R. v. Hydro-Québec

R. v. Hydro-Québec
Collection
Supreme Court Judgments
Date
1997-09-18
Report
[1997] 3 SCR 213
Case number
24652
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
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 24652
Decision Content
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).
Authors Cited
Bowden, Marie‑Ann. “Friends of the Oldman River Society v. Canada et al: Two Steps Forward, One Step Back” (1992), 56 Sask. L. Rev. 209.
Canada. Environment Canada. The Right to a Healthy Environment: An Overview of the Proposed Environmental Protection Act. By Tom McMillan. Ottawa: Environment Canada, 1987.
Canada. 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. Ottawa: Environment Canada, 1976.
Canada. Environment Canada and Health and Welfare Canada. Final Report of the Environmental Contaminants Act Amendments Consultative Committee. Ottawa: Environment Canada, 1986.
Canada. Environment Canada, Department of Fisheries and Oceans and Health and Welfare Canada. Toxic Chemicals in the Great Lakes and Associated Effects. Ottawa: Supply and Services Canada, 1991.
Canada. Health and Welfare Canada. Environmental Health Directorate, Health Protection Branch. A Review of the Toxicology and Human Health Aspects of PCBs (1978‑1982). Ottawa: Health and Welfare Canada, 1985.
Canada. House of Commons. Standing Committee on Environment and Sustainable Development. It’s About Our Health!: Towards Pollution Prevention. Report of the House of Commons Standing Committee on Environment and Sustainable Development. Ottawa: Queen’s Printer, 1995.
Canada. Law Reform Commission. Report No. 31. Recodifying Criminal Law. Ottawa: The Commission, 1987.
Canada. Law Reform Commission. Working Paper 44. Crimes Against the Environment. Ottawa: The Commission, 1985.
Canada. Task Force on the Management of Chemicals. From Cradle to Grave: A Management Approach to Chemicals. Ottawa: Environment Canada, 1986.
Canadian Council of Resource and Environment Ministers. The PCB Story. Toronto: The Council, 1986.
Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995, “toxic”.
Dobson, S., and G. J. van Esch. Environmental Health Criteria 140. Polychlorinated Biphenyls and Terphenyls, 2nd ed. Geneva: World Health Organization, 1993.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Farquhar, G. J., and J. Sykes. PCB Behavior in Soils. Ottawa: Waste Management Branch, Environmental Impact Control Directorate, Environmental Protection Service, 1978.
Fitzgerald, Edward A. “The Constitutionality of Toxic Substances Regulation Under the Canadian Environmental Protection Act” (1996), 30 U.B.C. L. Rev. 55.
Gibson, Dale. “Constitutional Jurisdiction over Environmental Management in Canada” (1973), 23 U.T.L.J. 54.
Gilbertson, Michael, 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.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose‑leaf).
Holland, Denys C., and John P. McGowan. Delegated Legislation in Canada. Toronto: Carswell, 1989.
Jacobson, Joseph L., and Sandra 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.
Leclair, Jean. “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.
Lederman, W. R. “Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation” (1975), 53 Can. Bar Rev. 597.
Norstrom, Ross J. (Environment Canada), and Derek 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.
Organization for Economic Co‑operation and Development. Protection of the Environment by Control of Polychlorinated Biphenyls. Paris: OECD, 1973.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “toxic”.
United Nations Environment Programme. Global Environmental Issues. Dublin: Tycooly International Publishing Ltd., 1982.
World Commission on Environment and Development. Our Common Future. Oxford: Oxford University Press, 1987.
World Health Organization, United Nations Environment Programme and International Labour Organization. Polychlorinated Biphenyls (PCBs) and Polychlorinated Terphenyls (PCTs) Health and Safety Guide. Geneva: World Health Organization, 1992.
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 Substanc