Ontario v. Canadian Pacific Ltd.  2 S.C.R. 1031: Vagueness - Use of reasonable hypotheticals - Overbreadth - Environmental protection law drafted in very broad terms - Whether or not law capable of interpretation so as to allow for legal debate
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 ONTARIO
Constitutional law - Fundamental justice - Vagueness - Use of reasonable hypotheticals - Overbreadth - Environmental protection law drafted in very broad terms - Whether or not law capable of interpretation so as to allow for legal debate - Environmental Protection Act, R.S.O. 1980, c. 141, ss. 1(1)(c), (k), 13(1)(a) - Canadian Charter of Rights and Freedoms, s. 7.
During controlled burns along the appellant's railway right-of-way, dense smoke escaped onto adjacent properties. This led to complaints about injuries to health and property, and the appellant was charged under s. 13(1)(a) of Ontario's Environmental Protection Act (EPA). This provision constitutes a broad and general prohibition of the pollution "of the natural environment for any use that can be made of it". CP's acquittal in the Provincial Offences Court of Ontario was overturned on appeal to the Ontario Court of Justice, Provincial Division and a further appeal to the Court of Appeal was dismissed. The constitutional issues that were raised in that court were appealed here. The first, that the Ontario EPA was not constitutionally applicable to CP, a federal undertaking, was dismissed here as Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours,  A.C. 367, was determinative of the issue. The second, that s. 13(1)(a), and in particular the words "for any use that can be made of [the natural environment]", was unconstitutionally vague, overbroad, and therefore in violation of s. 7 of the Canadian Charter of Rights and Freedoms, remained.
Held: The appeal should be dismissed.
Per La Forest, L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci and Major JJ.: Section 13 (1)(a) EPA was neither unconstitutionally vague nor overbroad, and clearly covered the pollution activity at issue.
A law will be found unconstitutionally vague if it is so lacking in precision as not to give sufficient guidance for legal debate. Legislative precision is required because of (1) the need to provide fair notice to citizens of prohibited conduct and, (2) the need to proscribe enforcement discretion. Vagueness must be considered within the larger context and not in abstracto. A court can only determine whether an impugned provision affords sufficient guidance for legal debate after its interpretative role has been exhausted.
Using broad and general terms in legislation may well be justified. Section 7 of the Charter does not preclude the legislature from relying on the judiciary to determine whether those terms apply in particular fact situations. The standard of legal precision required by s. 7 will vary depending on the nature and subject matter of a particular legislative provision. A deferential approach should be taken in relation to legislation with legitimate social policy objectives.
The purpose of the EPA is to provide for the protection and conservation of the natural environment. Environmental protection has an obvious social importance and yet the nature of the environment does not lend itself to precise codification. In the context of environmental protection legislation, a generally framed pollution prohibition may be desirable from a public policy perspective. The generality of s. 13(1)(a) ensures flexibility in the law, so that the EPA may respond to a wide range of environmentally harmful scenarios which could not have been foreseen at the time of its enactment.
The fair notice element of vagueness analysis has procedural and substantive aspects. Procedural notice, which involves the mere fact of bringing the text of a law to the attention of citizens who are presumed to know the law is not a central concern of vagueness analysis. Instead, the focus of the analysis is the substantive aspect - an understanding that some conduct comes under the law. Whether citizens appreciate that the particular conduct is subject to legislative sanction is inextricably linked to societal values.
The purpose and subject matter of s. 13(1)(a) EPA, the societal values underlying it, and its nature as a regulatory offence, all have some bearing on the analysis of the s. 7 vagueness claim. Because environmental protection is an important societal value, legislators must have considerable room to manoeuvre in regulating pollution. Section 7 must not be employed to hinder flexible and ambitious legislative approaches to environmental protection.
To secure a conviction under s. 13(1)(a) EPA, the Crown must prove: (1) that the accused has emitted a contaminant; (2) that the contaminant was emitted into the natural environment; and (3) that the contaminant caused or was likely to cause the impairment of the quality of the natural environment for any use that can be made of it. The statutory definitions of "contaminant" and "natural environment" provide the basis for legal debate as to what constitutes a "contaminant" and the "natural environment". The term "impairment" has been the subject of legal debate in other contexts and provides the basis for legal debate. Judicial interpretation of what constitutes a "use" of the natural environment is easily accomplished through various interpretive techniques. The word must be considered in its context, should be interpreted in a manner which avoids de minimis applications and absurd results, and may be considered in contexts other than environmental law. These principles demonstrate that s. 13(1)(a) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable. A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.
After taking these interpretive principles and aids into account, the scope of s. 13(1)(a) is reasonably delineated, and legal debate can occur as to its application to a specific fact situation. This is all that s. 7 of the Charter requires.
Although its conduct fell within the "core" of polluting activity prohibited by s. 13(1)(a), CP is challenging the provision by relying on hypothetical fact situations which fall at the "periphery". Peripheral vagueness arises where a statute applies without question to a core of conduct but applies with uncertainty to other activities. Peripheral vagueness is the basis for the argument that the expression "for any use that can be made of [the natural environment]" is vague because it is not qualified as to time, degree, space or user, and thus fails to delineate clearly an "area of risk" for citizens.
Reasonable hypotheticals, however, have no place in the vagueness analysis under s. 7. There is no need to consider hypothetical fact situations, since it is clear after an analysis of the provision and its context that the law either provides or does not provide the basis for legal debate, thereby either satisfying or infringing the requirements of s. 7 of the Charter.
Unlike the analysis for overbreadth, where reasonable hypotheticals may be advanced, proportionality plays no role in vagueness analysis. When considering a vagueness claim, a court is required to perform its interpretive function in order to determine if an impugned provision provides the basis for legal debate. The comparative nature of proportionality is, therefore, not an element of vagueness analysis.
Section 13(1)(a) is not overbroad. Environmental protection is a legitimate concern of government and a very broad subject matter which does not lend itself to precise codification. The legislature, when pursuing the objective of environmental protection, is justified in choosing equally broad legislative language in order to provide for a necessary degree of flexibility. Section 13(1)(a), while it captures a broad range of polluting conduct, does not apply to pollution with only a trivial or minimal impact on a use of the natural environment. Moreover, the "use" condition limits the application of s. 13(1)(a) by requiring the Crown to establish not only that a polluting substance has been released, but also that an actual or likely use of the environment, which itself has some significance, has been impaired by the release. Speculative or purely imaginary uses of the environment are not captured by the provision. These limits on the application of s. 13(1)(a) prevent it from being deployed in situations where the objective of environmental protection is not implicated.
It was not necessary to decide whether the independent principle of overbreadth, as outlined in R. v. Heywood, is available to the appellant in the circumstances of this case. Section 13(1)(a) is simply not overbroad.
Per Lamer C.J. and Sopinka and Cory JJ.: Section 13(1)(a) of the Ontario EPA meets the test for vagueness under s. 7 in that it provides sufficient guidance for legal debate. The claim that the section is unconstitutionally overbroad also fails.
The availability of a defence can be relevant to s. 7 vagueness analysis if the fact that the defence exists sheds light on the meaning to be ascribed to an otherwise vague provision. The availability of the defence of due diligence, however, has no bearing on the question of whether s. 13(1)(a) EPA is unconstitutionally vague. This defence does not protect an accused from the consequences of his or her erroneous interpretation of a vague statutory provision and does nothing to impose standards on how such a provision is applied. Its availability is thus of no relevance to the s. 7 vagueness analysis.
Arguments based on hypothetical examples generally have little or no bearing on the s. 7 vagueness analysis since the task of a court conducting the analysis is to determine whether the law at issue provides "sufficient guidance for legal debate", as distinct from actually interpreting it. This conclusion, however, is not based on any doctrine of standing similar to that found in U.S. case law (such as Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)). As this Court has held on many occasions, a person charged with an offence in Canada need not show that the law at issue directly infringes his or her constitutional rights in order to have standing to raise a constitutional challenge. However, the fact that an accused's conduct clearly falls within the ambit of the impugned provision may still be relevant to the s. 7 vagueness analysis since the fact that an identifiable "core" of prohibited activity can be identified will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate. It should also be noted that s. 7 vagueness claims will often be raised in conjunction with other arguments that do call for a consideration of hypothetical examples.
As this Court held in R. v. Heywood, s. 7 overbreadth analysis requires a comparison of the state's objectives underlying a statutory provision with the means it has chosen to achieve these objectives. In order to make such a comparison, it is necessary to interpret the statutory provision in question so as to determine what the means at issue are. The key to the interpretation of s. 13(1)(a) EPA is the expression "impairment of the quality of the natural environment for any use that can be made of it". Interpreting this expression requires that meaning be ascribed to two distinct phrases: the phrases "impairment of the quality" and "for any use that can be made [of the natural environment]".
Ordinarily, it can be presumed that a statute's literal meaning, as construed in the context of the statute as a whole, best reflects the intention of the legislature. In some cases, however, this presumption can be countered by the competing presumption that the legislature does not intend to violate the constitution. If the words in a statutory provision reasonably bear an interpretation other than a literal reading, the presumption of constitutionality can sometimes justify rejecting the literal interpretation in favour of the non-literal reading, when the former interpretation would render the legislation unconstitutional and the latter would not. If, however, the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt the plain meaning, even if the legislation must then be struck down as unconstitutional.
The expression "for any use that can be made of [the natural environment]" has an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole, particularly the other paragraphs of s. 13(1). When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression "for any use that can be made of [the natural environment]" is "any use that can conceivably be made of the natural environment by any person or other living creature". In ordinary circumstances, once the "plain meaning" of the words in a statute have been identified there is no need for further interpretation. Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally. This is one of those exceptional cases, in that a literal interpretation of s. 13(1)(a) would fail to meet the test for overbreadth established in Heywood.
The state objective underlying s. 13(1)(a) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment". This legislative purpose, while broad, is not without limits. In particular, the legislative interest in safeguarding the environment for "uses" requires only that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future. Interpreted literally, s. 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s. 7 overbreadth scrutiny. There is, however, an alternative interpretation of s. 13(1)(a) that renders it constitutional. Section 13(1)(a) can be read as expressing the general intention of s. 13(1) as a whole, and paras. 13(1)(b) through (h) can be treated as setting out specific examples of "impairment[s] of the quality of the natural environment for any use that can be made of it". When viewed in this way, the restrictions place on the word "use" in paras. (b) through (h) can be seen as imported into (a) through a variant of the ejusdem generis principle. Interpreted in this manner, s. 13(1)(a) is no longer unconstitutionally overbroad, since the types of harms captured by paras. (b) through (h) fall squarely within the legislative intent underlying the section. In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of s. 13(1)(a). Thus, the subsection should be understood as covering the situations captured by paras. 13(1)(b) through (h), and any analogous situations that might arise.
The term "impairment" supports two alternative interpretations: it can be seen as covering even slight departures from the norm or, alternatively, as requiring a more marked departure. When interpreting a term that on its face bears two equally plausible meanings, it is appropriate to consider the consequences that would result from applying either interpretation to the statutory provision at issue, and to ask whether these consequences can plausibly be seen as having been intended by the legislature. If the term "impairment" in s. 13(1)(a) were interpreted as capturing all slight departures from the norm, virtually everyone in Ontario would regularly be in contravention of the section, and thus subject to fines or imprisonment. While the legislature has a legitimate interest in controlling pollution that results from multiple sources, each one insignificant in itself (such as air pollution resulting from automobile emissions) the legislature clearly did not consider the threat of imprisonment to be an appropriate means of addressing problems of this nature (for example, the legislature clearly did not contemplate the imprisonment of all Ontario drivers). Rather, the legislature intended to reserve the threat of imprisonment as a deterrent aimed at persons whose activities contribute significantly to an environmental problem. When the term "impairment" in s. 13(1)(a) is interpreted in this manner, the impugned provision is not overbroad in relation to the underlying legislative purpose.
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