Ontario v. Canadian Pacific Ltd.

Ontario v. Canadian Pacific Ltd.
Collection
Supreme Court Judgments
Date
1995-07-20
Report
[1995] 2 SCR 1031
Case number
23721
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 23721
Decision Content
Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031
Canadian Pacific Limited Appellant
v.
Her Majesty The Queen in Right of Ontario Respondent
and
The Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General for Saskatchewan and
Canadian Environmental Law Association Interveners
Indexed as: Ontario v. Canadian Pacific Ltd.
File No.: 23721.
1995: January 24; 1995: July 20.
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, [1899] 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.
Cases Cited
By Gonthier J.
Followed: Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; applied: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; considered: R. v. Commander Business Furniture Inc. (1992), 9 C.E.L.R. (N.S.) 185; not followed: Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Parker v. Levy, 417 U.S. 733 (1974); referred to: R. v. Morgentaler (1985), 52 O.R. (2d) 353; R. v. Lopes (1988), 3 C.E.L.R. (N.S.) 78; R. v. Royal Pacific Seafarms Ltd. (1989), 7 W.C.B. (2d) 355; Québec (P.G.) v. Noranda Inc. (Mines Noranda Ltée) (1989), 4 C.E.L.R. (N.S.) 158; R. v. Algoma Steel Corp. (1991), 14 W.C.B. (2d) 264; R. v. Satellite Construction Ltd. (1992), 8 C.E.L.R. (N.S.) 215; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Stellato (1993), 78 C.C.C. (3d) 380, aff'd [1994] 2 S.C.R. 478; R. v. McKenzie (1955), 111 C.C.C. 317; R. v. Smith (1992), 73 C.C.C. (3d) 285; R. v. Winlaw (1988), 13 M.V.R. (2d) 112; R. v. Bruhjell, [1986] B.C.J. No. 746 (QL); R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269; The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482; Qualico Developments Ltd. v. M.N.R. (1984), 51 N.R. 387; Galt Art Metal Co. v. Pedlar People Ltd., [1935] O.R. 126; Elias v. Insurance Corp. of British Columbia (1992), 95 D.L.R. (4th) 303; Watts v. Centennial Insurance Co. (1967), 62 W.W.R. 175; Rockert v. The Queen, [1978] 2 S.C.R. 704; Stevenson v. R. (1980), 19 C.R. (3d) 74; Conlin v. Prowse (1993), 109 D.L.R. (4th) 243; Pickering Twp. v. Godfrey, [1958] O.R. 429; R. v. Zundel (1987), 58 O.R. (2d) 129; R. v. LeBeau (1988), 41 C.C.C. (3d) 163; Thornhill v. Alabama, 310 U.S. 88 (1940); R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Heywood, [1994] 3 S.C.R. 761.
By Lamer C.J.
Applied: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; considered: Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Creighton, [1993] 3 S.C.R. 3; not followed: Parker v. Levy, 417 U.S. 733 (1974); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); referred to: R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; Broadrick v. Oklahoma, 413 U.S. 601 (1973); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. McIntosh, [1995] 1 S.C.R. 686; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. DeSousa, [1992] 2 S.C.R. 944; Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Hibbert, [1995] 2 S.C.R. 973.
Statutes and Regulations Cited
Act to amend certain Acts respecting the Environment, S.O. 1988, c. 54, s. 10 [rep. and repl. R.S.O. 1980, c. 141, s. 13; subsequently renumbered, R.S.O. 1990, c. E.19, s. 14(1)].
Canadian Charter of Rights and Freedoms, ss. 7 , 12 .
Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), s. 67.
Clean Environment Act, R.S.N.B. 1973, c. C-6, s. 5.3 [ad. S.N.B. 1989, c. 52, s. 6; am. S.N.B. 1993, c. 13, s. 5].
Constitution Act, 1982, s. 52 .
Environment Quality Act, R.S.Q. 1977, c. Q-2, s. 20.
Environmental Management and Protection Act, S.S. 1983-84, c. E‑10.2, ss. 2(v), 34.1 [ad. S.S. 1992, c. 49, s. 5].
Environmental Protection Act, R.S.N.S. 1989, c. 150, ss. 3(f)(i)(A), (n), 23(1).
Environmental Protection Act, R.S.O. 1980, c. 141, ss. 1(1)(c) [am. S.O. 1983, c. 52, s. 1], (k), 2, 13(1)(a), (b), (c), (d), (e), (f), (g) [ibid., s. 4], (h) [idem], (2), 23(1)(c), (2), 73.
Environmental Protection Act, R.S.P.E.I. 1988, c. E‑9, s. 20.
Environmental Protection and Enhancement Act, S.A. 1992, c. E‑13.3, s. 98.
Municipal Act, R.S.O. 1950, c. 243, s. 390.
Waters Protection Act, R.S.N. 1990, c. W‑5, s. 8.
Authors Cited
Butler, Andrew S. "A Presumption of Statutory Conformity with the Charter " (1993), 19 Queen's L.J. 209.
Canada. Law Reform Commission. Working Paper 44. Crimes Against the Environment. Ottawa: The Commission, 1985.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Jadach, Christina L. "Pre‑enforcement Constitutional Challenges to Legislation after Hoffman Estates: Limiting the Vagueness and Overbreadth Doctrines" (1983), 20 Harv. J. on Legis. 617.
United Nations. World Commission on Environmental and Development. Experts Group on Environmental Law. Report of the Experts Group on Environmental Law of the World Commission on Environment and Development (WCED). Legal Principles for Environmental Protection and Sustainable Development. U.N. Doc. WCED/86/23/Add. 1 (1986), A/42/427, Annex I. In Edith Brown Weiss, Danile Barstow Magraw and Paul C. Szasz, eds. International Environmental Law: Basic Instruments and References. Dobbs Ferry, N.Y.: Transnational Publishers, Inc., 1992.
APPEAL from a judgment of the Ontario Court of Appeal (1993), 13 O.R. (3d) 389, 63 O.A.C. 222, 103 D.L.R. (4th) 255, 10 C.E.L.R. (N.S.) 169, 81 C.C.C. (3d) 498, 22 C.R. (4th) 238, 15 C.R.R. (2d) 278, allowing an appeal from a judgment of Fraser Prov. Div. J. (1992), 9 C.E.L.R. (N.S.) 26 allowing an appeal from acquittal by the Provincial Offences Court of Ontario. Appeal dismissed.
H. C. Wendlandt and G. Despars, for the appellant.
David Lepofsky and Pat Moran, for the respondent.
Jean Bouchard, for the intervener the Attorney General of Quebec.
Kenneth J. Tyler and Stewart J. Pierce, for the intervener the Attorney General of Manitoba.
Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
Richard D. Lindgren, for the intervener Canadian Environmental Law Association (written submission only).
The reasons of Lamer C.J. and Sopinka and Cory JJ. were delivered by
1 Lamer C.J. -- I have read the reasons of my colleague Justice Gonthier, and find myself in substantial agreement with his analysis of the appellant's claim that s. 13(1)(a) of the Ontario Environmental Protection Act, R.S.O. 1980, c. 141 ("EPA"), is unconstitutionally vague, subject to certain additional comments that I will set out below. In particular, I agree with my colleague's conclusion that the section provides sufficient guidance for legal debate, and therefore meets the test for vagueness set out by this Court in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. On the question of the actual interpretation that should be given to s. 13(1)(a), however, I find that although my colleague and I adopt substantially similar interpretations of the section, we reach our conclusions on the basis of different principles of construction. Therefore, while I agree with Gonthier J. that the appellant's alternative claim that the section is unconstitutionally overbroad also fails, and that the appeal should accordingly be dismissed, I arrive at this conclusion by a somewhat different route from that taken by my colleague.
I. The Section 7 Vagueness Claim
2 In Nova Scotia Pharmaceutical Society, the Court (per Gonthier J.) established the test for assessing "void for vagueness" claims under s. 7 of the Canadian Charter of Rights and Freedoms , declaring (at p. 643) that "a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate". As my colleague observes in his reasons, vague laws have the potential to violate the requirements of the principles of fundamental justice that citizens be provided with fair notice of prohibited conduct, and that there be adequate safeguards against selective and arbitrary law enforcement. As I noted above, on the issue of vagueness I am in substantial agreement with Gonthier J.'s s. 7 analysis, and with his conclusion that s. 13(1)(a) EPA is not unconstitutionally vague. I wish, however, to make a few brief comments in connection with two points: the relevance of the existence of a defence of due diligence to the issue of vagueness under s. 7 , and the role of "reasonable hypotheticals" in the s. 7 vagueness analysis.
A.The Relevance of the Defence of Due Diligence to Section 7 Vagueness Analysis
3 In its submissions, the respondent argued that the fact that persons charged with violations of s. 13(1)(a) can raise a defence of "due diligence" was relevant to the issue of whether the subsection fails s. 7 vagueness analysis. With respect, I do not agree that the availability of the defence of due diligence has any bearing on the question of whether the impugned provision in the present case is unconstitutionally vague. In my view, while the fact that a defence exists will often shed light on the meaning that is to be ascribed to an otherwise vague provision, and thus be relevant to s. 7 vagueness analysis, this is not the case with every defence. What is important is the relation between the defence and the terms of the statute that are said to be unconstitutionally imprecise. In R. v. Keegstra, [1990] 3 S.C.R. 697, for instance, the defences established in s. 319(3) of the Criminal Code, R.S.C., 1985, c. C-46 , to prosecutions for "wilfully promoting hatred" under s. 319(2) provided considerable assistance in interpreting the ambit of the offence in s. 319(2) . As Dickson C.J. observed (at p. 779, in the context of considering vagueness under s. 1 of the Charter ):
[The s. 319(3) ] defences are ... intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described [in s. 319(3) ] are thus given a strong signal that their activity will not be swept into the ambit of the offence. The result is that what danger exists that s. 319(2) is overbroad or unduly vague, or will be perceived as such, is significantly reduced.
4 In contrast, the fact that the defence of due diligence is available does not help provide a basis for interpreting the term "use" in s. 13(1)(a) of the Ontario EPA. As Dickson J. (as he then was) noted in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, at p. 1326:
[The defence of due diligence] involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.
The defence does not, however, protect an accused from his or her erroneous interpretation of the terms of a statute, since this is an error of law rather than of fact. This sort of error is, of course, the type most likely to arise as a consequence of vague language having been used in a statute. Although the defence of due diligence prevents some actors from being found liable under s. 13(1)(a), it does nothing to impose standards on the application of the section in other cases. In my view, since the availability of the defence does nothing to address the problems that might potentially arise as a result of the imprecise language employed by the drafters of s. 13(1)(a), it is of no relevance to the s. 7 vagueness analysis.
B.The Role of Reasonable Hypotheticals in Section 7 Vagueness Analysis
5 I agree with Gonthier J.'s conclusion that arguments based on hypothetical fact situations will generally have little or no bearing on the analysis that is required when assessing s. 7 vagueness claims. I wish to emphasize, however, that this results from the nature of the s. 7 vagueness analysis itself, as set out in Nova Scotia Pharmaceutical Society, supra, rather than as a consequence of any limitations on standing akin to those found in American case law. As Nova Scotia Pharmaceutical Society indicates, the task of a court conducting s. 7 vagueness analysis is to determine whether the law at issue provides "sufficient guidance for legal debate". Put another way, the court must determine whether the words chosen by the legislature provide an adequate foundation upon which to anchor an interpretation of the law that provides adequate notice of prohibited conduct and guards against "standardless sweeps". Determining whether a law can be interpreted in this manner is, however, a distinct process from actually interpreting the law. While a court that actually interprets a law also demonstrates in the process that the law is capable of interpretation, the converse is not true -- it is possible to establish that a law is capable of being interpreted while leaving for another day the actual problem of interpreting it. When called on actually to interpret a law, a court will usually be required to draw lines separating prohibited from non-prohibited conduct. In so doing, considering how the law would apply to hypothetical fact situations will often be a useful analytical tool. In contrast, when analysing whether a law is capable of being interpreted, recourse to such hypotheticals will often be unnecessary, since all that is required is that it be established that the law provides sufficient guidance to direct the interpretive exercise.
6 Although hypothetical examples are thus of limited utility when conducting s. 7 vagueness analysis of legislation, I wish to emphasize that this conclusion has nothing whatsoever to do with the question of who has standing to challenge the legislation's constitutionality. More specifically, this conclusion is not based on any doctrine of standing similar to that found in American cases such as Parker v. Levy, 417 U.S. 733 (1974), and Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), cases that were relied on by the trial judge and the Court of Appeal in the present case. In Parker, the U.S. Supreme Court held, at p. 756, that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness". This position was subsequently reaffirmed in Hoffman Estates, supra, where the court stated, at p. 495:
A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
This approach accords with the general American doctrine on standing to challenge legislation's constitutionality, which was described by the U.S. Supreme Court in the following terms in Broadrick v. Oklahoma, 413 U.S. 601 (1973), per White J., at pp. 610-11 :
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.... [This principle reflects] the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws.
7 This Court, however, has adopted a different approach to the question of standing in Canada, in recognition of the Canadian constitution's distinct structure -- in particular, the existence of s. 52 of the Constitution Act, 1982 , which declares that laws that are inconsistent with the provisions of the Constitution are "to the extent of the inconsistency, of no force or effect". As Dickson J. observed in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 313-14:
Section 52 [of the Constitution Act, 1982 ] sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent [Big M] did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional. If it had been engaged in such "public interest litigation" it would have had to fulfill the status requirements laid down by this Court in the trilogy of "standing" cases ... but that was not the reason for its appearance in Court.
Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2 (a) of the Charter and by reason of s. 52 of the Constitution Act, 1982 , it is of no force or effect.
This principle has been reconfirmed by this Court on many subsequent occasions. For instance, in R. v. Morgentaler, [1988] 1 S.C.R. 30, Dr. Morgentaler was allowed to argue that the law under which he was charged violated s. 7 as a consequence of its impact on some women, and his acquittal was restored. Similarly, in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, the Court confirmed that a corporation was entitled to challenge the constitutionality of the law under which it was charged, notwithstanding the fact that the constitutional challenge was based on s. 7 , which does not grant rights to corporations (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927). In my view, this principle applies equally to s. 7 vagueness challenges. That is, a person charged with an offence need not demonstrate that the law at issue directly infringes his or her constitutional rights in order to obtain standing to raise a constitutional challenge. That is not to say, however, that the fact that an accused's conduct clearly falls within the ambit of the law is irrelevant to the question of whether the law is unconstitutionally vague -- rather, the fact that there is some identifiable "core" of activity prohibited by the law will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate. Furthermore, the fact that an accused has standing to challenge a law does not inevitably mean that he or she will benefit from a finding that the law is unconstitutional, since there is always the possibility that a court might be able to sever or read down the offending provision so as to maintain its applicability to the accused's particular case (whether this is possible will, of course, depend on how the principles I set out in Schachter v. Canada, [1992] 2 S.C.R. 679, at pp. 705ff, apply to the particular piece of legislation at issue). Depending on the circumstances, the fact that the impugned law is directed at an identifiable "core" of conduct may be a factor to consider in deciding whether either of these remedial alternatives are appropriate. Of course, if it proves necessary to strike the offending law down in its entirety, this invalidation will apply to the prosecution of the accused's case: see Wholesale Travel, supra, at pp. 179ff.
8 It should be noted that although s. 7 vagueness analysis itself requires courts only to establish whether or not a given law is capable of being interpreted, and does not demand that courts take the next step and actually provide an interpretation, vagueness claims will often be raised in conjunction with other arguments that do require courts actually to engage in the interpretive process. Once it has been established that a given law provides sufficient guidance for legal debate, many accused persons will attempt to argue that the law, when properly understood, does not prohibit their conduct. Alternatively, they may argue that while the law does apply to them on its face, the law itself is unconstitutionally overbroad (see R. v. Heywood, [1994] 3 S.C.R. 761) and thus violates s. 7 . In order to resolve these claims, it will generally be necessary for a court actually to interpret the law and identify the boundary between prohibited and non-prohibited conduct. When conducting this analysis, it will often prove necessary to consider hypotheticals, even when this is not required at the s. 7 vagueness analysis stage.
II. The Section 7 Overbreadth Claim
9 The alternative constitutional argument open to the appellant in this case is based on the protection s. 7 of the Charter provides against overbroad laws. The principles governing s. 7 overbreadth analysis were set out by Cory J. (writing for the majority) in Heywood, supra, at pp. 792-93:
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
He continued by observing that "[r]eviewing legislation for overbreadth as a principle of fundamental justice is simply an example of balancing of the State interest against that of the individual". Furthermore, he stated at p. 793:
In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter , legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator.
10 Before the state's means can be compared to its objectives, it is necessary to determine what exactly those means are -- that is, the statutory provision that is at issue must be interpreted, in order that its true scope be identified. The key to the interpretation of s. 13(1)(a) of the Ontario EPA is the expression "impairment of the quality of the natural environment for any use that can be made of it", a phrase which both defines the scope of s. 13(1)(a) and specifies what is and what is not a "contaminant", as defined in s. 1(1)(c) of the Act. As Gonthier J.'s reasons indicate, interpreting this expression