit violations of their provisions or regulations promulgated
under them and provide penal sanctions to be applied if violations do, in fact,
occur. Any regulatory statute that lacked such prohibitions and penalties
would be meaningless. However, as La Forest J. himself recognized in Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 508-17, and in R.
v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at p. 650, the penalties
that are provided in a regulatory context serve a “pragmatic” or “instrumental”
purpose and do not transform the legislation into criminal law. (Also see Wetmore,
supra, Scowby, supra, and Knox Contracting,
supra.) In environmental law, as in competition law or income tax law,
compliance cannot always be ensured by the usual regulatory enforcement
techniques, such as periodic or unannounced inspections. Hence, in order to
ensure that legal standards are being met, a strong deterrent, the threat of
penal sanctions, is necessary. La Forest J. relied on this rationale in
concluding that the penal sanctions contained in the Competition Act (in
Thomson Newspapers) and the Income Tax Act (in McKinlay
Transport) did not affect the characterization of those statutes as
regulatory in nature for purposes of s. 8 of the Canadian Charter of Rights
and Freedoms .
47
At the same time, however, a criminal law does not have to consist
solely of blanket prohibitions. It may, as La Forest J. noted in RJR-MacDonald,
supra, at pp. 263-64, “validly contain exemptions for certain conduct
without losing its status as criminal law”. See also Lord’s Day Alliance of
Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Morgentaler,
supra; R. v. Furtney, [1991] 3 S.C.R. 89. These exemptions may
have the effect of establishing “regulatory” schemes which confer a measure of
discretionary authority without changing the character of the law, as was the
case in RJR-MacDonald.
48
Determining when a piece of legislation has crossed the line from
criminal to regulatory involves, in our view, considering the nature and extent
of the regulation it creates, as well as the context within which it purports to
apply. A scheme which is fundamentally regulatory, for example, will not be
saved by calling it an “exemption”. As Professor Hogg suggests, supra,
at p. 18-26, “the more elaborate [a] regulatory scheme, the more likely it is
that the Court will classify the dispensation or exemption as being regulatory
rather than criminal”. At the same time, the subject matter of the impugned
law may indicate the appropriate approach to take in characterizing the law as
criminal or regulatory.
49
Having examined the legislation at issue in this case, we have no doubt
that it is essentially regulatory in nature, and therefore outside the scope of
s. 91(27) . In order to have an “exemption”, there must first be a prohibition
in the legislation from which that exemption is derived. Thus, the Tobacco
Products Control Act, S.C. 1988, c. 20, at issue in RJR-MacDonald, supra,
contained broad prohibitions against the advertising and promotion of tobacco
products in Canada. Section 4 of that Act provided that “[n]o person shall
advertise any tobacco product offered for sale in Canada”. It also provided a
labelling requirement in the form of a prohibition, stating in s. 9 that it was
illegal to sell tobacco products without printed health warnings. Any
exemptions from these general prohibitions were just that -- exceptions to a
general rule.
50
Similarly, the Food and Drugs Act, R.S.C., 1985, c. F-27 , upheld
in Wetmore, supra, contains several prohibitions at the beginning
of its Part I. It prohibits, inter alia, the advertising of any food,
drug, cosmetic or device with respect to a prescribed list of diseases,
disorders or abnormal physical states (s. 3); the selling of food or drug that
is adulterated or prepared under unsanitary conditions (ss. 4 and 8 ); the labelling,
packaging, selling or advertising of any food, drug or device in a manner that
is false, misleading or deceptive (ss. 5(1) , 9(1) and 20(1) ); the distribution
of any drug as a sample (s. 14 ); and the selling of any cosmetic that may cause
injury to the health of the user or was prepared under unsanitary conditions
(s. 16 ). There are also a number of prohibitions with respect to controlled
drugs in Part III of the Act and restricted drugs in Part IV.
51
In the legislation at issue in this appeal, on the other hand, no such
prohibitions appear. Section 34(1) of the Canadian Environmental Protection
Act reads as follows:
34. (1) Subject to subsection (3), the
Governor in Council may, on the recommendation of the Ministers and after the
federal‑provincial advisory committee is given an opportunity to provide
its advice under section 6, make regulations with respect to a substance
specified on the List of Toxic Substances in Schedule I, including regulations
providing for, or imposing requirements respecting,
(a) the quantity or concentration of the substance that may be
released into the environment either alone or in combination with any other
substance from any source or type of source;
(b) the places or areas where the substance may be released;
(c) the commercial, manufacturing or processing activity in the
course of which the substance may be released;
(d) the manner in which and conditions under which the substance
may be released into the environment, either alone or in combination with any
other substance;
(e) the quantity of the substance that may be manufactured,
processed, used, offered for sale or sold in Canada;
(f) the purposes for which the substance or a product containing
the substance may be imported, manufactured, processed, used, offered for sale
or sold;
(g) the manner in which and conditions under which the substance
or a product containing the substance may be imported, manufactured, processed
or used;
(h) the quantities or concentrations in which the substance may
be used;
(i) the quantities or concentrations of the substance that may
be imported;
(j) the countries from or to which the substance may be imported
or exported;
(k) the conditions under which, the manner in which and the
purposes for which the substance may be imported or exported;
(l) the total, partial or conditional prohibition of the
manufacture, use, processing, sale, offering for sale, import or export of the
substance or a product containing the substance;
(m) the quantity or concentration of the substance that may be
contained in any product manufactured, imported, exported or offered for sale
in Canada;
(n) the manner in which and conditions under which and the
purposes for which the substance or a product containing the substance may be
advertised or offered for sale;
(o) the manner in which and conditions under which the substance
or a product or material containing the substance may be stored, displayed,
handled, transported or offered for transport;
(p) the packaging and labelling of the substance or a product
or material containing the substance;
(q) the manner, conditions, places and method of disposal of the
substance or a product or material containing the substance, including
standards for the construction, maintenance and inspection of disposal sites;
(r) the submission to the Minister, on request or at such times
as are prescribed, of information relating to the substance;
(s) the maintenance of books and records for the administration
of any regulation made under this section;
(t) the conduct of sampling, analyses, tests, measurements or
monitoring of the substance and the submission of the results to the Minister;
(u) the submission of samples of the substance to the Minister;
(v) the methods and procedures for conducting sampling,
analyses, tests, measurements or monitoring of the substance;
(w) circumstances or conditions under which the Minister may,
for the proper administration of this Act, modify
(i) any requirement for sampling, analyses, tests, measurements or
monitoring, or
(ii) the methods and procedures for conducting any required sampling,
analyses, tests, measurements or monitoring; and
(x) any other matter necessary to carry out the purposes of this
Part.
52
This section is not ancillary to existing prohibitions found elsewhere
in the Act or to exemptions to such prohibitions. It is not itself prohibitory
in nature. In fact, the only time the word “prohibition” appears in s. 34(1)
is in s. 34(1)(l), which provides that the Governor in Council may,
at his or her discretion, prohibit the manufacture, import, use or sale of a
given substance. Clearly, this is not analogous to the broad general
prohibitions found in the statutes cited above.
53
The only other mentions of prohibition in relation to the impugned
provisions are in ss. 113(f) and 113(i) of the Act, which provide
that failure to comply with a regulation made under ss. 34 or 35 is an
offence. The prohibitions, such as they are, are ancillary to the regulatory
scheme, not the other way around. This strongly suggests that the focus of the
legislation is regulation rather than prohibition.
54
Moreover, as Professor Hogg notes, supra, at p. 18-24:
A criminal law ordinarily consists of a prohibition which is to be
self-applied by the persons to whom it is addressed. There is not normally any
intervention by an administrative agency or official prior to the application
of the law. The law is “administered” by law enforcement officials and courts
of criminal jurisdiction only in the sense that they can bring to bear the
machinery of punishment after the prohibited conduct has occurred.
55
In this case, there is no offence until an administrative agency
“intervenes”. Sections 34 and 35 do not define an offence at all: which, if
any, substances will be placed on the List of Toxic Substances, as well as the
norms of conduct regarding these substances, are to be defined on an on-going
basis by the Ministers of Health and the Environment. It would be an odd crime
whose definition was made entirely dependent on the discretion of the Executive.
This further suggests that the Act’s true nature is regulatory, not criminal,
and that the offences created by s. 113 are regulatory offences, not “true
crimes”: see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, per
Cory J. Our colleague, La Forest J., would hold that the scheme of the
impugned act is an effective means of avoiding unnecessarily broad prohibitions
and carefully targeting specific toxic substances. The regulatory mechanism
allows the schemes to be changed flexibly, as the need arises. Of course,
simply because a scheme is effective and flexible does not mean it is intra
vires the federal Parliament.
56
This is particularly true in light of the striking breadth of the
impugned provisions. The 24 listed heads of authority in s. 34 allow for the
regulation of every conceivable aspect of toxic substances; in fact, in case
anything was left out, s. 34(1)(x) provides for regulations concerning
“any other matter necessary to carry out the purposes of this Part”. It is
highly unlikely, in our opinion, that Parliament intended to leave the
criminalization of such a sweeping area of behaviour to the discretion of the
Ministers of Health and the Environment.
57
Moreover, this process is further complicated by the equivalency provisions
in s. 34(6) of the Act. Under this provision, the Governor in Council may
exempt a province from the application of regulations made under ss. 34 or 35
if that province already has equivalent regulations in force there. This would
be a very unusual provision for a criminal law. Provinces do not have the
jurisdiction to enact criminal legislation, nor can the federal government
delegate such jurisdiction to them: Attorney General of Nova Scotia v.
Attorney General of Canada, [1951] S.C.R. 31. Any environmental
legislation enacted by the provinces must, therefore, be of a regulatory
nature. Deferring to provincial regulatory schemes on the basis that they are
“equivalent” to federal regulations made under s. 34(1) creates a strong
presumption that the federal regulations are themselves also of a regulatory,
not criminal, nature.
58
The appellant relies on this Court’s decision in RJR-MacDonald,
supra, arguing that the statutory regime in this case is analogous to that
upheld (on division of powers grounds) in RJR-MacDonald. We believe
this reliance is, with respect, misplaced. As noted above, the legislation at
issue in RJR-MacDonald contained broad prohibitions, tempered by certain
exemptions. The impugned provisions in this case, on the other hand, involve
no such general prohibition. In our view, they can only be characterized as a
broad delegation of regulatory authority to the Governor in Council. The aim of
these provisions is not to prohibit toxic substances or any aspect of their
use, but simply to control the manner in which these substances will be allowed
to interact with the environment.
59
RJR-MacDonald, may be further distinguished, in our view. The Tobacco
Products Control Act addressed a narrow field of activity: the advertising
and promotion of tobacco products. The impugned provisions here deal with a
much broader area of concern: the release of substances into the environment.
This Court has unanimously held that the environment is a subject matter of
shared jurisdiction, that is, that the Constitution does not assign it
exclusively to either the provinces or Parliament: Oldman River, supra,
at p. 63; see also Crown Zellerbach, supra, at pp. 455-56, per
La Forest J. A decision by the framers of the Constitution not to give one
level of government exclusive control over a subject matter should, in our
opinion, act as a signal that the two levels of government are meant to operate
in tandem with regard to that subject matter. One level should not be allowed
to take over the field so as to completely dwarf the presence of the other.
This does not mean that no regulation will be permissible, but wholesale
regulatory authority of the type envisaged by the Act is, in our view,
inconsistent with the shared nature of jurisdiction over the environment. As
La Forest J. noted in his dissenting reasons in Crown Zellerbach, at p.
455, “environmental pollution alone [i.e. as a subject matter of legislative
authority] is itself all-pervasive. It is a by-product of everything we do.
In man’s relationship with his environment, waste is unavoidable.”
60
We agree completely with this statement. Almost everything we do
involves “polluting” the environment in some way. The impugned provisions
purport to grant regulatory authority over all aspects of any substance whose
release into the environment “ha[s] or ... may have an immediate or long-term
harmful effect on the environment” (s. 11(a)). One wonders just what,
if any, role will be left for the provinces in dealing with environmental
pollution if the federal government is given such total control over the
release of these substances. Moreover, the countless spheres of human activity,
both collective and individual, which could potentially fall under the ambit of
the Act are apparent. Many of them fall within areas of jurisdiction granted
to the provinces under s. 92. Granting Parliament the authority to regulate so
completely the release of substances into the environment by determining
whether or not they are “toxic” would not only inescapably preclude the
possibility of shared environmental jurisdiction; it would also infringe
severely on other heads of power assigned to the provinces. In this respect,
we can do no better than to quote Professor Gibson, who wrote as follows in his
article “Constitutional Jurisdiction over Environmental Management in Canada”
(1973), 23 U.T.L.J. 54, at p. 85:
[I]t is . . . obvious that ‘environmental management’ could never be
treated as a constitutional unit under one order of government in any
constitution that claimed to be federal, because no system in which one
government was so powerful would be federal.
61
For all of the above reasons, we are unable to uphold the impugned
provisions of the Act under the federal criminal law power. That being said,
we wish to add that none of this should be read as foredooming future attempts
by Parliament to create an effective national -- or, indeed, international --
strategy for the protection of the environment. We agree with La Forest J.
that achieving such a strategy is a public purpose of extreme importance and
one of the major challenges of our time. There are, in this regard, many
measures open to Parliament which will not offend the division of powers set
out by the Constitution, notably the creation of environmental crimes.
Nothing, in our view, prevents Parliament from outlawing certain kinds of
behaviour on the basis that they are harmful to the environment. But such
legislation must actually seek to outlaw this behaviour, not merely
regulate it.
62
Other potential avenues include the power to address interprovincial or
international environmental concerns under the peace, order and good government
power, which is discussed below. Parliament is not without power to act in
pursuit of national policies on environmental protection. But it must do so
pursuant to the balance of powers assigned by ss. 91 and 92 . Environmental
protection must be achieved in accordance with the Constitution, not in spite
of it. As Professor Bowden concludes in her case comment on Oldman River,
supra, (1992), 56 Sask. L. Rev. 209, at pp. 219-20, “it is only
through legislative and policy initiatives at and between both levels of
government that satisfactory solutions may be attainable”.
63
The impugned provisions are not justified under s. 91(27) of the Constitution
Act, 1867 . We will now consider the appellant’s second argument, namely
that the provisions may be upheld under the peace, order and good government
power.
D. Peace, Order and Good Government
64
The appellant argues that ss. 34 and 35 of the Act fall within
the residual jurisdiction of Parliament under the peace, order and good
government (POGG) power to legislate respecting matters of national concern, as
provided for in the introductory paragraph of s. 91 of the Constitution Act,
1867 . No argument is made with respect to the national emergency branch of
POGG, and therefore only the national concern doctrine is at issue.
65
The jurisprudence of this Court with respect to the peace, order and
good government provision of the Constitution was thoroughly reviewed by Le
Dain J. for the majority in Crown Zellerbach, supra. Relying on
Beetz J.’s comments in Reference re Anti-Inflation Act, supra, Le
Dain J. adopted the following criteria in order to determine whether a matter
constitutes a “national concern”, at pp. 431-32:
1. The national concern doctrine is separate
and distinct from the national emergency doctrine of the peace, order and good
government power, which is chiefly distinguishable by the fact that it provides
a constitutional basis for what is necessarily legislation of a temporary nature;
2. The national concern doctrine applies to
both new matters which did not exist at Confederation and to matters which,
although originally matters of a local or private nature in a province, have
since, in the absence of national emergency, become matters of national
concern;
3. For a matter to qualify as a matter of
national concern in either sense it must have a singleness, distinctiveness and
indivisibility that clearly distinguishes it from matters of provincial concern
and a scale of impact on provincial jurisdiction that is reconcilable with the
fundamental distribution of legislative power under the Constitution;
4. In determining whether a matter has attained
the required degree of singleness, distinctiveness and indivisibility that
clearly distinguishes it from matters of provincial concern it is relevant to
consider what would be the effect on extra-provincial interests of a provincial
failure to deal effectively with the control or regulation of the
intra-provincial aspects of the matter.
66
Assuming that the protection of the environment and of human life and
health against any and all potentially harmful substances could be a “new
matter” which would fall under the POGG power, we must then determine whether
that matter has the required “singleness, distinctiveness and indivisibility
that clearly distinguishes it from matters of provincial concern” and whether
its “impact on provincial jurisdiction ... is reconcilable with the fundamental
distribution of legislative power under the Constitution”. Only if these
criteria are satisfied will the matter be one of national concern.
(i) Singleness, Distinctiveness and Indivisibility
67
The test for singleness, distinctiveness and indivisibility is a demanding
one. Because of the high potential risk to the Constitution’s division of
powers presented by the broad notion of “national concern”, it is crucial that
one be able to specify precisely what it is over which the law purports to
claim jurisdiction. Otherwise, “national concern” could rapidly expand to
absorb all areas of provincial authority. As Le Dain J. noted in Crown
Zellerbach, supra, at p. 433, once a subject matter is qualified of
national concern, “Parliament has an exclusive jurisdiction of a plenary nature
to legislate in relation to that matter, including its intra-provincial
aspects”.
68
The appellant submits that the object of Part II of the Act is limited
in scope in that there is a clear distinction between chemical substances whose
pollutant effects are diffuse and persist in the environment and other types of
pollution whose effects are temporary and more local in nature. Therefore,
being a single, distinct and indivisible form of pollution which can cross
provincial boundaries, chemical pollution requires particular national measures
for its proper control. However, as we have shown above, Part II of the Act
applies to a wide array of substances, not only to chemical polluants.
Moreover, the impugned legislation is not limited to substances having
interprovincial effects.
69
The definition of “toxic substances” in s. 11, combined with the
definition of “substance” found in s. 3, is an all-encompassing definition with
no clear limits. Many human activities could involve the use of materials
falling within the meaning of “toxic substances” as defined by the impugned
legislation. As noted earlier, the definition of “substance” includes “organic
or inorganic matter, whether animate or inanimate”. Paragraphs (a)
through (g) of the definition in s. 3(1) do little to narrow this
initial broad scope. Paragraph (g), which refers to “any animate matter
... contained in effluents, emissions or wastes that result from any work,
undertaking or activity” could, on its plain wording, conceivably include any
effluent containing human or animal waste, garbage containing food remnants, or
similar items commonly dealt with by municipal waste disposal services.
70
Furthermore, by virtue of s. 11(a), a “toxic substance” may be
any form of distinguishable matter which has or even simply may have “an
immediate or long-term harmful effect on the environment”. Section 11(a)
equates “toxic” with “harmful effect”. In our opinion, this is a very broad
definition of “toxic”. While it would be difficult to disagree that “toxic”
necessarily implies a “harmful effect”, the converse, “that which has a harmful
effect is toxic” is more questionable and quite exceeds the plain and ordinary
meaning of “toxic”. “Toxic” is more narrowly defined in The Concise Oxford
Dictionary (9th ed. 1995), at p. 1475, as “of or relating to poison (toxic
symptoms); poisonous (toxic gas); caused by poison (toxic anaemia)”.
A more circumscribed definition of “toxic substances” would be required in ss.
11 and 3 of the Act in order to give substance to the appellant’s submission
that this legislation is aimed at a distinct form of pollution, namely chemical
pollution.
71
Section 15 does specify some criteria to refine the notion of “toxic
substance”. However, it does not narrow the broad definition of that notion.
Section 15 only offers investigatory guidelines. The Minister of the
Environment and the Governor in Council are not legally bound by any of the
investigatory reports prepared pursuant to s. 15. The scope of the Minister’s
power to regulate in ss. 34 and 35 is limited only by the broad definition of
“toxic substance” and “environment” in ss. 11 and 3. Moreover, the
investigatory process provided for in s. 15 can be totally bypassed with
respect to the issuing of an interim order pursuant to s. 35. Under the powers
conferred by s. 35(1), the Minister of the Environment may issue an interim
order, which has the same regulatory scope and effect as a regulation under s.
34(1) or (2), whenever satisfied that “immediate action is required to deal
with a significant danger to the environment or to human life or health”
(emphasis added).
72
In sum, the investigatory guidelines contemplated by s. 15 do not
effectively narrow the broad definitions given to “toxic substances” in ss. 11
and 3; that is, they do not guarantee that only the most serious, diffuse and
persistent toxic substances will be caught by the regulatory power conferred by
ss. 34 and 35.
73
Nor are we convinced by the argument of the interveners Pollution
Probe et al. that federal practice demonstrates that the impugned legislation
is specifically targeted to address only those toxic substances that pose the
greatest harm to human health or to the environment. It is true, as the
interveners note, that out of the over 21,000 substances on the Domestic
Substances List, relatively few, i.e. 44, were placed on the Priority
Substances List by the federal government by 1989. Of these 44 substances,
just 25 were determined to be toxic, and only a subset of these 25 have been
subject to regulations. However, the constitutional validity of a statute
cannot depend on the ebb and flow of existing government practice or the manner
in which discretionary powers appear thus far to be exercised. It is the boundaries
to the exercise of that discretion and the scope of the regulatory power
created by the impugned legislation that are at issue here. It is no answer to
a charge that a law is unconstitutional to say that it is only used sparingly.
If it is unconstitutional, it cannot be used at all.
74
With respect to geographical limits, although the preamble of the Act
suggests that its ambit is restricted to those substances that “cannot always
be contained within geographic boundaries”, nowhere in Part II or the enabling
provisions at issue is there any actual limitation based on territorial
considerations. The notion of “environment” as defined in s. 3 includes all
conceivable environments without regard to provincial boundaries. Thus, Part
II applies with equal force to “toxic substances” that are wholly situated
within a province or whose effects are localized or entirely intraprovincial
and to those which move across interprovincial or international borders.
75
The majority of this Court in Crown Zellerbach, supra,
at pp. 436-37, found marine pollution to constitute a single, distinct, and
indivisible subject-matter, on the basis that the Ocean Dumping Control Act,
S.C. 1974-75-76, c. 55, distinguished between the pollution of salt water and the
pollution of fresh water, both types of waters having different compositions
and characteristics. In Part II of the Canadian Environmental Protection
Act, there is no analogous clear distinction between types of toxic
substances, either on the basis of degree of persistence and diffusion into the
environment and the severity of their harmful effect or on the basis of their
extraprovincial aspects. The lack of any distinctions similar to those in the
legislation upheld in Crown Zellerbach means that the Act has a
regulatory scope which can encroach widely upon several provincial heads of
power, notably, s. 92(13) “property and civil rights”, s. 92(16) “matters of a
merely local or private nature”, and s. 92(10) “local works and undertakings”.
In our view, this failure to circumscribe the ambit of the Act demonstrates
that the enabling provisions lack the necessary singleness, distinctiveness and
indivisibility.
76
Another criterion that can be used to determine whether the subject
matter sought to be regulated can be sufficiently distinguished from matters of
provincial interest is to consider whether the failure of one province to enact
effective regulation would have adverse effects on interests exterior to the
province. This indicator has also been named the “provincial inability” test
(see Crown Zellerbach, at pp. 432-34). If the impugned provisions of
the Act were indeed restricted to chemical substances, like PCBs, whose effects
are diffuse, persistent and serious, then a prima facie case could be
made out as to the grave consequences of any one province failing to regulate
effectively their emissions into the environment. However, the s. 11(a)
threshold of “immediate or long-term harmful effect on the environment” also
encompasses substances whose effects may only be temporary or local.
Therefore, the notion of “toxic substances” as defined in the Act is inherently
divisible. Those substances whose harmful effects are only temporary and
localized would appear to be well within provincial ability to regulate. To
the extent that Part II of the Act includes the regulation of “toxic
substances” that may only affect the particular province within which they
originate, the appellant bears a heavy burden to demonstrate that provinces
themselves would be incapable of regulating such toxic emissions. It has not
discharged this burden before this Court.
77
The s. 34(6) equivalency provision also implicitly undermines the
appellant’s submission that the provinces are incapable of regulating toxic substances.
If the provinces were unable to regulate, there would be even more reason for
the federal government not to agree to withdraw from the field. Section 34(6)
demonstrates that the broad subject matter of regulating toxic substances, as
defined by the Act, is inherently or potentially divisible.
78
These reasons confirm that the subject matter does not fulfill the
characteristics of singleness, distinctiveness and indivisibility required to
qualify as a national concern matter.
(ii) Impact on Provincial Jurisdiction
79
Having concluded that the requirement of singleness, distinctiveness and
indivisibility was not satisfied, it is unnecessary to examine the second
criterion of the national concern test. The subject matter at issue does not
qualify as a national concern matter and, since it was not suggested that it
could be upheld as a matter of national emergency, it is therefore not
justified by the peace, order and good government power.
E. The
Trade and Commerce Power
80
The interveners Pollution Probe et al. submit, in the alternative, that
ss. 34 and 35 of the Act as well as the Interim Order can be sustained as an
exercise of the federal trade and commerce power under s. 91(2) of the Constitution
Act, 1867 . More specifically, they argue that the “general trade and
commerce power” recognized in General Motors of Canada Ltd. v. City National
Leasing, [1989] 1 S.C.R. 641, can justify the federal regulations, which
are aimed at controlling the use and release of toxic substances in the course
of commercial activities.
81
Pollution Probe et al. refer to Laskin C.J.’s comments in Wetmore,
supra, at p. 288, that the part of the Food and Drugs Act that
regulated the labelling, packaging and manufacture of food and drug products
“invites the application of the trade and commerce power”. These comments,
they argue, should similarly apply to those parts of the Interim Order and s.
34(1) that address the manufacture, sale and commercial use of PCBs and other
toxic substances.
82
We reject these submissions for two main reasons. First, it is clear
that the “pith and substance” of the impugned legislation does not concern
trade and commerce, even if trade and commerce may be affected by the
application of these provisions. The interveners Pollution Probe et al. seem
to recognize this insofar as they submit that the trade and commerce power
merely provides “supplemental authority” for upholding the Interim Order and
the enabling provisions.
83
Secondly, even if it could be assumed that certain parts of s. 34(1) of
the Act were aimed at the regulation of trade and commerce (e.g. those
paragraphs dealing with importing and exporting), the remainder of s. 34(1)
would, based on the arguments adduced above, be ultra vires Parliament
and would have to be struck down. Assuming that the “trade and commerce”
elements could be saved, therefore, they would have to be “severed” from the
paragraphs of s. 34(1) that would be struck down. It is not altogether clear
that this could be done, particularly since the portion of the statute
remaining after severance must be capable of standing independently of the
severed portion. In this case, the paragraphs are too “inextricably bound” to
be able to survive independently (see Hogg, supra, at p. 15-21). For
these reasons, we cannot agree with the interveners’ submission that the
impugned legislation can be justified as an exercise of the federal trade and
commerce power.
6. Conclusions and Disposition
84
For the above reasons, we find that the impugned provisions are not
justified under any of the heads of power granted to Parliament by s. 91 . We
would therefore declare them ultra vires and dismiss the appellant’s
appeal with costs. We would answer the constitutional question as follows:
Do s. 6(a) of the Chlorobiphenyls Interim Order, PC
1989-296, and the enabling legislative provisions, ss. 34 and 35 of the Canadian
Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in
whole or in part within the jurisdiction of the Parliament of Canada to make
laws for the peace, order and good government of Canada pursuant to s. 91 of
the Constitution Act, 1867 or its criminal law jurisdiction under s.
91(27) of the Constitution Act, 1867 or otherwise fall within its
jurisdiction?
Answer: No.
The judgment of La Forest, L’Heureux-Dubé, Gonthier, Cory and McLachlin
JJ. was delivered by
85 La Forest J. -- This Court has in recent years been
increasingly called upon to consider the interplay between federal and
provincial legislative powers as they relate to environmental protection.
Whether viewed positively as strategies for maintaining a clean environment, or
negatively as measures to combat the evils of pollution, there can be no doubt
that these measures relate to a public purpose of superordinate importance, and
one in which all levels of government and numerous organs of the international
community have become increasingly engaged. In the opening passage of this
Court’s reasons in what is perhaps the leading case, Friends of the Oldman
River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp.
16-17, the matter is succinctly put this way:
The protection of the environment has become one of
the major challenges of our time. To respond to this challenge, governments
and international organizations have been engaged in the creation of a wide
variety of legislative schemes and administrative structures.
86 The all-important duty of
Parliament and the provincial legislatures to make full use of the legislative
powers respectively assigned to them in protecting the environment has
inevitably placed upon the courts the burden of progressively defining the
extent to which these powers may be used to that end. In performing this task,
it is incumbent on the courts to secure the basic balance between the two
levels of government envisioned by the Constitution. However, in doing so,
they must be mindful that the Constitution must be interpreted in a manner that
is fully responsive to emerging realities and to the nature of the subject
matter sought to be regulated. Given the pervasive and diffuse nature of the
environment, this reality poses particular difficulties in this context.
87 This latest case in which
this Court is required to define the nature of legislative powers over the
environment is of major significance. The narrow issue raised is the extent to
and manner in which the federal Parliament may control the amount of and
conditions under which Chlorobiphenyls (PCBs) ‑‑ substances well
known to pose great dangers to humans and the environment generally ‑‑
may enter into the environment. However, the attack on the federal power to
secure this end is not really aimed at the specific provisions respecting
PCBs. Rather, it puts into question the constitutional validity of its
enabling statutory provisions. What is really at stake is whether Part II
(“Toxic Substances”) of the Canadian Environmental Protection Act,
R.S.C., 1985, c. 16 (4th Supp.), which empowers the federal Ministers of Health
and of the Environment to determine what substances are toxic and to prohibit
the introduction of such substances into the environment except in accordance
with specified terms and conditions, falls within the constitutional power of
Parliament.
Facts
88 The case arose in this
way. The respondent Hydro-Québec allegedly dumped polychlorinated biphenyls
(PCBs) into the St. Maurice River in Quebec in early 1990. On June 5, 1990, it
was charged with the following two infractions under s. 6(a) of the Chlorobiphenyls
Interim Order, P.C. 1989-296 (hereafter “Interim Order”), which was adopted
and enforced pursuant to ss. 34 and 35 of the Canadian Environmental
Protection Act:
[translation]
[1] From January 1 to January 3, 1990, did unlawfully
release more than 1 gram per day of chlorobiphenyls into the environment
contrary to s. 6(a) of the Chlorobiphenyls Interim Order,
P.C. 1989-29[6] of February 23, 1989, thereby committing an offence under
ss. 113(i) and (o) of the Canadian Environmental
Protection Act, R.S.C., 1985, c. 16 (4th Supp.);
[2] On or about January 8, 1990, following the release into the
environment, in contravention of s. 6(a) of the Chlorobiphenyls
Interim Order, P.C. 1989‑296 of February 23, 1989, of a
substance specified in Schedule I to the Canadian Environmental Protection
Act, R.S.C., 1985, c. 16 (4th Supp.), to wit: chlorobiphenyls . . .
did fail to report the matter to an inspector as soon as possible in the
circumstances contrary to s. 36(1)(a) of the said Act, thereby
committing an offence under ss. 113(h) and (o) of the said
Act.
On July 23,
1990, the respondent pleaded not guilty to both charges before the Court of
Québec.
89 On March 4, 1991, the
respondent Hydro-Québec brought a motion before Judge Michel Babin seeking to
have ss. 34 and 35 of the Act as well as s. 6(a) of the Interim Order
itself declared ultra vires the Parliament of Canada on the ground that
they do not fall within the ambit of any federal head of power set out in s. 91
of the Constitution Act, 1867 . The Attorney General of Quebec
intervened in support of the respondent’s position. Judge Babin granted the
motion on August 12, 1991 ([1991] R.J.Q. 2736), and an appeal to the Quebec
Superior Court was dismissed by Trottier J. on August 6, 1992 ([1992] R.J.Q.
2159). A further appeal to the Court of Appeal of Quebec was dismissed on
February 14, 1995: [1995] R.J.Q. 398, 67 Q.A.C. 161, 17 C.E.L.R. (N.S.) 34,
[1995] Q.J. No. 143 (QL). Leave to appeal to this Court was granted on October
12, 1995: [1995] 4 S.C.R. vii.
Judicial
History
A. Court
of Québec
90 The principal submission of
the respondent before Judge Babin was that s. 6(a) of the Interim Order
as well as the enabling provisions of the Canadian Environmental Protection
Act pursuant to which it was adopted are ultra vires Parliament on
the ground that they cannot be justified as a matter of “national concern”
under the “Peace, Order, and good Government” clause of s. 91 or the criminal
law power (s. 91(27) ) or under any other federal head of power under s. 91 of
the Constitution Act, 1867 . The appellant argued that the provisions in
question could be justified as a matter of national concern as well as under
the criminal law power. Judge Babin considered that the main issue in the
dispute as regards either head of power was whether Parliament has the power to
enact provisions dealing with disposal of toxic substances into the environment
when the “environment” in question lies exclusively within the borders of a
single province.
91 Beginning with the question
of whether or not the provisions at issue fall within the “national concern”
doctrine under the peace, order and good government clause, Judge Babin applied
the criteria enunciated by this Court in R. v. Crown Zellerbach Canada Ltd.,
[1988] 1 S.C.R. 401, for determining when a matter may properly be considered
as falling within this power. He found that particularly in view of the wide
definitions given to the terms “environment” and “toxic” under ss. 3 and 11 of
the Canadian Environmental Protection Act, the provisions in question
were unacceptably broad in that they could not be said to be limited in scope
to a subject matter having the “singleness, distinctiveness and indivisibility”
required under the Crown Zellerbach test. For much the same reasons, he
found that to attribute exclusively to Parliament the subject matter at which
the provisions are aimed would be to infringe significantly upon various areas
of provincial competence and disturb the federal-provincial distribution of
powers to an unacceptable degree.
92 Judge Babin also found that
the provisions in question did not fall within the ambit of the criminal law
power. Specifically, he held that while the provisions at issue are clearly
directed at protecting human life and health, they are also directed at
protecting the environment in general and that while the former aim constitutes
a “criminal public purpose” in the sense set out in Reference re Validity of
Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the Margarine
Reference), at p. 50, the latter does not. Similarly, he found that the
mere fact that the Act in question here contains provisions setting out
penalties for violations of its terms does not, in and of itself, affect the
Act’s “regulatory nature”. Having found that the provisions at issue did not
fall within either the “national concern” doctrine of the peace, order and good
government clause or the criminal law power (or within any other head of
federal competence), Judge Babin held s. 6(a) of the Interim Order ultra
vires Parliament.
B. Quebec
Superior Court
93 On the appeal to the
Superior Court, Trottier J. began by explaining that, pursuant to this Court’s
reasons in Oldman River, supra, the environment per se
does not constitute a specific domain of legislative competence under ss. 91
and 92 of the Constitution Act, 1867 . Holding in much the same manner
as Judge Babin that the definitions of “toxic” and “environment” are extremely
broad, Trottier J. held that the provisions in question could not be upheld as intra
vires under the national concern doctrine. Similarly, he found the
provisions could not be justified under the criminal law power on the basis
that their true purpose was not to prohibit activity but to regulate it.
Finding no other head of power to be applicable, he dismissed the appeal.
C. Quebec
Court of Appeal
94 On the appeal to the Quebec
Court of Appeal, Tourigny J.A., writing for the court, began her reasons by
holding that even though one of the effects of the Act in question is to
protect human life and health, the true “pith and substance” both of s. 6(a)
of the Interim Order and of the enabling provisions of the Act under which it
was adopted is “the protection of the environment”. Following this Court’s
decision in Oldman River, Tourigny J.A. recognized that neither
Parliament nor the provinces are vested with legislative competence regarding
the environment per se and that environmental legislation will therefore
only fall within the jurisdiction of either level of government if it is
ancillary to a head of power listed in ss. 91 or 92 of the Constitution Act,
1867 .
95 Applying this principle to
the matter at hand, Tourigny J.A. first examined whether the provisions in
question can be said to fall within federal competence under the national
concern doctrine. In light of this Court’s decision in Crown Zellerbach,
supra, she found the provisions could not be intra vires on this
ground. She then examined the appellant’s submission that the provisions could
be justified under the “national emergency” doctrine under the peace, order and
good government clause. She rejected this argument as well, holding both that
there exists no “emergency” justifying the adoption of the provisions, and
that, in any case, the provisions are not sufficiently temporary in nature as
to satisfy the strict requirements of the national emergency doctrine.
96 Finally, Tourigny J.A.
analysed the appellant’s submission that the impugned provisions fall within
Parliament’s jurisdiction over criminal law. While she recognized that this
power has historically been given a relatively broad reading, she found that
these provisions greatly exceed the ambit of what may properly be considered
criminal law. She, therefore, held that the provisions in question do not fall
within this federal power even though the Act does prohibit certain conduct and
provides for the enforcement of such prohibitions through penalties.
D. Constitutional
Questions
97 On December 21, 1995, Lamer
C.J. framed the following constitutional question:
Do s. 6(a) of the Chlorobiphenyls Interim Order, P.C.
1989-296, and the enabling legislative provisions, ss. 34 and 35 of the Canadian
Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in
whole or in part within the jurisdiction of the Parliament of Canada to make
laws for the peace, order and good government of Canada pursuant to s. 91 of
the Constitution Act, 1867 or its criminal law jurisdiction under s.
91(27) of the Constitution Act, 1867 or otherwise fall within its
jurisdiction?
98 As can be seen, the
constitutional question first raises the constitutionality of s. 6(a) of
the Interim Order, which reads as follows:
6. The quantity of chlorobiphenyls that may be
released into the environment shall not exceed 1 gram per day in respect of any
item of equipment or any receptacle or material containing equipment in the
course of the operation, servicing, maintenance, decommissioning, transporting
or storage of
(a) electrical capacitors and electrical transformers and
associated electrical equipment manufactured in or imported into Canada before
July 1, 1980;
However, it
also raises the validity of the enabling provisions of the Act, specifically
ss. 34 and 35. While it is possible to challenge the constitutional validity
of the Interim Order directly, the real issue, as is evident from the reasons
of the courts appealed from, is the validity of the enabling provisions, cited infra,
and the main thrust of these reasons will be concerned with that issue. It is
clear that the Interim Order will be of no force or effect if the enabling
provisions pursuant to which it was adopted are themselves found to be ultra
vires. As stated by Professor Hogg: “The invalidity of a statute which is
ultra vires the enacting legislative body will of course destroy any powers
which the statute purported to delegate to the government” (P. W. Hogg, Constitutional
Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at p. 14-7); see also D.
C. Holland and J. P. McGowan, Delegated Legislation in Canada (1989), at
pp. 170-71.
Overview of
the Legislative Structure of the Canadian Environmental Protection Act
99 The Canadian
Environmental Protection Act was adopted by Parliament in 1988 with a view
to consolidating and replacing several other laws dealing with different types
of environmental protection. Sections 34 and 35 appear in Part II, entitled
“Toxic Substances”. This Part is, in large measure, an adaptation of the Environmental
Contaminants Act, R.S.C., 1985, c. E-12 (which was abrogated when the
present Act came into force). It should not be overlooked, however, that other
parts of the Act are relevant to toxic substances. The subject of toxic
substances is introduced in the preamble, which after declaring that the
protection of the environment is essential to the well-being of Canada sets
forth the following clauses that are of direct relevance in this case:
Whereas the
presence of toxic substances in the environment is a matter of national
concern;
Whereas
toxic substances, once introduced into the environment, cannot always be
contained within geographic boundaries;
Whereas
the Government of Canada in demonstrating national leadership should establish
national environmental quality objectives, guidelines and codes of practice;
. . .
And Whereas
Canada must be able to fulfil its international obligations in respect of the
environment;
As well, the
first substantive provision of the Act, s. 2, in para. 2(j) imposes the
following duty on the Canadian government:
2. In the administration of this Act, the
Government of Canada shall, having regard to the Constitution and laws of
Canada,
. . .
(j) endeavour to act expeditiously to assess whether substances in
use in Canada are toxic or capable of becoming toxic.
100 Moreover, Schedule I of the
Act under the heading “List of Toxic Substances” originally set forth nine such
substances with the type of regulations applicable to them.
101 Part II of the Act deals
first with the identification of other substances that could pose a risk either
to the environment or to human life and health, and then provides a procedure
for adding them to the List of Toxic Substances in Schedule I and for imposing
by regulations requirements respecting the terms and conditions under which
substances so listed may be released into the environment.
102 Part II begins with s. 11,
which reads:
11. For the purposes of this Part, a
substance is toxic if it is entering or may enter the environment in a quantity
or concentration or under conditions
(a) having or that may have an immediate or long-term harmful
effect on the environment;
(b) constituting or that may constitute a danger to the
environment on which human life depends; or
(c) constituting or that may constitute a danger in Canada to
human life or health.
Two things
should be noted about this provision. First, it is confined in its application
to Part II. Secondly, while the provision was in the course of argument
described as a “definition”, it is by no means a true definition, a matter
about which I shall comment more extensively later. Before one can know if a
substance can give rise to the real or possible harmful effects or dangers
spelled out in paras. (a) to (c), some assessment or test must be
made to determine whether the quantity or concentration or conditions under
which a substance enters the environment is sufficient to make it toxic. This
is made clear by s. 12(1) which, in providing for the creation of a Priority
Substances List, authorizes the Ministers of Health and of the Environment to “specify
substances in respect of which the Ministers are satisfied priority should be
given in assessing whether they are toxic or capable of becoming toxic”
(emphasis added). This expression, I observe, is repeated throughout Part II
in the provisions regarding assessments.
103 The manner in which the
Ministers may conduct investigations to determine whether or not a given
“substance” is “toxic” is set forth in s. 15. They may examine, inter alia,
the nature of the substance in question, its effects on natural biological
processes, the extent to which the substance will persist in the environment,
methods of controlling it, and methods of reducing the amount used. Section 15
read at the relevant time:
15. For the purpose of assessing whether a
substance is toxic or is capable of becoming toxic, or for the purpose of
assessing the need for measures to control a substance, either Minister may
(a) collect data and conduct investigations respecting
(i) the nature of the substance,
(ii) the presence of the substance in the environment and the effect
of its presence on the environment or on human life or health,
(iii) the extent to which the substance can become dispersed and will
persist in the environment,
(iv) the ability of the substance to become incorporated or accumulate
in biological tissues or to interfere with biological processes,
(v) methods of controlling the presence of the substance in the
environment,
(vi) methods for testing the effects of the presence of the substance
in the environment,
(vii) development and use of alternatives to the substance,
(viii) quantities, uses and disposal of the substance, and
(ix) methods of reducing the amount of the substance used, produced or
released into the environment;
(b) correlate and evaluate any data collected pursuant to
paragraph (a) and publish results of any investigations carried out
pursuant to that paragraph; and
(c) provide information and consultative services and make
recommendations respecting measures to control the presence of the substance in
the environment.
Under s. 16,
the Minister of the Environment may require that private citizens provide him
or her with information about, or samples of, substances they suspect may be
toxic, and under s. 18, the Minister can order that persons with information
about a substance that may be toxic provide that information.
104 Sections 12 and 13 of the
Act require the Ministers of the Environment and Health to compile a “Priority
Substances List” specifying those substances in respect of which priority
should be given in determining whether or not they are toxic. Once the
Ministers have assessed a priority listed substance, they may decide either to
recommend or not to recommend that the substance be added to the List of Toxic
Substances in Schedule I. Where the Ministers so recommend, the Governor in
Council by virtue of s. 33 may, after a federal-provincial advisory
committee (established under s. 6) has been given an opportunity to
provide its advice, make an order adding the substance to the List of Toxic
Substances. When that is done, the Governor in Council is empowered under s.
34 to make detailed regulations imposing requirements respecting the manner of
dealing with any substance listed in Schedule I. Failure to comply with these
regulations is punishable by a fine or imprisonment (s. 113(f), (o)
and (p)). Since s. 34 (of which s. 34(1) is of prime importance) is
under attack in this case, I cite it at length:
34. (1) Subject to subsection (3), the
Governor in Council may, on the recommendation of the Ministers and after the
federal-provincial advisory committee is given an opportunity to provide its
advice under section 6, make regulations with respect to a substance specified
on the List of Toxic Substances in Schedule I, including regulations providing
for, or imposing requirements respecting,
(a) the quantity or concentration of the substance that may be
released into the environment either alone or in combination with any other
substance from any source or type of source;
(b) the places or areas where the substance may be released;
(c) the commercial, manufacturing or processing activity in the
course of which the substance may be released;
(d) the manner in which and conditions under which the substance
may be released into the environment, either alone or in combination with any
other substance;
(e) the quantity of the substance that may be manufactured,
processed, used, offered for sale or sold in Canada;
(f) the purposes for which the substance or a product containing
the substance may be imported, manufactured, processed, used, offered for sale
or sold;
(g) the manner in which and conditions under which the substance
or a product containing the substance may be imported, manufactured, processed
or used;
(h) the quantities or concentrations in which the substance may
be used;
(i) the quantities or concentrations of the substance that may
be imported;
(j) the countries from or to which the substance may be imported
or exported;
(k) the conditions under which, the manner in which and the
purposes for which the substance may be imported or exported;
(l) the total, partial or conditional prohibition of the
manufacture, use, processing, sale, offering for sale, import or export of the
substance or a product containing the substance;
(m) the quantity or concentration of the substance that may be
contained in any product manufactured, imported, exported or offered for sale
in Canada;
(n) the manner in which and conditions under which and the
purposes for which the substance or a product containing the substance may be
advertised or offered for sale;
(o) the manner in which and conditions under which the substance
or a product or material containing the substance may be stored, displayed,
handled, transported or offered for transport;
(p) the packaging and labelling of the substance or a product or
material containing the substance;
(q) the manner, conditions, places and method of disposal of the
substance or a product or material containing the substance, including
standards for the construction, maintenance and inspection of disposal sites;
(r) the submission to the Minister, on request or at such times
as are prescribed, of information relating to the substance;
(s) the maintenance of books and records for the administration
of any regulation made under this section;
(t) the conduct of sampling, analyses, tests, measurements or
monitoring of the substance and the submission of the results to the Minister;
(u) the submission of samples of the substance to the Minister;
(v) the methods and procedures for conducting sampling,
analyses, tests, measurements or monitoring of the substance;
(w) circumstances or conditions under which the Minister may,
for the proper administration of this Act, modify
(i) any requirement for sampling, analyses, tests, measurements or
monitoring, or
(ii) the methods and procedures for conducting any required sampling,
analyses, tests, measurements or monitoring; and
(x) any other matter necessary to carry out the purposes of this
Part.
(2) The Governor in Council may, on the
recommendation of the Ministers, make regulations providing for the exemption
of the following activities from the application of this Part and any
regulations made under it, namely,
(a) the import, export, manufacture, use, processing, transport,
offering for transport, handling, packaging, labelling, advertising, sale,
offering for sale, displaying, storing, disposing or releasing into the
environment of any substance or a product or material containing any substance;
and
(b) the release of any substance into the environment, for a
period specified in the regulations, from any source or type of source.
(3) The Governor in Council shall not make a
regulation under subsection (1) in respect of any substance if, in the opinion
of the Governor in Council, the regulation regulates an aspect of the substance
that is regulated by or under any other Act of Parliament.
(4) A regulation made under subsection (1) with
respect to a substance may amend the List of Toxic Substances in Schedule I so
as to specify the type of regulation that applies with respect to the
substance.
(5) Except with respect to Her Majesty in right of
Canada, the provisions of a regulation made under subsection (1) do not apply
in any province in respect of which there is in force an order, made under
subsection (6), declaring that the provisions do not apply.
(6) Where the Minister and the government of a
province agree in writing that there are in force by or under the laws of the
province
(a) provisions that are equivalent to the provisions of a
regulation made under subsection (1), and
(b) provisions that are similar to sections 108 to 110 for the
investigation of alleged offences under provincial environmental legislation,
the Governor in Council may, on the recommendation of the Minister,
make an order declaring that the provisions of the regulation do not apply in
the province.
(7) The Minister shall make public any agreement
referred to in subsection (6).
(8) An agreement referred to in subsection (6) may
be terminated by either party giving to the other at least six months notice of
termination.
(9) The Governor in Council may, on the
recommendation of the Minister, revoke an order made under subsection (6) where
the agreement referred to in that subsection is terminated.
(10) The Minister shall include in the annual
report required by section 138 a report on the administration of subsections
(5) to (9).
105 Section 35 is ancillary to
s. 34. It provides that where a substance is not listed in Schedule I (or
where it is listed but the Ministers believe it is not adequately regulated)
and the Ministers believe that immediate action is required in respect of that
substance, the Minister of the Environment may make an “interim order” in
respect of the substance and make any provision that may be made in a
regulation made under s. 34(1) and (2). Such provisions may include setting
limits on the quantity and concentration of emissions of the substance,
controlling the areas where the substance may be released, controlling the
commercial manufacturing or processing activity in the course of which the
substance is released, stipulating the manner and conditions in which the
substance may be advertised or offered for sale and regulating the packaging
and labelling of the substance or of a material containing the substance. An
interim order ceases to have effect within 14 days unless it is approved by the
Governor in Council (s. 35(3)), and such approval is not to be given unless, within
24 hours of making the order, the Minister has consulted with the affected
provincial governments to determine whether they are prepared to take
sufficient action to deal with the significant danger and has also consulted
other federal Ministers to determine whether the matter can be dealt with under
another Act of Parliament. The interim order ceases to have effect at the
latest two years after it is made (s. 35(8)). Section 35 reads:
35. (1) Where
(a) a substance
(i) is not specified on the List of Toxic Substances in Schedule I and
the Ministers believe that it is toxic, or
(ii) is specified on that List and the Ministers believe that it is not
adequately regulated, and
(b) the Ministers believe that immediate action is required to
deal with a significant danger to the environment or to human life or health,
the Minister may make an interim order in respect of the substance and
the order may contain any provision that may be contained in a regulation made
under subsection 34(1) or (2).
(2) Subject to subsection (3), an interim order
has effect
(a) from the time it is made; and
(b) as if it were a regulation made under section 34.
(3) An interim order ceases to have effect unless
it is approved by the Governor in Council within fourteen days after it is
made.
(4) The Governor in Council shall not approve an
interim order unless
(a) the Minister has, within twenty-four hours after making the
order, offered to consult the governments of all the affected provinces to
determine whether they are prepared to take sufficient action to deal with the
significant danger; and
(b) the Minister has consulted with other ministers of the Crown
in right of Canada to determine whether any action can be taken under any other
Act of Parliament to deal with the significant danger.
(5) Where the Governor in Council approves an
interim order, the Ministers shall, within ninety days after the approval,
recommend to the Governor in Council
(a) that a regulation having the same effect as the order be
made under section 34; and
(b) if the order was made in respect of a substance that was not
specified on the List of Toxic Substances in Schedule I, that the substance be
added to that List under section 33.
(6) An interim order
(a) is exempt from the application of sections 3, 5 and 11 of
the Statutory Instruments Act; and
(b) shall be published in the Canada Gazette within
twenty-three days after it is approved under subsection (3).
(7) No person shall be convicted of an offence
consisting of a contravention of an interim order that, at the time of the
alleged contravention, was not published in the Canada Gazette in both
official languages unless it is proved that at the date of the alleged
contravention reasonable steps had been taken to bring the purport of the order
to the notice of those persons likely to be affected by it.
(8) An interim order ceases to have effect when a
regulation referred to in subsection (5) is made or two years after the order
was made, whichever is the earlier.
106 It is the interplay between
ss. 34 and 35 that gave rise to the Interim Order that ultimately led to this
litigation. In 1989, the then Environment Minister, the Honourable Lucien
Bouchard, became concerned that regulations governing PCBs made under previous
legislation might not continue in force once the previous legislation had been
repealed. Exercising his powers under s. 35, he adopted the Interim Order, cited
supra, providing for the regulation of PCBs in accordance with the
provisions of s. 34. The respondent challenges the charges brought against it
under the Interim Order by alleging that both the order and ss. 34 and 35 are ultra
vires Parliament.
107 But the nub of its case is
not fully apparent from a reading of ss. 34 and 35 alone. These provisions
must also be read in light of the broad definitions of “environment” and
“substance” which read:
3. (1) In this Act,
.
. .
“environment” means the components of the Earth and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include components
referred to in paragraphs (a) to (c);
. . .
“substance” means any distinguishable kind of
organic or inorganic matter, whether animate or inanimate, and includes
(a) any matter that is capable of being dispersed in the
environment or of being transformed in the environment into matter that is
capable of being so dispersed or that is capable of causing such
transformations in the environment,
(b) any element or free radical,
(c) any combination of elements of a particular molecular
identity that occurs in nature or as a result of a chemical reaction, and
(d) complex combinations of different molecules that originate
in nature or are the result of chemical reactions but that could not
practicably be formed by simply combining individual constituents,
and, except for the purposes of sections 25 to 32, includes
(e) any mixture that is a combination of substances and does not
itself produce a substance that is different from the substances that were
combined,
(f) any manufactured item that is formed into a specific
physical shape or design during manufacture and has, for its final use, a
function or functions dependent in whole or in part on its shape or design, and
(g) any animate matter that is, or any complex mixtures of
different molecules that are, contained in effluents, emissions or wastes that
result from any work, undertaking or activity;
Above all, the
respondent is concerned with the term “toxic” as it is used in s. 11, which,
together with the definitions just quoted, it contends, constitute an
impermissibly broad interference with provincial legislative powers.
The Issues
108 In this Court, the appellant
Attorney General of Canada seeks to support the impugned provisions of the Act
on the basis of the national concern doctrine under the peace, order and good
government clause of s. 91 or under the criminal law power under s. 91(27) of
the Constitution Act, 1867 . The respondent Hydro-Québec and the mis
en cause Attorney General of Quebec dispute this. In broad terms, they say
that the provisions are so invasive of provincial powers that they cannot be
justified either under the national dimensions doctrine or under the criminal
law power. The attack on the validity of the provisions under the latter power
is also supported, most explicitly by the intervener the Attorney General for
Saskatchewan, on the ground that they are, in essence, of a regulatory and not
of a prohibitory character. Finally, I repeat that while the Interim Order
precipitated the litigation, there is no doubt that the respondent and mis
en cause as well as their supporting interveners are after bigger game ‑‑
the enabling provisions.
109 While both the national
concern doctrine and the criminal law power received attention in the course of
the argument, it is right to say that the principal focus in this Court was on
the national concern issue. This may in fact be owing to the fact that this
Court’s most recent decision dealing extensively with the criminal law power, RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, had not been decided when this case came before the courts
whose judgments are under review in this case. Whatever the reason, many of
the arguments and concerns seemed at times to be addressed at both legislative
powers, and the general effect was to colour and I think at times to distort
the approach that, in my view, should properly be taken to the criminal law
power. Thus I found much of the discussion relating to the pith and substance
of the legislation, as well as other matters to which I shall later refer, not
altogether apt to a consideration of the criminal law power.
110 I make these remarks
because, in my view, the impugned provisions are valid legislation under the
criminal law power ‑‑ s. 91(27) of the Constitution Act, 1867 .
It thus becomes unnecessary to deal with the national concern doctrine, which
inevitably raises profound issues respecting the federal structure of our
Constitution which do not arise with anything like the same intensity in
relation to the criminal law power.
111 In analysing the issues as
they relate to the criminal law power, I propose to proceed in the following
manner. I shall begin with introductory remarks reviewing the manner in which
this Court has approached environmental issues arising under the division of
powers under the Constitution Act, 1867 . I shall then turn to a
discussion of the federal criminal law power under s. 91(27) of that Act. This
will be followed by a closer examination of Part II, Toxic Substances, of the
Act. This will open the way to a discussion of whether ss. 34 and 35 , as well
as the Interim Order, are valid exercises of the criminal law power.
Analysis
Introduction
112 In considering how the
question of the constitutional validity of a legislative enactment relating to
the environment should be approached, this Court in Oldman River, supra,
made it clear that the environment is not, as such, a subject matter of
legislation under the Constitution Act, 1867 . As it was put there, “the
Constitution Act, 1867 has not assigned the matter of ‘environment’ sui
generis to either the provinces or Parliament” (p. 63). Rather, it is a
diffuse subject that cuts across many different areas of constitutional
responsibility, some federal, some provincial (pp. 63-64). Thus Parliament or
a provincial legislature can, in advancing the scheme or purpose of a statute,
enact provisions minimizing or preventing the detrimental impact that statute
may have on the environment, prohibit pollution, and the like. In assessing
the constitutional validity of a provision relating to the environment,
therefore, what must first be done is to look at the catalogue of legislative
powers listed in the Constitution Act, 1867 to see if the provision
falls within one or more of the powers assigned to the body (whether Parliament
or a provincial legislature) that enacted the legislation (ibid. at p.
65). If the provision in essence, in pith and substance, falls within the
parameters of any such power, then it is constitutionally valid.
113 Though pith and substance
may be described in different ways, the expressions “dominant purpose” or “true
character” used in R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp.
481-82, or “the dominant or most important characteristic of the challenged
law” used in Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286, and
in Oldman River, supra, at p. 62, appropriately convey the
meaning to be attached to the term. If a provision dealing with the
environment is really aimed at promoting the dominant purpose of the statute or
at addressing the impact of a statutory scheme, and the scheme itself is valid,
then so is the provision.
114 In examining the validity of
legislation in this way, it must be underlined that the nature of the relevant
legislative powers must be examined. Different types of legislative powers may
support different types of environmental provisions. The manner in which such
provisions must be related to a legislative scheme was, by way of example,
discussed in Oldman River in respect of railways, navigable waters and
fisheries. An environmental provision may be validly aimed at curbing
environmental damage, but in some cases the environmental damage may be
directly related to the power itself. There is a considerable difference
between regulating works and activities, like railways, and a resource like
fisheries, and consequently the environmental provisions relating to each of
these. Environmental provisions must be tied to the appropriate constitutional
source.
115 Some heads of legislation
may support a wholly different type of environmental provision than others.
Notably under the general power to legislate for the peace, order and good
government, Parliament may enact a wide variety of environmental legislation in
dealing with an emergency of sufficient magnitude to warrant resort to the
power. But the emergency would, of course, have to be established. So too
with the “national concern” doctrine, which formed the major focus of the
present case. A discrete area of environmental legislative power can fall
within that doctrine, provided it meets the criteria first developed in Reference
re Anti-Inflation Act, [1976] 2 S.C.R. 373, and thus set forth in Crown
Zellerbach, supra, at p. 432:
3. For a matter to qualify as a matter of
national concern in either sense it must have a singleness, distinctiveness and
indivisibility that clearly distinguishes it from matters of provincial concern
and a scale of impact on provincial jurisdiction that is reconcilable with the
fundamental distribution of legislative power under the Constitution;
Thus in the
latter case, this Court held that marine pollution met those criteria and so
fell within the exclusive legislative power of Parliament under the peace,
order and good government clause. While the constitutional necessity of
characterizing certain activities as beyond the scope of provincial legislation
and falling within the national domain was accepted by all the members of the
Court, the danger of too readily adopting this course was not lost on the
minority. Determining that a particular subject matter is a matter of national
concern involves the consequence that the matter falls within the exclusive and
paramount power of Parliament and has obvious impact on the balance of Canadian
federalism. In Crown Zellerbach, the minority (at p. 453) expressed the
view that the subject of environmental protection was all-pervasive, and if
accepted as falling within the general legislative domain of Parliament under
the national concern doctrine, could radically alter the division of
legislative power in Canada.
116 The minority position on
this point (which was not addressed by the majority) was subsequently accepted
by the whole Court in Oldman River, supra, at p. 64. The general
thrust of that case is that the Constitution should be so interpreted as to
afford both levels of government ample means to protect the environment while
maintaining the general structure of the Constitution. This is hardly
consistent with an enthusiastic adoption of the “national dimensions”
doctrine. That doctrine can, it is true, be adopted where the criteria set
forth in Crown Zellerbach are met so that the subject can appropriately
be separated from areas of provincial competence.
117 I have gone on at this
length to demonstrate the simple proposition that the validity of a legislative
provision (including one relating to environmental protection) must be tested
against the specific characteristics of the head of power under which it is
proposed to justify it. For each constitutional head of power has its own
particular characteristics and raises concerns peculiar to itself in assessing
it in the balance of Canadian federalism. This may seem obvious, perhaps even
trite, but it is all too easy (see Fowler v. The Queen, [1980] 2 S.C.R.
213) to overlook the characteristics of a particular power and overshoot the
mark or, again, in assessing the applicability of one head of power to give
effect to concerns appropriate to another head of power when this is neither
appropriate nor consistent with the law laid down by this Court respecting the
ambit and contours of that other power. In the present case, it seems to me,
this was the case of certain propositions placed before us regarding the
breadth and application of the criminal law power. There was a marked attempt
to raise concerns appropriate to the national concern doctrine under the peace,
order and good government clause to the criminal law power in a manner that, in
my view, is wholly inconsistent with the nature and ambit of that power as set
down by this Court from a very early period and continually reiterated since,
notably in specific pronouncements in the most recent cases on the subject.
The
Criminal Law Power
118 Section 91(27) of the Constitution
Act, 1867 confers the exclusive power to legislate in relation to criminal
law on Parliament. The nature and ambit of this power has recently been the
subject of a detailed analytical and historical examination in RJR-MacDonald,
supra, where it was again described (p. 240), as it has for many years,
as being “plenary in nature” (emphasis added). I shall not attempt to
repeat the analysis so recently set forth at length by this Court, or attempt
to refer extensively to all of the many authorities there cited, but will
confine myself to underlining the findings in that case that are most salient
to the issues raised here. I add that Professor Leclair in an excellent
article, “Aperçu des virtualités de la compétence fédérale en droit criminel
dans le contexte de la protection de l’environnement” (1996), 27 R.G.D.
137, has very recently analysed all the relevant cases and has come to the same
conclusion about the general scope of the criminal law power and its
application to the environment, and in particular the Act here in question.
119 What appears from the
analysis in RJR-MacDonald is that as early as 1903, the Privy Council,
in Attorney-General for Ontario v. Hamilton Street Railway Co., [1903]
A.C. 524, at pp. 528-29, had made it clear that the power conferred on
Parliament by s. 91(27) is “the criminal law in its widest sense”
(emphasis added). Consistently with this approach, the Privy Council in Proprietary
Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310
(hereafter PATA), at p. 324, defined the criminal law power as including
any prohibited act with penal consequences. As it put it, at p. 324: “The
criminal quality of an act cannot be discerned . . . by reference to
any standard but one: Is the act prohibited with penal consequences?” This
approach has been consistently followed ever since and, as RJR-MacDonald
relates, it has been applied by the courts in a wide variety of settings.
Accordingly, it is entirely within the discretion of Parliament to determine
what evil it wishes by penal prohibition to suppress and what threatened
interest it thereby wishes to safeguard, to adopt the terminology of Rand J. in
the Margarine Reference, supra, at p. 49, cited infra.
120 Contrary to the respondent’s
submission, under s. 91(27) of the Constitution Act, 1867 , it is also
within the discretion of Parliament to determine the extent of blameworthiness
that it wishes to attach to a criminal prohibition. So it may determine the
nature of the mental element pertaining to different crimes, such as a defence
of due diligence like that which appears in s. 125(1) of the Act in issue.
This flows from the fact that Parliament has been accorded plenary power to
make criminal law in the widest sense. This power is, of course, subject to
the “fundamental justice” requirements of s. 7 of the Canadian Charter of
Rights and Freedoms , which may dictate a higher level of mens rea
for serious or “true” crimes; cf. R. v. Wholesale Travel Group Inc.,
[1991] 3 S.C.R. 154, and R. v. Rube, [1992] 3 S.C.R. 159, but that is
not an issue here.
121 The Charter apart,
only one qualification has been attached to Parliament’s plenary power over
criminal law. The power cannot be employed colourably. Like other legislative
powers, it cannot, as Estey J. put it in Scowby v. Glendinning, [1986] 2
S.C.R. 226, at p. 237, “permit Parliament, simply by legislating in the proper
form, to colourably invade areas of exclusively provincial legislative
competence”. To determine whether such an attempt is being made, it is, of
course, appropriate to enquire into Parliament’s purpose in enacting the
legislation. As Estey J. noted in Scowby, at p. 237, since the Margarine
Reference, it has been “accepted that some legitimate public purpose must
underlie the prohibition”. Estey J. then cited Rand J.’s words in the Margarine
Reference (at p. 49) as follows:
A crime is an act which the law, with
appropriate penal sanctions, forbids; but as prohibitions are not enacted in a
vacuum, we can properly look for some evil or injurious or undesirable effect
upon the public against which the law is directed. That effect may be in
relation to social, economic or political interests; and the legislature has
had in mind to suppress the evil or to safeguard the interest threatened.
I simply add that the analysis in Scowby and the Margarine
Reference was most recently applied by this Court in RJR-MacDonald, supra,
at pp. 240-41.
122 In
the Margarine Reference, supra, at p. 50, Rand J. helpfully set
forth the more usual purposes of a criminal prohibition in the following
passage:
Is the prohibition
. . . enacted with a view to a public purpose which can
support it as being in relation to criminal law? Public peace, order,
security, health, morality: these are the ordinary though not exclusive ends
served by that law. . . . [Emphasis added.]
See also Morgentaler, supra, at p. 489; RJR-MacDonald,
at p. 241. As the final clause in the passage just cited indicates, the listed
purposes by no means exhaust the purposes that may legitimately support valid
criminal legislation. Not only is this clear from this passage, but subsequent
to the Margarine Reference, it is obvious from Rand J.’s remarks in Lord’s
Day Alliance of Canada v. Attorney General of British Columbia, [1959]
S.C.R. 497, at pp. 508-9, that he was in no way departing from Lord Atkin’s
statement in the PATA case, supra (he cited the relevant passage
with approval). His concern in the Margarine Reference, as he indicates
in the Lord’s Day case (at p. 509), was that “in a federal system
distinctions must be made arising from the true object, purpose, nature or character
of each particular enactment”. In short, in a case like the present, all one
is concerned with is colourability. Otherwise, one would, in effect, be
reviving the discarded notion that there is a “domain” of criminal law,
something Rand J., like Lord Atkin before him, was not prepared to do. All of
this is, of course, consistent with the view, most recently reiterated in RJR-MacDonald,
at pp. 259-61, that criminal law is not frozen in time.
123 During
the argument in the present case, however, one sensed, at times, a tendency,
even by the appellant and the supporting interveners, to seek justification
solely for the purpose of the protection of health specifically identified by
Rand J. Now I have no doubt that that purpose obviously will support a
considerable measure of environmental legislation, as perhaps also the ground
of security. But I entertain no doubt that the protection of a clean
environment is a public purpose within Rand J.’s formulation in the Margarine
Reference, cited supra, sufficient to support a criminal
prohibition. It is surely an “interest threatened” which Parliament can
legitimately “safeguard”, or to put it another way, pollution is an “evil” that
Parliament can legitimately seek to suppress. Indeed, as I indicated at the
outset of these reasons, it is a public purpose of superordinate importance; it
constitutes one of the major challenges of our time. It would be surprising
indeed if Parliament could not exercise its plenary power over criminal law to
protect this interest and to suppress the evils associated with it by
appropriate penal prohibitions.
124 This
approach is entirely consistent with the recent pronouncement of this Court in Ontario
v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, where Gonthier J., speaking
for the majority, had this to say, at para. 55:
It is clear that over the past two decades, citizens
have become acutely aware of the importance of environmental protection, and of
the fact that penal consequences may flow from conduct which harms the
environment.... Everyone is aware that individually and collectively, we
are responsible for preserving the natural environment. I would agree with the
Law Reform Commission of Canada, Crimes Against the Environment, supra,
which concluded at p. 8 that:
. . . a fundamental and widely shared value is
indeed seriously contravened by some environmental pollution, a value which we
will refer to as the right to a safe environment.
To some extent, this right and
value appears to be new and emerging, but in part because it is an extension of
existing and very traditional rights and values already protected by criminal
law, its presence and shape even now are largely discernible. Among the new
strands of this fundamental value are, it may be argued, those such as quality
of life, and stewardship of the natural environment. At the same
time, traditional values as well have simply expanded and evolved to include
the environment now as an area and interest of direct and primary concern.
Among these values fundamental to the purposes and protections of criminal law
are the sanctity of life, the inviolability and integrity of persons,
and the protection of human life and health. It is increasingly
understood that certain forms and degrees of environmental pollution can
directly or indirectly, sooner or later, seriously harm or endanger human life
and human health.
Not only has environmental protection emerged as a
fundamental value in Canadian society, but this has also been recognized in
legislative provisions such as s. 13(1)(a)
EPA. [Italics in original; underlining added.]
125 It
is worthy of note that following Working Paper 44 (1985), from which Gonthier
J. cites, the Law Reform Commission of Canada in a subsequent report to
Parliament (Recodifying Criminal Law, Report 31 (1987)), noted its view
of the desirability of using the criminal law to underline the value of respect
for the environment itself. It stated, at p. 93:
. . . in Working Paper 44 we proposed a
new and distinct crime against the environment on the ground that certain
behaviour so threatens fundamental values as to warrant criminal sanctions.
That crime was to consist of conduct damaging the environment and thereby
seriously harming or endangering human life or health.
Since then, however, we revised
our opinion. First, we concluded that since environmental damage harming or
endangering life and safety is covered by crimes of negligence against the
person and by the newly proposed crime of endangering (clause 10(1)), there was
no need for an environmental crime like that proposed. Second, our consultations
on Working Paper 44 together with a series of environmental disasters since its
publication convinced the majority of the Commissioners of the need to use
criminal law to underline the value of respect for the environment itself
and stigmatize behaviour causing disastrous damage with long-term loss of
natural resources. [Emphasis added.]
126 This
is, of course, in line with the thinking of various international organisms.
The World Commission on Environment and Development (the Brundtland Commission)
in its report Our Common Future (1987) (see at pp. 219-20, and pp.
224-25) long ago recommended the adoption of appropriate legislation to protect
the environment against toxic and chemical substances, including the creation
of national standards that could be supplemented by local legislation. At p.
211, it stated:
It is becoming increasingly clear
that the sources and causes of pollution are far more diffuse, complex, and
interrelated ‑‑ and the effects of pollution more widespread,
cumulative, and chronic ‑‑ than hitherto believed. Pollution
problems that were once local are now regional or even global in scale.
Contamination of soils, ground-water, and people by agrochemicals is widening
and chemical pollution has spread to every corner of the planet. The incidence
of major accidents involving toxic chemicals has grown. Discoveries of
hazardous waste disposal sites ‑‑ at Love Canal in the United
States, for example, and at Lekkerkek in the Netherlands, Vac in Hungary, and
Georgswerder in the Federal Republic of Germany ‑‑ have drawn
attention to another serious problem.
In the light of this and the
growth trends projected through the next century, it is evident that measures
to reduce, control, and prevent industrial pollution will need to be greatly
strengthened. If they are not, pollution damage to human health could become intolerable
in certain cities and threats to property and ecosystems will continue to grow.
Later, at pp. 219-20, it added:
In dealing with industrial pollution and resource
degradation, it is essential that industry, government, and the public have
clear benchmarks. Where the workforce and financial resources permit, national
governments should establish clear environmental goals and enforce
environmental laws, regulations, incentives, and standards on industrial
enterprises. In formulating such policies, they should give priority to public
health problems associated with industrial pollution and hazardous wastes. And
they must improve their environmental statistics and data base relating to
industrial activities.
The regulations and standards should govern such matters as air and water pollution, waste
management, occupational health and safety of workers, energy and resource
efficiency of products or processes, and the manufacture, marketing, use,
transport, and disposal of toxic substances. This should normally be done
at the national level, with local governments being empowered to exceed, but
not to lower, national norms. [Emphasis added.]
See also United Nations Environment Programme, Global
Environmental Issues (1982), at pp. 55-60.
127 What
the foregoing underlines is what I referred to at the outset, that the
protection of the environment is a major challenge of our time. It is an
international problem, one that requires action by governments at all levels.
And, as is stated in the preamble to the Act under review, “Canada must be able
to fulfil its international obligations in respect of the environment”. I am
confident that Canada can fulfil its international obligations, in so far as
the toxic substances sought to be prohibited from entering into the environment
under the Act are concerned, by use of the criminal law power. The purpose of
the criminal law is to underline and protect our fundamental values. While
many environmental issues could be criminally sanctioned in terms of protection
of human life or health, I cannot accept that the criminal law is limited to
that because “certain forms and degrees of environmental pollution can directly
or indirectly, sooner or later, seriously harm or endanger human life and human
health”, as the paper approvingly cited by Gonthier J. in Ontario v.
Canadian Pacific, supra, observes. But the stage at which this may
be discovered is not easy to discern, and I agree with that paper that the
stewardship of the environment is a fundamental value of our society and that
Parliament may use its criminal law power to underline that value. The
criminal law must be able to keep pace with and protect our emerging values.
128 In
saying that Parliament may use its criminal law power in the interest of
protecting the environment or preventing pollution, there again appears to have
been confusion during the argument between the approach to the national concern
doctrine and the criminal law power. The national concern doctrine operates by
assigning full power to regulate an area to Parliament. Criminal law does not
work that way. Rather it seeks by discrete prohibitions to prevent evils
falling within a broad purpose, such as, for example, the protection of
health. In the criminal law area, reference to such broad policy objectives is
simply a means of ensuring that the prohibition is legitimately aimed at some
public evil Parliament wishes to suppress and so is not a colourable attempt to
deal with a matter falling exclusively within an area of provincial legislative
jurisdiction.
129 The
legitimate use of the criminal law I have just described in no way constitutes
an encroachment on provincial legislative power, though it may affect matters
falling within the latter’s ambit. This is made clear from the following
passage from Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501
(B.C.C.A.), at pp. 506-7, cited with approval in RJR-MacDonald, supra,
pp. 254-55:
. . . if the Federal
Parliament, to protect the public health against actual or threatened danger,
places restrictions on, and limits the number of preservatives that may be
used, it may do so under s. 91(27) of the B.N.A. Act. This is not in essence
an interference with property and civil rights. That may follow as an incident
but the real purpose (not colourable and not merely to aid what in substance is
an encroachment) is to prevent actual, or threatened injury or the likelihood
of injury of the most serious kind to all inhabitants of the Dominion.
. . .
The primary object
of this legislation is the public safety ‑‑ protecting it from threatened injury. If that is its main purpose ‑‑
and not a mere pretence for the invasion of civil rights ‑‑ it is
none the less valid. . . .
I shall have more to say about this later.
130 I
conclude that Parliament may validly enact prohibitions under its criminal law
power against specific acts for the purpose of preventing pollution or, to put
it in other terms, causing the entry into the environment of certain toxic
substances. I quite understand that a particular prohibition could be so broad
or all-encompassing as to be found to be, in pith and substance, really aimed
at regulating an area falling within the provincial domain and not exclusively
at protecting the environment. A sweeping prohibition like this (and this
would be equally true of one aimed generally at the protection of health)
would, in any case, probably be unworkable. But the attack here ultimately is
that the impugned provisions grant such a broad discretion to the Governor in
Council as to permit orders that go beyond federal power. I can imagine very
nice issues being raised concerning this matter under certain types of
legislation, though in such a case one would tend to interpret the legislation
narrowly if only to keep it within constitutional bounds. But one need not go
so far here. For, it seems to me, as we shall see, when one carefully peruses
the legislation, it becomes clear enough that Parliament has stayed well within
its power.
131 Though
I shall deal with this issue in more detail once I come to consider the
legislation, it is well at this point to recall that the use of the federal
criminal law power in no way precludes the provinces from exercising their
extensive powers under s. 92 to regulate and control the pollution of the
environment either independently or to supplement federal action. The
situation is really no different from the situation regarding the protection of
health where Parliament has for long exercised extensive control over such
matters as food and drugs by prohibitions grounded in the criminal law power.
This has not prevented the provinces from extensively regulating and
prohibiting many activities relating to health. The two levels of government
frequently work together to meet common concerns. The cooperative measures
relating to the use of tobacco are fully related in RJR-MacDonald, supra.
Nor, though it arises under a different technical basis, is the situation, in
substance, different as regards federal prohibitions against polluting water
for the purposes of protecting the fisheries. Here again there is a wide measure
of cooperation between the federal and provincial authorities to effect common
or complementary ends. It is also the case in many other areas. The fear that
the legislation impugned here would distort the federal-provincial balance
seems to me to be overstated.
132 One
last matter requires comment. The specific provision impugned in this case,
the Interim Order, would seem to me to be justified as a criminal prohibition
for the protection of human life and health alone (a purpose upheld most
recently in RJR-MacDonald). That would also at first sight appear to be
true of many of the prohibited uses of the substances in the List of Toxic
Substances in Schedule I. So if the protection of the environment does not
amount to a valid public purpose to justify criminal sanctions, it would be
simply a question of severing those portions of s. 11 of the Act that deal
solely with the environment to ensure the validity of the Interim Order and the
rest of the enabling provisions. After all, the protection of the environment,
as we earlier saw, is closely integrated, directly or indirectly, with the
protection of health. But for my part, I find this exercise wholly unnecessary.
The protection of the environment, through prohibitions against toxic
substances, seems to me to constitute a wholly legitimate public objective in
the exercise of the criminal law power. Humanity’s interest in the environment
surely extends beyond its own life and health.
The Provisions Respecting Toxic Substances
133 The
respondent, the mis en cause and their supporting interveners primarily
attack ss. 34 and 35 of the Act as constituting an infringement on provincial
regulatory powers conferred by the Constitution. This they do by submitting
that the power to regulate a substance is so broad as to encroach upon
provincial legislative jurisdiction. That is because of what they call the
broad “definition” given to toxic substances under s. 11, and particularly
para. (a), thereof which, it will be remembered, provides that:
11.
For the purposes of this Part, a substance is toxic if it is entering or may
enter the environment in a quantity or concentration or under conditions
(a) having or that may have an immediate or
long-term harmful effect on the environment;
This, along with the expansive definitions of “substance” and
“environment” in s. 3(1), makes it possible, they say, in effect to regulate
any substance that can in any way prove harmful to the environment.
134 I
cannot agree with this submission. As I see it, the argument focusses too
narrowly on a specific provision of the Act and for that matter only on certain
aspects of it, and then applies that provision in a manner that I do not think
is warranted by a consideration of the provisions of the Act as a whole and in
light of its background and purpose. I shall deal with the latter first.
Before doing so, however, I shall comment briefly on the concern expressed
about the breadth of the phraseology of the Act. As Gonthier J. observed in Ontario
v. Canadian Pacific, supra, this broad wording is unavoidable in
environmental protection legislation because of the breadth and complexity of
the subject and has to be kept in mind in interpreting the relevant
legislation. At para. 43, he stated:
What is clear from this brief
review of Canadian pollution prohibitions is that our legislators have
preferred to take a broad and general approach, and have avoided an exhaustive
codification of every circumstance in which pollution is prohibited. Such an
approach is hardly surprising in the field of environmental protection, given
that the nature of the environment (its complexity, and the wide range of
activities which might cause harm to it) is not conducive to precise
codification. Environmental protection legislation has, as a result, been
framed in a manner capable of responding to a wide variety of environmentally
harmful scenarios, including ones which might not have been foreseen by the
drafters of the legislation.
In light of this, he went on to hold that environmental protection
legislation should not be approached with the same rigour as statutes dealing
with less complex issues in applying the doctrine of vagueness developed under
s. 7 of the Charter . The effect of requiring greater precision would be
to frustrate the legislature in its attempt to protect the public against the
dangers flowing from pollution. He thus summarized his view, at para. 58:
In the environmental context, each
one of us is vulnerable to the health and property damage caused by pollution.
Where the legislature provides protection through regulatory statutes such as
the EPA, it is appropriate for courts to take a more deferential approach to
the Charter review of the offences contained in such statutes.
On this basis, Gonthier J. then turned to an examination of terms
similar to those in the Act under review. He was there dealing with a
provincial regulatory statute, but the same underlying need to protect the
vulnerable and the public generally is inherent in criminal offences of the
type in question here. This was recognized by Cory J. in Wholesale Travel
Group Inc., supra. That case concerned offences under the Competition
Act (formerly the Combines Investigation Act), long held to be
constitutionally supportable under Parliament’s criminal law power. Cory J.
carefully distinguished between the type of offences there in question, which
he described as regulatory offences, and “true crimes” such as murder. In a
passage, at p. 233, relied upon by Gonthier J. (at para. 57), he had this to
say:
The realities and complexities of
a modern industrial society coupled with the very real need to protect all of
society and particularly its vulnerable members, emphasize the critical
importance of regulatory offences in Canada today. Our country simply could
not function without extensive regulatory legislation. The protection provided
by such measures constitutes a second justification for the differential
treatment, for Charter purposes, of regulatory and criminal offences.
135 I
turn then to the background and purpose of the provisions under review. Part
II does not deal with the protection of the environment generally. It deals
simply with the control of toxic substances that may be released into the
environment under certain restricted circumstances, and does so through a
series of prohibitions to which penal sanctions are attached. It replaces the Environmental
Contaminants Act, first enacted in 1975 (S.C. 1974-75-76, c. 72), which was
intended to control substances entering or capable of entering into the
environment in a quantity or concentration sufficient to constitute a danger
to health or the environment; see s. 4 . The continuity of policy is evident
from the fact that the toxic substances controlled under the earlier
legislation including PCBs were automatically included as Schedule I of the
present legislation, entitled “List of Toxic Substances”.
136 The
underlying purpose for the enactment of the present Act, so far as toxic
substances are concerned, is evident from a series of reports of studies made
in the mid-1980s; see Environment Canada, From Cradle to Grave: A
Management Approach to Chemicals (1986); Environment Canada and Health and
Welfare Canada, Final Report of the Environmental Contaminants Act
Amendments Consultative Committee (1986). What these reveal is that the
earlier Act was clearly deficient in identifying substances that could be toxic
and that what was really needed was a regime whereby the government could
assess material that could be harmful to health and the environment before the
substance was already in use.
137 This
comes out more clearly in a document published by Environment Canada in 1987
which outlines the reasons why a new Act dealing with the environment was
necessary; see Environment Canada, The Right to a Healthy Environment: An
Overview of the Proposed Environmental Protection Act. The publication
made clear that existing measures had not been adequate and that because of the
negligent use of chemical products, the following had resulted: “Chemical
residues are everywhere: in our homes, offices and factories; in cities, on
farms, in wilderness areas far removed from the sources of contamination” (p.
1). It continued (at p. 1):
The fact that most human beings
have detectable levels of synthetic chemicals in their bodies is evidence of
our collective carelessness in using them. In his Report Card on the
environment in 1986, Environment Minister Tom McMillan gave Canada an “F” for
its ability to handle toxic substances.
138 There
was no intention that the Act should bar the use, importation or manufacture of
all chemical products, but rather that it should affect only those substances
that are dangerous to the environment, and then only if they are not regulated
by law. The report recognized that “[a] great deal of our industrial strength
and economic progress is based upon the use of chemicals” (p. 2), and that only
a fraction of these were “believed to be hazardous but few have been assessed
to make sure” (p. 2).
139 The
manner of assessment traditionally employed ‑‑ related as it was to
the concern for “pollution that could be seen, touched, smelled or tasted” and
“cleaning up a mess after it occurred” (p. 3) ‑‑ was no longer
adequate. As the report put it (at p. 3):
Toxic chemical contamination
cannot be handled in this way. Ordinary sense perception cannot identify
chemical contamination because it is usually invisible until the damage,
sometimes irreparable damage, has been done. Since chemical pollution
exists at the molecular level, it cannot usually be treated, contained or
recovered from the environment. And since its effects are pervasive and long
term, rather than local or immediate, quick-fix measures are not practical.
[Emphasis added.]
140 Not
surprisingly, the report emphasized the need to improve the procedures for
assessing whether chemical substances were hazardous; see e.g. pp. 10-11. The
Act would operate through the listing of chemicals, including “a schedule of
dangerous chemicals which are subject to regulation under the [Act]” (p. 15).
141 The
impugned Act appears to me to respond closely to these objectives. The subject
of toxic substances is dealt with principally in Part II of the Act. It
begins, we saw, with s. 11, which has been described as a “definition” in
argument. While the provision has some properties of a definition, to speak of
it in this way is misleading and does not do full justice to its purpose and
function. It should be observed that it does not purport to define a “toxic
substance” in the manner in which s. 3 defines various concepts, e.g. “air
contaminant”, “air pollution”, etc. which describes with finality what the
defined concept means. Rather, it sets forth that a substance can only be
toxic, for the purposes of Part II, if it is entering or may enter the
environment in a quantity or concentration or under conditions that result in
the detrimental effects on the environment, human life and human health
described in paras. (a) to (c). In other words, one cannot look
at a phrase like “having or that may have an immediate or long-term harmful
effect on the environment” in a manner divorced from the term “toxic” (i.e.
“poisonous”; see the Oxford English Dictionary (2nd ed. 1989)). As
well, the provision underlines that toxic as used in the Act includes
substances that are not per se, toxic, but that may, when released into
the environment in a certain quantity, concentration or condition, become
toxic. Lead, for example, which appears in Schedule I, entitled “List of Toxic
Substances”, is not per se toxic but it can be so when it enters the
environment in the course of its use. (This approach is strongly fortified by
the nature of Schedule I, which I shall examine later.) The phrase, in other
words, describes the nature of toxicity in respect of which substances are to
be tested or assessed.
142 I
add that the determination of whether the various components of s. 11 are
satisfied in respect of particular substances is by no means an easy task.
Whether substances enter or may enter the environment in a quantity,
concentration or conditions sufficient to have the effects set forth in that
provision are not matters that are generally known. Rather these are matters
that must be ascertained by assessments or tests set forth in s. 15, and in
accordance with a procedure that requires consultation with the provinces, the
informed community and the general public with a view to determining whether
certain substances “are toxic or capable of becoming toxic”, to use the
expression employed in the provisions of Part II dealing with testing,
beginning with the Ministers’ weeding out most substances by establishing a
priority list of substances to be tested. I note here that a similar
expression is used in s. 2(j), which falls outside Part II, where in
describing the administrative duties of the Government under the Act, it is
provided that it shall, consistently with the Constitution, act expeditiously
in assessing “whether substances in use in Canada are toxic or capable of
becoming toxic”. It is also evident from the portion of the preamble of the
Act earlier cited that the toxic substances intended to be dealt with by the
Act are toxic substances in their normal sense that may result in polluting the
environment in a significant degree. In light of this, it is difficult to
believe “toxic” is not given its ordinary meaning in the Act, and that s. 11
is, therefore, simply a drafting tool for the demarcation of those aspects of
toxicity that are to be considered in the tests required in the sections that
follow.
143 What
the assessments described in Part II are aimed at is the selection of new items
to add to the List of Toxic Substances set forth in Schedule I. Thus s. 11 is
the first of a series of provisions respecting testing or assessment for
toxicity. The first step in the process of assessment is s. 12, which requires
the Ministers to compile a Priority Substances List in respect of substances to
which the Ministers are satisfied priority should be given in assessing whether
they are toxic or capable of becoming toxic; this list and any amendments to it
are published in the Canada Gazette, and the provinces and other
interested parties are informed (s. 12(2) and (3)). The process of testing is
a detailed one and includes informing the provinces and other interested groups
and the public at all stages; see, for example, s. 13. In performing their
duties, the Ministers are given broad powers to collect data, conduct
investigations and correlate and evaluate any data so obtained (see, for
example, s. 15). The testing process culminates in a decision of the Ministers
to recommend or not to recommend that a substance be added to the List of Toxic
Substances in Schedule I of the Act, and, if a recommendation is made, what
regulations should be made in respect of the substance under s. 34.
144 The
recommendation of the Ministers marks the end of the testing phase and the
beginning of a new phase in the process, i.e. the regulatory phase. From this
point, as the terminology of the Act makes clear, Part II is concerned with
substances in the List of Toxic Substances in Schedule I only. This begins
with s. 33, under which the Governor in Council may, if satisfied that a
substance is toxic, on the recommendation of the Ministers, make an order
adding it to the List of Toxic Substances in Schedule I. It is important to
underline that what Part II of the Act provides for is a procedure to control
toxic substances generally by subjecting the many chemical substances in use in
Canada to testing. That is in furtherance of the duty imposed on the
Government, by s. 2(j), to make such assessments consistently with the
Constitution. If any such substance is found to be toxic, it may be added
to the List of Toxic Substances in Schedule I of the Act. Since that list
(like s. 2(j)) is outside Part II, one must assume “toxic” here refers
to toxic in a real sense, which as I stated earlier buttresses the argument
that the description given in s. 11 does the same, since one would think the substances
authorized to be added to a statute by the Governor in Council would be of the
same general character. I add that Driedger’s statement that “the words of an
Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament” bears repetition here; see E. A. Driedger, Construction
of Statutes (2nd ed. 1983), at p. 87.
145 More
needs to be said about this. When one examines the original Schedule, as it
appeared in the statute, it is evident that it comprises a very restricted
number of substances, nine, and it is also apparent that they set forth
asbestos, lead and mercury, substances that even to the uninitiated are well
known to be toxic in certain circumstances when they enter into the
environment. As well, as I noted earlier, the items in the statute were taken
from previous legislation, notably the Environmental Contaminants Act, under
which they were selected because the Ministers believed “on reasonable grounds”
that they “constitute or will constitute a significant danger to human health
or the environment” (s. 7(2)). I have earlier referred more generally to the
continuation of policy when the new legislation was enacted, and noted that the
change particularly aimed at by the new legislation was the strengthening of
the method of controlling toxic substances by improving the means for
identifying them. For all these reasons, I conclude that when the Governor in
Council makes an order adding to the List of Toxic Substances in Schedule I, it
involves a determination that the substances added are of a kind akin to those
already listed in Schedule I.
146 In
summary, as I see it, the broad purpose and effect of Part II is to provide a
procedure for assessing whether out of the many substances that may conceivably
fall within the ambit of s. 11, some should be added to the List of Toxic
Substances in Schedule I and, when an order to this effect is made, whether to
prohibit the use of the substance so added in the manner provided in the
regulations made under s. 34(1) subject to a penalty. These listed substances,
toxic in the ordinary sense, are those whose use in a manner contrary to the
regulations the Act ultimately prohibits. This is a limited prohibition
applicable to a restricted number of substances. The prohibition is enforced
by a penal sanction and is undergirded by a valid criminal objective, and so is
valid criminal legislation.
147 This,
in my mind, is consistent with the terms of the statute, its purpose, and
indeed common sense. It is precisely what one would expect of an environmental
statute ‑‑ a procedure to weed out from the vast number of
substances potentially harmful to the environment or human life those only that
pose significant risks of that type of harm. Specific targeting of toxic
substances based on individual assessment avoids resort to unnecessarily broad
prohibitions and their impact on the exercise of provincial powers. Having
regard to the particular nature and requirements of effective environmental
protection legislation, I do not share my colleagues’ concern that the
prohibition originates in a regulation, the breach of which gives rise to
criminal sanction. The careful targeting of toxic substances is borne out by
practice. Counsel for the interveners, Pollution Probe et al., informed us
that of the over 21,000 registered substances in commercial use in Canada (see Domestic
Substances List, SI/91-148, Canada Gazette, Part I Supp.; Domestic
Substances List, SOR/94-311, am. SOR/95-517), only 44 have been placed on
the Priority Substances List and scientifically assessed under the Act (Priority
Substances List, Canada Gazette, Part I (Feb. 11, 1989), p.
543). Of these, only 25 were found to be toxic within the meaning of s. 11 (It’s
About Our Health!: Towards Pollution Prevention, Report of the House of
Commons Standing Committee on Environment and Sustainable Development,
at pp. 63-64), and of these only a few have been the subject of a regulation
under s. 34; see Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans
Regulations, SOR/92-267; Pulp and Paper Mill Defoamer and Wood Chip
Regulations, SOR/92-268.
148 I
should perhaps note here that it is wholly appropriate to have recourse to
extrinsic material of the kind just referred to as well as of the type already
referred to in considering the constitutional validity of legislation,
especially when one is dealing with colourability, as is the case here. I
refer to Reference re Upper Churchill Water Rights Reversion Act, [1984]
1 S.C.R. 297, where McIntyre J., referring to earlier authorities, had this to
say, at p. 318:
I agree with the Court of Appeal
in the present case that extrinsic evidence is admissible to show the
background against which the legislation was enacted. I also agree that such
evidence is not receivable as an aid to construction of the statute.
However, I am also of the view that in constitutional cases, particularly
where there are allegations of colourability, extrinsic evidence may be
considered to ascertain not only the operation and effect of the impugned
legislation but its true object and purpose as well. This was also the
view of Dickson J. in the Reference re Residential Tenancies Act, 1979, supra,
at p. 721. . . . [Emphasis in third sentence added.]
149 I
turn now to a more detailed examination of the provisions of the Act impugned
in the present case, i.e. ss. 34 and 35. I mentioned earlier that the testing
phase provided for under Part II ends with s. 32. Up to that point, Part II
deals with the testing of substances that may be toxic when released into the
environment as described in s. 11. The remainder of Part II, beginning with s.
33, however, is no longer addressed at substances that may be toxic in that
broad sense. Rather it is more narrowly addressed at substances specifically
listed in the List of Toxic Substances in Schedule I of the Act. In
particular, s. 34 authorizes the Governor in Council to make regulations
setting forth the restrictions imposed on those using or dealing with such
substances. Failure to comply with any such restriction constitutes an offence
and is punishable on summary conviction by a fine not exceeding three hundred
thousand dollars or a term of imprisonment not exceeding six months, or both;
or, on indictment, by a fine not exceeding one million dollars or a term of
imprisonment not exceeding three years, or both (s. 113(f), (o)
and (p)).
150 Without
attempting to regurgitate the whole of s. 34, I shall simply give some flavour
of the nature of the prohibitions created by the regulations made thereunder.
Generally, s. 34 includes regulations providing for or imposing requirements
respecting the quantity or concentration of a substance listed in Schedule I
that may be released into the environment either alone or in combination with
others from any source, the places where such substances may be released, the
manufacturing or processing activities in the course of which the substance may
be released, the manner and conditions of release, and so on. In short, s. 34
precisely defines situations where the use of a substance in the List of Toxic
Substances in Schedule I is prohibited, and these prohibitions are made subject
to penal consequences. This is similar to the techniques Parliament has
employed in providing for and imposing highly detailed requirements and
standards in relation to food and drugs, which control their import, sale,
manufacturing, labelling, packaging, processing and storing (see Food and
Drugs Act, R.S.C., 1985, c. F-27 ). These techniques have, in a number of
cases including several in this Court, been upheld as valid criminal law; see Standard
Sausage, supra, esp. at pp. 506-7; R. v. Wetmore, [1983] 2
S.C.R. 284, at p. 289; RJR-MacDonald, supra. Other statutes
providing for extensive control of hazardous products that are justifiable in
whole or in part under the criminal law power include the Hazardous Products
Act, R.S.C., 1985, c. H-3 (see R. v. Cosman’s Furniture (1972) Ltd.
(1976), 32 C.C.C. (2d) 345 (Man. C.A.)), and the Explosives Act, R.S.C.,
1985, c. E-17 .
151 What
Parliament is doing in s. 34 is making provision for carefully tailoring the
prohibited action to specified substances used or dealt with in specific
circumstances. This type of tailoring is obviously necessary in defining the
scope of a criminal prohibition, and is, of course, within Parliament’s power.
As Laskin C.J. noted in Morgentaler v. The Queen, [1976] 1 S.C.R. 616,
at p. 627: “I need cite no authority for the proposition that Parliament may
determine what is not criminal as well as what is”. More recently, Stevenson
J. in R. v. Furtney, [1991] 3 S.C.R. 89, at pp. 106-7, speaking of
decriminalization of lotteries in certain circumstances, had this to say:
It constitutes a definition of the crime, defining the
reach of the offence, a constitutionally permissive exercise of the criminal
law power, reducing the area subject to criminal law prohibition where certain
conditions exist. I cannot characterize it as an invasion of provincial powers
any more than the appellants were themselves able to do.
152 As
Stevenson J. notes, this kind of legislation does not constitute an invasion of
provincial regulatory power; see also Attorney-General for British Columbia
v. Attorney-General for Canada, [1937] A.C. 368 (P.C.), at pp. 375-6; Boggs
v. The Queen, [1981] 1 S.C.R. 49, at pp. 60-61. This is true as well in
the case of detailed legislation such as that in question here, as can be seen
from the statement of Macdonald J.A. in Standard Sausage, cited supra,
at pp. 506-7 (affirmed in Wetmore, supra, and specifically relied
on in RJR-MacDonald, supra). This is based on even more
fundamental principles. As noted earlier, we are dealing with prohibitions
accompanied by penal sanctions, so that we are really not concerned with
whether these may incidentally affect property and civil rights but whether the
prohibitions are directed at a public evil. The matter was thus put in RJR-MacDonald,
at pp. 241-42:
These prohibitions are accompanied by penal sanctions
under s. 18 of the Act, which, as Lord Atkin noted in PATA, supra,
at p. 324, creates at least a prima facie indication that the Act is criminal law. However, the crucial further
question is whether the Act also has an underlying criminal public purpose in
the sense described by Rand J. in the Margarine Reference, supra.
The question, as Rand J. framed it, is whether the prohibition with penal
consequences is directed at an "evil" or injurious effect upon the
public.
153 In
truth, there is a broad area of concurrency between federal and provincial
powers in areas subjected to criminal prohibitions, and the courts have been
alert to the need to permit adequate breathing room for the exercise of
jurisdiction by both levels of government. Dickson J. put it this way in Schneider
v. The Queen, [1982] 2 S.C.R. 112, at p. 134:
The interface between criminal law
and provincial legislation which might be seen as impunging upon the federal
jurisdiction in the field of criminal law has not been closely drawn. As
Professor Hogg notes in Chapter 16 of his work, Constitutional Law of Canada,
the dominant tendency of the case law has been to uphold provincial penal
legislation; recent cases have been generous to provincial power, and “The
result is that over much of the field which may loosely be thought of as
criminal law legislative power is concurrent” (at p. 292).
This type of approach is essential in dealing with amorphous
subjects like health and the environment. In my reasons for the minority in Crown
Zellerbach, supra, (addressing an issue which the majority did not
discuss), I had this to say about the matter as it relates to environmental
pollution (at p. 455):
. . . environmental pollution
. . . is . . . all-pervasive. It is a by-product of
everything we do. In man's relationship with his environment, waste is
unavoidable. The problem is thus not new, although it is only recently that
the vast amount of waste products emitted into the atmosphere or dumped in
water has begun to exceed the ability of the atmosphere and water to absorb and
assimilate it on a global scale. There is thus cause for concern and
governments at every level have begun to deal with the many activities giving
rise to problems of pollution. In Canada, both federal and provincial levels
of government have extensive powers to deal with these matters. Both have
enacted comprehensive and specific schemes for the control of pollution and the
protection of the environment. Some environmental pollution problems are of
more direct concern to the federal government, some to the provincial
government. But a vast number are interrelated, and all levels of government
actively co-operate to deal with problems of mutual concern; for an example of
this, see the Great Lakes study in I.J.C. Report, op. cit.
I observe that in enacting the legislation in issue here, Parliament
was alive to the need for cooperation and coordination between the federal and
provincial authorities. This is evident throughout the Act. In particular,
under s. 34(2), (5) and (6), Parliament has made it clear that the provisions
of this Part are not to apply where a matter is otherwise regulated under other
equivalent federal or provincial legislation.
154 In
Crown Zellerbach, I expressed concern with the possibility of allocating
legislative power respecting environmental pollution exclusively to
Parliament. I would be equally concerned with an interpretation of the
Constitution that effectively allocated to the provinces, under general powers
such as property and civil rights, control over the environment in a manner
that prevented Parliament from exercising the leadership role expected of it by
the international community and its role in protecting the basic values of
Canadians regarding the environment through the instrumentality of the criminal
law power. Great sensitivity is required in this area since, as Professor
Lederman has rightly observed, environmental pollution “is no limited subject
or theme, [it] is a sweeping subject or theme virtually all-pervasive in its
legislative implications”; see W. R. Lederman, “Unity and Diversity in Canadian
Federalism: Ideals and Methods of Moderation” (1975), 53 Can. Bar Rev.
597, at p. 610.
155 Turning
then to s. 35, I mentioned that it is ancillary to s. 34. It deals with
emergency situations. The provision, it seems to me, indicates even more
clearly a criminal purpose, and throws further light on the intention of s. 34
and of the Act generally. It can only be brought into play when the Ministers
believe a substance is not specified in the List in Schedule I or is listed but
is not subjected to control under s. 34. In such a case, they may make an
interim order in respect of the substance if they believe “immediate action is
required to deal with a significant danger to the environment or to human life
or health”.
156 In
sum, then, I am of the view that Part II of the Act, properly construed, simply
provides a means to assess substances with a view to determining whether the
substances are sufficiently toxic to be added to Schedule I of the Act (which
contains a list of dangerous substances carried over from pre-existing
legislation), and provides by regulations under s. 34 the terms and conditions
under which they can be used, with provisions under s. 35 for by-passing the
ordinary provisions for testing and regulation under Part II in cases where
immediate action is required. I have reached this position independently of
the legal presumption that a legislature intends to confine itself to matters
within its competence; see Reference re Farm Products Marketing Act, [1957]
S.C.R. 198, at p. 255; Nova Scotia Board of Censors v. McNeil, [1978] 2
S.C.R. 662, at p. 688. However, it follows that the position I have taken
would by virtue of the presumption displace a possible reading of the Act that
would render it unconstitutional.
157 Since
I have found the empowering provisions, ss. 34 and 35, to be intra vires,
the only attack that could be brought against any action taken under them would
be that such action went beyond the authority granted by those provisions; in
the present case, for example, such an attack might consist in the allegation
that PCBs did not pose “a significant danger to the environment or to human
life or health” justifying the making of the Interim Order. This would seem to
me to be a tall order. The fact that PCBs are highly toxic substances should
require no demonstration. This has become well known to the general public and
is supported by an impressive array of scientific studies at both the national
and international levels. I list here merely a sample of those cited to us:
World Health Organization, U.N. Environment Programme and International Labour
Organization (joint report), Polychlorinated Biphenyls (PCBs) and
Polychlorinated Terphenyls (PCTs) Health and Safety Guide (1992); S. Dobson
and G. J. van Esch, Polychlorinated Biphenyls and Terphenyls (2nd ed.
1993), Environmental Health Criteria 140, World Health Organization; R. J.
Norstrom (Environment Canada) and D. C. G. Muir (Department of Fisheries and
Oceans), “Chlorinated Hydrocarbon Contaminants in Arctic Marine Mammals”, The
Science of the Total Environment 154 (1994) 107-28; U.N. Environment
Programme, Global Environmental Issues, supra; Environment
Canada, Department of Fisheries and Oceans, Health and Welfare Canada, Toxic
Chemicals in the Great Lakes and Associated Effects (1991); J. L. and S. W.
Jacobson, “A 4-Year Followup Study of Children Born to Consumers of Lake
Michigan Fish”, Journal of Great Lakes Research, 19(4) (1993): 776-83;
M. Gilbertson et al., “Great Lakes Embryo Mortality, Edema, and Deformities
Syndrome (GLEMEDS) in Colonial Fish-eating Birds: Similarity to Chick-Edema
Disease”, Journal of Toxicology and Environmental Health, 33 (1991):
455-520; Canadian Council of Resource and Environment Ministers, The PCB
Story (1986); Environment Canada and Health and Welfare Canada, Background
to the Regulation of Polychlorinated Biphenyls (PCB) in Canada: A report of
the Task Force on PCB, April 1 1976 to the Environmental Contaminants Committee
of Environment Canada and Health and Welfare Canada; Health and Welfare
Canada, A Review of the Toxicology and Human Health Aspects of PCBs
(1978-1982) (1985); OECD, Protection of the Environment by Control of
Polychlorinated Biphenyls (1973).
158 From
what appears in these studies, one can conclude that PCBs are not only highly
toxic but long lasting and very slow to break down in water, air or soil. They
do dissolve readily in fat tissues and other organic compounds, however, with
the result that they move up the food chain through birds and other animals and
eventually to humans. They pose significant risks of serious harm to both
animals and humans. As well they are extremely mobile. They evaporate from
soil and water and are transported great distances through the atmosphere.
High levels of PCBs have been found in a variety of arctic animals living
thousands of kilometres from any major source of PCBs. The extent of the
dangers they pose is reflected in the fact that they were the first substance
sought to be controlled in Canada under the Environmental Contaminants Act,
the predecessor of the present legislation. They were also the first substance
regulated in the United States under the Toxic Substances Control Act,
15 U.S.C. § 2605(c). And because of the trans-boundary nature of the threat,
they were the first substances targeted for joint action by Canada, the United
States and Mexico through the Commission for Environmental Cooperation
established under the North American Free Trade Agreement; see C.E.C. Council
of Ministers, Resolution # 95-5 “Sound Management of Chemicals”, Oct. 1995;
C.E.C. Secretariat Bulletin, vol. 2, No. 3, Winter/Spring 1996.
159 I
should say that the respondent and mis en cause do not contest the
toxicity of PCBs but simply argue that their control should not fall
exclusively within federal competence. They also note that there is one study
(G. J. Farquhar and J. Sykes, PCB Behavior in Soils (1978), at pp. 7, 8,
22, 23, 26, 33 and 34) that indicates that PCBs are absorbed, remain stable and
are not mobile. I have already discussed the issue of concurrency. So far as
mobility is concerned, whatever weight may be attached to the report in
relation to the national concern issue, it has no relevance in considering
federal jurisdiction under the criminal law power.
160 I
conclude, therefore, that the Interim Order is also valid under s. 91(27) of
the Constitution Act, 1867 .
Disposition
161 I
would allow the appeal with costs, set aside the judgment of the Court of
Appeal of Quebec and order that the matter be returned to the Court of summary
convictions to be dealt with in accordance with the Act. I would answer the
constitutional question as follows:
Q. Do s. 6(a)
of the Chlorobiphenyls Interim Order, P.C. 1989-296, and the enabling
legislative provisions, ss. 34 and 35 of the Canadian Environmental
Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in whole or in part
within the jurisdiction of the Parliament of Canada to make laws for the peace,
order and good government of Canada pursuant to s. 91 of the Constitution
Act, 1867 or its criminal law jurisdiction under s. 91(27) of the Constitution
Act, 1867 or otherwise fall within its jurisdiction?
A. Yes. They fall
wholly within Parliament’s power to enact laws under s. 91(27) of the Constitution
Act, 1867 . It is not necessary to consider the first issue.
Appeal allowed with costs, Lamer C.J. and
Sopinka, Iacobucci and Major JJ. dissenting.
Solicitor for the appellant: George
Thomson, Montreal.
Solicitors for the respondent: Ogilvy
Renault, Montreal.
Solicitor for the mis en cause: Alain
Gingras, Sainte‑Foy.
Solicitor for the intervener the Attorney General
for Saskatchewan: W. Brent Cotter, Regina.
Solicitors for the intervener IPSCO
Inc.: MacPherson Leslie & Tyerman, Regina.
Solicitors for the intervener the Société pour
vaincre la pollution inc.: Astell & Monette, Montreal.
Solicitors for the interveners Pollution Probe,
Great Lakes United (Canada), Canadian Environmental Law Association and Sierra
Legal Defence Fund: Stewart A. G. Elgie and Paul R. Muldoon,
Toronto.
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