R. v. Hydro-Québec [1997] 3 S.C.R. 213: 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 -

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.

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