Englobe Environment Inc. v. Canadian Food Inspection Agency

Englobe Environment Inc. v. Canada (Food Inspection Agency)
Court (s) Database
Federal Court Decisions
Date
2023-12-12
Neutral citation
2023 FC 1676
File numbers
T-758-22
Decision Content
Date: 20231212
Docket: T-758-22
Citation: 2023 FC 1676
Ottawa, Ontario, December 12, 2023
PRESENT: Mr. Justice Sébastien Grammond
BETWEEN:
ENGLOBE ENVIRONMENT INC.
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
JUDGMENT AND REASONS
[1] The Canadian Food Inspection Agency [the Agency] seized soils manufactured by the applicant, Englobe Environment Inc. [Englobe], because they contained certain metals or metalloids in concentrations that exceeded allowable standards. Englobe objected to the seizure on various administrative law grounds. It also argued that the federal statutory and regulatory provisions that authorized the seizure were unconstitutional.
[2] Englobe’s application is dismissed. The impugned provisions were validly enacted pursuant to the concurrent jurisdiction over agriculture set out in section 95 of the Constitution Act, 1867 and the federal jurisdiction over criminal law set out in subsection 91(27) of the same Act. They are not contrary to section 7 of the Canadian Charter of Rights and Freedoms for being overbroad. In terms of administrative law, the regulatory provisions at issue do not constitute a prohibited subdelegation or an abdication of power. Lastly, the decisions made by the Agency regarding the seizures are reasonable.
I. Background
[3] For a proper understanding of these reasons, it is first necessary to outline the relevant statutory and regulatory framework. A short description of the facts that gave rise to this application will follow.
A. Legal Background
[4] The Fertilizers Act, RSC 1985, c F-10 [the Act], was originally enacted in 1885 (SC 1885, c 68). Among other things, its provisions require various types of fertilizers to be registered before they are marketed and set out certain obligations with respect to the labelling of fertilizers. It appears that the Act was initially intended to protect farmers from fraud and poor-quality fertilizers.
[5] In 2015, with a view to reducing the regulatory burden, the Act was amended to remove the requirement for prior registration of various types of fertilizers. Ensuring the safety of fertilizers then became a key purpose of the Act. It is in this context that Parliament added section 3.1, which reads as follows:
3.1 No person shall manufacture, sell, import or export in contravention of the regulations any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment.
3.1 Il est interdit à toute personne de fabriquer, de vendre, d’importer ou d’exporter, en contravention avec les règlements, tout engrais ou supplément qui présentent un risque de préjudice à la santé humaine, animale ou végétale ou à l’environnement.
[6] Section 5 of the Act was also amended to give the Governor in Council the authority to make regulations to enforce section 3.1, in particular to delineate the prohibited conduct and to govern the evaluation of the risk of harm. In 2020, the Governor in Council exercised this authority by adding section 2.1 to the Fertilizers Regulations, CRC, c 666 [the Regulations], which reads as follows:
2.1 A person shall not manufacture, sell, import or export any fertilizer or supplement that contains any substance or mixture of substances in quantities that present a risk of harm to human, animal or plant health or the environment, except pests, if the fertilizer or supplement is used according to its directions for use, or in amounts not in excess of the amount that is necessary to achieve its intended purposes.
2.1 Il est interdit de fabriquer, de vendre, d’importer ou d’exporter tout engrais ou supplément qui contient une substance ou un mélange de substances en des quantités qui présentent un risque de préjudice à la santé humaine, animale ou végétale ou à l’environnement, à l’exception des parasites, si l’engrais ou le supplément est utilisé selon son mode d’emploi ou appliqué en une quantité qui ne dépasse pas la quantité nécessaire pour atteindre l’objectif visé.
[7] The Agency is responsible for the administration of the Act.
[8] Section 2.1 of the Regulations does not set out specific thresholds beyond which some substances would “present a risk of harm to human, animal or plant health or the environment”. To ensure a certain degree of consistency in enforcing the Act, the Agency relies on the thresholds and the calculation method set forth in a trade memorandum bearing number T-4-93 [Memorandum T-4-93]. For certain chemical elements, such as nickel, molybdenum and selenium, the Memorandum sets out the maximum quantities of the elements that a hectare of land can receive over a period of 45 years. It provides a method for calculating the maximum concentration of these elements in a fertilizer or supplement, based on the quantity and frequency of application indicated by the manufacturer.
B. Factual Background
[9] Englobe is a corporation that specializes in treating, composting and repurposing organic materials. One of its facilities is located in Saint‑Henri‑de‑Lévis, Quebec. It produces compost and soils from various raw materials, such as plant waste, food waste, municipal biosolids (i.e., solid waste from the wastewater treatment process), and wood bark and chips.
[10] On May 17, 2021, the Agency took samples of two soil products developed by Englobe: one named “Terre à potager St-Henri” [St‑Henri vegetable garden soil] and the other “Multimix pelouse St-Henri” [St‑Henri lawn multi-mix]. Englobe also took its own samples. An analysis of the Agency’s samples conducted by its laboratory revealed concentrations of nickel, molybdenum and selenium that were greater than the maximum concentrations indicated in Memorandum T-4-93. On July 13, 2021, the Agency sent notices of detention under section 9 of the Act, which amounts to a form of seizure. These notices were based on the fact that the Agency’s inspector believed on reasonable grounds that the soils in question contravened section 2.1 of the Regulations. It is not disputed that the soils constitute either fertilizers or supplements under the Act.
[11] The Agency and Englobe engaged in discussions in an attempt to resolve the situation. The Agency authorized Englobe to mix some of the detained soils with other soils with the hope of reducing the concentration of the problematic elements. On September 16, 2021, the Agency and Englobe took samples of the new mixture. The analysis conducted by the Agency once again revealed excessively high concentrations of nickel, molybdenum and selenium. On October 21, 2021, the Agency sent new notices of non‑compliance regarding this mixture.
[12] Starting in July 2021, Englobe expressed doubts about the reliability of the Agency’s laboratory results. After checking with the laboratory, the Agency’s inspector replied that no errors had been made in the sampling and analysis process and refused to take new samples. In the fall, Englobe provided the Agency with the results of a private laboratory’s analysis of a sample taken in July 2021. The results were lower than those of the Agency’s laboratory and were below the standards for molybdenum and selenium set out in Memorandum T-4-93. Englobe also requested confirmation that the Agency’s results were presented on a wet basis and not on a dry basis. In December 2021, the Agency confirmed that the results were expressed on a wet basis. In addition, it noted that the laboratory retained by Englobe was not accredited to use the method selected for the analysis.
[13] Subsequent exchanges did not lead to an agreement. In March 2022, Englobe sent a demand letter to the Agency, requesting that the Agency release the products. In its letter, Englobe reiterated its doubts about the reliability of the Agency’s laboratory analyses and presented laboratory results from the samples taken from the new mixture in September 2021, as conducted by private laboratories. In addition, Englobe alleged that Memorandum T‑4‑93 was not an appropriate tool for assessing the safety of soils intended for single use and asserted that the standards in the Memorandum should have been adopted by regulation. In April 2022, Englobe filed this application for judicial review.
[14] It is worth noting how Englobe’s arguments challenging the notices of detention have evolved. They initially focused on the validity of the laboratory results, then on the merits of the standards found in Memorandum T-4-93 and then on the invalidity of the Act and the Regulations on constitutional and administrative law grounds. At the hearing, Englobe’s oral submissions were dedicated almost exclusively to the allegations that the Act and the Regulations are invalid. These reasons will therefore focus mainly on these issues.
[15] In support of its application for judicial review, Englobe filed a report by agrologist Marc Hébert, which questions the reliability of the Agency’s laboratory results, states that Englobe products are safe and criticizes the approach that underpins Memorandum T-4-93. The Agency produced extensive evidence in response and there is no need to describe it in detail at this stage. The Agency also filed a motion to strike Mr. Hébert’s report.
[16] Evidence that was not in the record before the administrative decision-maker is not usually admissible on judicial review: Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at paragraphs 86 and 98. In constitutional matters, the approach is more flexible, since, as we will see below, various forms of extrinsic evidence may be relevant in determining the pith and substance of legislation or in understanding how it relates to a head of jurisdiction. Given the evolving position taken by Englobe, the determinative issues do not require a detailed analysis of the evidence. It would therefore be counterproductive to decide the motion to strike. To the extent that these reasons refer to evidence, that evidence is admissible under the rules cited above.
[17] Shortly after the application was heard, the Supreme Court of Canada rendered its decision in the Reference re Impact Assessment Act, 2023 SCC 23 [Impact Assessment Reference]. The parties were invited to make additional submissions regarding this decision. However, it does not change the basic rules for the division of powers and does not deal with jurisdiction over agriculture and criminal law. Hence, it has little impact on the outcome of this case. Even more recently, this Court rendered judgment in Responsible Plastic Use Coalition v Canada (Environment and Climate Change), 2023 FC 1511. The decision challenged in that case, however, has little in common with the statutory and regulatory provisions that are the focus of this application.
II. Analysis
[18] To explain why the application is being dismissed, Englobe’s submissions will be analyzed in the order they were presented, namely, Parliament’s jurisdiction to enact the Act, the alleged overbreadth of the impugned provisions, the validity of the Regulations and the Memorandum in light of administrative law principles and the reasonableness of the Agency’s decisions.
A. Division of Powers
[19] For the reasons that follow, Parliament had jurisdiction to enact the impugned provisions, including section 3.1 of the Act. The pith and substance of section 3.1 is the prohibition of fertilizers and supplements that present a risk of harm to human, animal or plant health or the environment. The pith and substance falls within the concurrent jurisdiction over agriculture set out in section 95 of the Constitution Act, 1867 and within the federal jurisdiction over criminal law set out in subsection 91(27) of the same act.
(1) Analytical Framework
[20] The Supreme Court of Canada succinctly summarized the two stages of the analytical framework for division of powers cases in its recent decision in Murray-Hall v Quebec (Attorney General), 2023 SCC 10, at paragraph 22 [Murray-Hall]:
To decide whether a law or some of its provisions are constitutionally valid under the division of powers, courts must first characterize the law or provisions and then, on that basis, classify them by reference to the heads of power listed in ss. [91 to 95] of the Constitution Act, 1867. . .
[21] The first stage aims at ascertaining the “pith and substance” of the law or statutory provisions at issue. To do this, courts analyze both the purpose and effects of the law. In the Reference re Securities Act, 2011 SCC 66 at paragraph 64, [2011] 3 SCR 837 [Securities Reference], the Supreme Court notes that:
Intrinsic evidence, such as purpose clauses and the general structure of the statute, may reveal the purpose of a law. Extrinsic evidence, such as Hansard or other accounts of the legislative process, may also assist in determining a law’s purpose. The effects of a law include the legal effect of the text as well as practical consequences of the application of the statute . . .
[22] The second stage involves determining whether the pith and substance of the law can fall under one of the heads of power of the enacting level of government. As the Supreme Court notes in the Securities Reference, at paragraph 65, “[t]his may require interpretation of the scope of the power”. Since Citizens Insurance Co of Canada v Parsons, (1881) 7 App Cas 96 (PC), it has been generally accepted that the classes of subjects referred to in sections 91 to 95 of the Constitution Act, 1867 must be read together. It follows that very broadly worded heads of power (like subsections 91(2) or 92(13)) cannot subsume the more specific heads of power that have been explicitly assigned: Securities Reference, at paragraph 72.
[23] Nevertheless, the heads of power listed in sections 91 to 95 must not be narrowly interpreted or confined to the realities known in 1867: Reference re Same-Sex Marriage, 2004 SCC 79 at paragraphs 22, 23 and 28, [2004] 3 SCR 698 [Same-Sex Marriage Reference]; Reference re Employment Insurance Act (Can), ss 22 and 23, 2005 SCC 56 at paragraphs 46–47, [2005] 2 SCR 669.
[24] In some cases, Parliament and the provincial legislatures can enact similar statutory provisions. The Supreme Court explained this situation in the Securities Reference at paragraph 66:
Canadian constitutional law has long recognized that the same subject or “matter” may possess both federal and provincial aspects. This means that a federal law may govern a matter from one perspective and a provincial law from another. The federal law pursues an objective that in pith and substance falls within Parliament’s jurisdiction, while the provincial law pursues a different objective that falls within provincial jurisdiction . . . This concept, known as the double aspect doctrine, allows for the concurrent application of both federal and provincial legislation . . .
[25] Consequently, if, through its pith and substance, a law falls under one of the heads of power of the enacting level of government, its effects on the exercise of the other level of government’s jurisdiction are irrelevant: Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 at paragraph 38, [2015] 1 SCR 693 [the Firearms Registry case]; Groupe Maison Candiac Inc v Canada (Attorney General), 2020 FCA 88 at paragraph 33, [2020] 3 FCR 645 [Groupe Maison Candiac].
[26] The Supreme Court has reiterated on several occasions that the principles governing the interpretation of sections 91 to 95 of the Constitution Act, 1867 are intended to maintain the balance of federalism: see, for example, Canadian Western Bank v Alberta, 2007 SCC 22 at paragraph 24, [2007] 2 SCR 3 [Canadian Western Bank]; R v Comeau, 2018 SCC 15 at paragraphs 78–83, [2018] 1 SCR 342 [Comeau]. The Court has sometimes illustrated this balance by resorting to the principle of subsidiarity, which means that “legislative action is to be taken by the government that is closest to the citizen and is thus considered to be in the best position to respond to the citizen’s concerns”: Reference re Assisted Human Reproduction Act, 2010 SCC 61 at paragraph 183, [2010] 3 SCR 457 (LeBel and Deschamps JJ) [Assisted Reproduction Reference]. However, these principles do not allow this Court to set aside the established framework that guides the interpretation of the Constitution Act, 1867, by setting out additional requirements that should be met in order for federal legislation to be declared valid.
[27] Lastly, the courts have reiterated time and time again that the merits of a law, its wisdom from a public policy perspective or its effectiveness have no impact on its constitutional validity with regard to the division of powers: Reference re Firearms Act (Can.), 2000 SCC 31 at paragraphs 18 and 57, [2000] 1 SCR 783; Securities Reference, at paragraph 90; Comeau, at paragraph 83; Murray-Hall, at paragraph 44.
(2) Pith and Substance of the Impugned Provisions
[28] In a pith and substance analysis, the impugned provisions must be examined first: Firearms Registry case, at paragraph 30; Murray-Hall, at paragraph 30. Englobe is challenging the constitutional validity of section 3.1 of the Act and section 2.1 of the Regulations. Englobe is also challenging the definitions of “fertilizer” and “supplement”, found in section 2 of the Act, and the regulatory authority conferred on the Governor in Council by section 5. However, Englobe’s challenge with respect to the division of powers essentially concerns section 3.1 of the Act.
[29] In its memorandum, Englobe argues that the pith and substance of the impugned provisions is [translation] “the strict regulation of the manufacture and sale, at the local level, of composts, soils and other materials derived from the recycling of safe organic waste”. The Agency’s memorandum proposes that the Act as a whole may be characterized as [translation] “controlling the components, labelling and safety of fertilizers and supplements”. The parties did not address this issue at the hearing.
[30] The pith and substance of section 3.1 of the Act can be described as a prohibition of fertilizers and supplements that present a risk of harm to human, animal or plant health or the environment. This description flows from the text of the provision, its comparison with the other provisions of the Act, its legal effect and the extrinsic evidence that was filed in the record. It is true that this description is close to the wording of section 3.1, but this is inevitable given the generality of the terms that the latter uses.
[31] Let us start by reviewing the wording of section 3.1. It deals with fertilizers and supplements, which are the two main products regulated by the Act. Unlike other provisions of the Act that require a product to be registered or evaluated or a licence to be obtained before it is manufactured or marketed, section 3.1 sets out a prohibition that applies at any time, whether or not the product is subject to a registration requirement. Although it is part of a regulatory regime, this provision is prohibitive in nature. It prohibits various actions involving a fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment. That risk is part of the pith and substance of section 3.1, since it defines not only the scope of the prohibition but also its rationale.
[32] Englobe relies on the fact that section 4 of the Act contains a more specific prohibition, aimed at fertilizers and supplements that contain “destructive ingredients” or that are “harmful to plant growth”. According to Englobe, this demonstrates, a contrario, that section 3.1 addresses substances that are safe. Such an argument is difficult to understand. It cannot be asserted that, contrary to its wording, section 3.1 is intended to prohibit safe substances. In reality, nothing prevents Parliament from providing for different prohibitions that address broader or narrower ranges of conduct and higher or lower levels of risk or harm.
[33] The extrinsic evidence supports the characterization proposed above. During the debates concerning the bill that included section 3.1, the Minister of Agriculture and Agri-Food, Gerry Ritz, stated that the new provisions of the Act were intended, among other things, to ensure the safety of fertilizers and supplements (House of Commons Debates, March 3, 2014, at 3397):
This legislation would strengthen the safety of agricultural products, the first link in the food chain, while reducing the regulatory burden for industry and promoting trade in agricultural products.
[34] To the extent that the amendments made to the Act in 2015 and the Regulations in 2020 are part of the same regulatory review process, the Regulatory Impact Analysis Statement [RIAS] that preceded the adoption of the amendments to the Regulations (Canada Gazette, Part I, vol 152, no 49, December 8, 2018) may shed some light on the purpose of section 3.1 of the Act. The following excerpts from the RIAS show that, in making the Regulations, the Governor in Council considered the risks that might arise from the use of certain fertilizers, regardless of the precise context of their use:
The increasing interest in recycling by-products, industrial and/or organic wastes for application as fertilizers and supplements (e.g. soil amendments) can result in benefits through the return of nutrients to soil and the subsequent improvement of its physical condition. However, the use of recycled by-products also presents new and emerging risks due to the potential presence of biological and chemical contaminants. Therefore, the benefits must be carefully balanced against any potential safety hazards associated with these materials. Given that concerns over human, animal or plant health or the environment can be effectively alleviated with adequate treatment, careful consideration of the sources of waste-derived materials and the level of processing and treatment used during their manufacture is essential in determining the risks.
. . .
Finally, the level of regulatory scrutiny varies depending on the use pattern; the majority of fertilizers intended for specialty markets (including nurseries, commercial greenhouse operations, golf courses as well as home and garden products) are exempt from registration. This is rooted in historical precedent that stems from efficacy (i.e. effectiveness) and product performance considerations (e.g. the potential for greater economic losses in agricultural settings than with specialty uses) rather than actual risks. As efficacy is no longer regulated by the CFIA, the Regulations need to be amended to reflect the focus on safety. Despite the smaller volumes of products used in specialty versus agricultural applications, the exposure scenarios are not lacking potential risks.
[35] In the section of its memorandum that deals with the pith and substance of the impugned provisions, Englobe makes a range of submissions regarding the Act being either overbroad or not broad enough, the alleged safety of the products it covers and the change in perspective resulting from the amendments made to the Act in 2015. Englobe did not press these submissions at the hearing. They are not relevant to determining the pith and substance of the impugned provisions. Rather, a disagreement as to the desired scope of the prohibition is a challenge to the merits or effectiveness of the Act, which is irrelevant to the analysis. Englobe also did not present any evidence that, in enacting section 3.1, Parliament was pursuing a hidden agenda within the meaning of R v Morgentaler, [1993] 3 SCR 463.
(3) Classification Under the Concurrent Jurisdiction Over Agriculture
[36] The pith and substance of section 3.1 of the Act is therefore the prohibition of fertilizers and supplements that present a risk of harm to human, animal or plant health or the environment. Characterized in this way, section 3.1 falls within the concurrent jurisdiction over agriculture set out in section 95 of the Constitution Act, 1867, which reads as follows:
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
[traduction] 95. La législature de chaque province peut légiférer en matière d’agriculture et d’immigration dans cette province, et le Parlement du Canada peut légiférer en matière d’agriculture et d’immigration dans toutes les provinces ou dans chacune d’elles. Toutefois, les lois édictées en pareille matière par une législature n’ont d’effet, dans les limites de la province et à son égard, que dans la mesure où elles ne sont pas incompatibles avec les lois du Parlement du Canada.
[37] (It should be noted here that only the English version of the Constitution Act, 1867 has official status. The French translation given here is from the Final Report of the French Constitutional Drafting Committee, which is online at https://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/).
[38] At the outset, it is useful to clarify the scope of the concurrent jurisdiction over agriculture. The basic premise of Englobe’s submissions is that this head of power is narrow in scope and must be interpreted in a restrictive manner. It is true that, according to long-standing case law, the marketing of agricultural products is considered to fall under other heads of power. Some authors have criticized this case law and argue that the scope of section 95 has been reduced to little: Neil Finkelstein, Laskin’s Canadian Constitutional Law, 5th ed (Toronto: Carswell, 1986) at 500–501; Robert S Fuller, Donald E Buckingham & Robert W Scriven, Agriculture Law in Canada, 2nd ed (Toronto: LexisNexis, 2019) at 192–194. In addition, in many cases, provincial laws regarding agriculture may be classified under provincial jurisdiction over “property and civil rights” or “matters of a merely local or private nature” as much as under the concurrent jurisdiction over agriculture: see, for example, Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 at paragraph 22, [2010] 2 SCR 536. That may explain why the courts have never attempted to precisely define the scope of the latter jurisdiction. In any event, nothing in the foregoing justifies setting aside the principle that each head of power should receive a generous and evolutionary interpretation.
[39] Section 3.1 of the Act falls under the concurrent jurisdiction over agriculture because fertilizers are inseparable from agriculture. Section 2 of the Act defines a fertilizer as a plant nutrient and a supplement as a substance that aids plant growth. The growth of plants is central to agriculture. Thus, if a law pertains to fertilizers, it necessarily pertains to agriculture. In addition, it stands to reason that, relying on section 95 of the Constitution Act, 1867, Parliament can enact laws that deal with substances used for agricultural purposes in order to prevent soil contamination.
[40] The Ontario Court of Appeal recognized this inseparable link between fertilizers and agriculture in a case involving a challenge to the constitutional validity of an earlier version of the Act: R v Bradford Fertilizer Co Ltd (1971), 22 DLR (3d) 617 [Bradford Fertilizer]. The Court stated as follows at page 621:
In my opinion it would be impossible to discuss intelligently the application or use of fertilizer and disregard the connotation of agriculture. The most important aspect of the subject would be missing.
I conclude, both from the provisions of the Act and the Regulations, and from the common understanding of “agriculture” and the place of fertilizer in it, that the Fertilizers Act is a “law in relation to agriculture”. As such, it is a law that s. 95 of the B.N.A. Act, 1867 empowers Parliament to pass.
[41] It is true that the Court of Appeal focused on the registration requirements that were then central to the Act, whereas section 3.1 sets out a prohibition. The Court of Appeal’s statements are still relevant to this case since the focus is on the products at issue, namely, fertilizers and supplements, rather than on the difference between their registration and prohibition.
(a) Fertilizers as “Articles of Trade”?
[42] To avoid this conclusion, Englobe argues that section 3.1 is not related to agriculture but to the regulation of fertilizers considered as “articles of trade”. Englobe relies on well‑established case law, according to which regulation of agricultural product marketing falls under neither the general component of the federal power over “the regulation of trade and commerce” in subsection 91(2) of the Constitution Act, 1867, nor the concurrent jurisdiction over agriculture in section 95: see, for example, R v Eastern Terminal Elevator Co, [1925] SCR 434; Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Limited, [1933] AC 168 (PC) [Crystal Dairy]; Reference re Natural Products Marketing Act, 1934, [1936] SCR 398, [1937] AC 377 (PC); Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] SCR 1, [1951] AC 179 (PC) [the Margarine Reference]. Englobe adds that the prohibition in section 3.1 of the Act targets fertilizer manufacturers and not farmers.
[43] Such reasoning cannot stand. The prohibition set out in section 3.1 bears no resemblance to the marketing schemes discussed in the cases cited above. The Act does not seek to regulate prices, set quotas or centralize the marketing of fertilizers. The fertilizers covered by section 3.1 play a role in agriculture itself, given their role in plant growth.
[44] There is no precedent that supports extending the principles related to the marketing of agricultural products to operations that occur at an earlier point in production. On the contrary, the Ontario Court of Appeal rejected a similar argument in Bradford Fertilizer. After reviewing the Supreme Court and Privy Council decisions cited above, the Court of Appeal stated at page 624:
. . . the Fertilizers Act was passed to benefit agriculture, by requiring the very essential plant nutrients and soil conditioners used in agriculture to be of prescribed standards, safe to use, and so described and labelled as to enable purchasers to know what they are getting and how to use it. The object of the Act is not to “regulate the fertilizer trade”, although some regulation of that trade and its manufacturers and vendors is an obvious effect of the Act.
[45] By way of comparison, the Privy Council held that Parliament could, under its jurisdiction over “bankruptcy and insolvency”, pass legislation regarding arrangements between farmers and their creditors, even if this legislation applied prior to the bankruptcy and was in fact intended to prevent bankruptcy: British Columbia (Attorney General) v Canada (Attorney General), [1937] AC 391 (PC) [Re Farmers’ Creditors Arrangement Act].
[46] Englobe also relies on Saskatchewan (Attorney General) v Canada (Attorney General), [1949] AC 110 (PC), in which the Privy Council declared provincial legislation regarding loans to farmers to be invalid. In that case, however, the legislation was invalid because its pith and substance fell under the federal jurisdiction over interest, which prevented its classification under the provincial jurisdiction over property and civil rights or the concurrent jurisdiction over agriculture. No inference can be drawn from this as to the scope of the latter jurisdiction.
[47] Englobe is presenting its arguments from a slightly different angle by arguing that section 3.1 of the Act is beyond the concurrent jurisdiction conferred by section 95 because it targets fertilizer manufacturers and not farmers. Thus, it would not “interfere with the agricultural operations of the farmers”, as the Privy Council said in Crystal Dairy at page 174. Such a contention does not withstand analysis. Section 3.1 most certainly affects farmers’ operations by prohibiting certain types of fertilizers from being sold to them. Englobe counters that farmers can circumvent this prohibition by obtaining such fertilizers for free (which it asserts would often be the case with municipal biosolids) or by spreading manure (although manure is not exempt from the application of section 3.1 of the Act and section 2.1 of the Regulations; see paragraph 3(1)(a) of the Regulations). However, the fact that a law is ineffective or can be circumvented has no impact on its constitutional validity; instead, these are considerations relating to the merits of the law: see the decisions cited at paragraph [27].
(b) Overbreadth and the Classification Under Agriculture
[48] Englobe also argues that section 3.1 of the Act falls outside the scope of the concurrent jurisdiction over agriculture since it covers fertilizers that are not used for agricultural purposes. Specifically, the products it manufactures are intended for residential uses (e.g., for a lawn or garden), municipal uses (e.g., for a park) or commercial uses (e.g., for a golf course). Until 2020, the Regulations designated these fertilizers as “special fertilizers”. The excerpts from the RIAS cited above instead used the expressions “specialty uses” and “specialty markets”.
[49] According to Englobe, section 95 of the Constitution Act, 1867 applies only to “agricultural operations” or “agricultural producers”, as those terms are commonly understood, and excludes “specialty” uses. Although Englobe did not provide further clarification, it can be inferred that agriculture would include only commercial activities aimed at food production on farms or in fields.
[50] However, nothing warrants such restrictions on the common meaning of the word agriculture as used in section 95 of the Constitution Act, 1867. As explained above, the heads of power listed in sections 91 to 95 of the Constitution Act, 1867 must be given a broad and evolving interpretation. They must not be confined to their ideal type, most common or most well-known meaning: Re Farmers’ Creditors Arrangement Act at 402–403; Same-Sex Marriage Reference at paragraphs 22 to 29. Moreover, the words used in these provisions should not be given a narrower meaning than their common meaning.
[51] Dictionary definitions give us an idea of the meaning commonly associated with the word “agriculture”. The Académie française defines agriculture as an [translation] “activity whose purpose is to exploit the land by growing plants and raising animals”. According to Merriam-Webster, it is “the science or occupation of cultivating the soil, producing crops, and raising livestock”. The Oxford English Dictionary refers to “the practice of growing crops, rearing livestock, and producing animal products”. According to the Petit Larousse, the word “agriculture” denotes an [translation] “economic activity with the purpose of transforming and exploiting the natural environment to obtain plant and animal products that are useful to humans, esp. those intended for food”. In a more pithy formulation, the Multi-Dictionnaire de la langue française simply renders agriculture as [translation] “the art of cultivating the land”.
[52] With the exception of the Petit Larousse, none of the above definitions confine agriculture to a commercial or economic activity. Hence, nothing justifies excluding a person who grows vegetables for personal consumption or a group of neighbours who tend to a community garden from the scope of the concurrent jurisdiction over agriculture. In addition, none of these definitions requires that the agricultural products be intended for food; we need only think of the cultivation of cotton or tobacco. It follows that agriculture, in the common sense of the word, may include the production of plants for ornamental or decorative purposes.
[53] The few decisions that have applied section 95 support a broad interpretation, rather than the one proposed by Englobe. The Alberta Court of Appeal has held that the Animal Pedigree Act, RSC 1985, c 8 (4th Supp), falls within the concurrent jurisdiction over agriculture, in the context of a dispute over the breeding of purebred dogs: R v Neuman, 1998 ABCA 261. An earlier version of that law was held to be valid in R v Davenport, [1928] 2 DLR 852 (Alberta CA), which dealt with the breeding of racehorses. It can be assumed that the forms of agriculture in question did not involve food production. In the latter, at page 854, the Court also rejected the claim that agriculture was restricted to “the cultivation of the fields”.
[54] In any case, even if a narrow definition of agriculture were adopted, one that excluded certain so-called “specialty” uses, this would not affect the validity of section 3.1 of the Act, since its pith and substance—the prohibition of certain fertilizers—is related to agriculture. The fact that some of these fertilizers can be used for non-agricultural purposes would constitute only an incidental effect. In fact, the Act covers all fertilizers and supplements, regardless of the context of their use. However, the incidental effects of the impugned provision on the jurisdictions of the other level of government do not change its pith and substance and are not relevant to the analysis: A-G Ontario v Barfried Enterprises Ltd, [1963] SCR 570 at 577–580; Global Securities Corp v British Columbia (Securities Commission), 2000 SCC 21 at paragraph 23, [2000] 1 SCR 494; Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 SCR 146; Canadian Western Bank, at paragraphs 30–31; Impact Assessment Reference, at paragraph 113.
[55] Adopting a narrow interpretation of what constitutes “agriculture” for the purposes of section 95 of the Constitution Act, 1867 would also give rise to considerable practical problems. It would be difficult to determine whether laws enacted under this head of power would apply to those who do not fit the ideal type of the commercial farmer engaged in food production. This may include those who tend to community gardens, those who run hobby farms or farmers who produce materials for biofuels. In addition, some so-called “specialty” uses may be for food production. For example, one of Englobe’s products is called “vegetable garden soil”. It may well be that such a use would raise concerns about not only the environment but also human health.
[56] Lastly, Englobe claims that section 3.1 of the Act is unconstitutional because it covers a wide range of products that are generally recognized as safe. Such an argument is fallacious. It is the risk of harm that triggers the prohibition in section 3.1. The evidentiary record shows the scientific community’s concerns regarding the effects of high concentrations of nickel, molybdenum and selenium. Whether the maximum concentrations set by the Agency are too low or too high or whether the underlying philosophy is liberal or conservative are questions related to the wisdom of the Act that have no impact on its constitutional validity. In other words, since fertilizers fall under the concurrent jurisdiction over agriculture, Parliament is free to determine the maximum concentrations of certain substances or to delegate this power to a subordinate body.
(c) “From Time to Time”
[57] Relying on an article by Jesse Hartery, “La compétence concurrente en matière d’immigration : rendre aux provinces canadiennes ce qu’elles ont perdu”, (2018) 63 McGill LJ 487, Englobe argues that section 95 of the Constitution Act, 1867 should be int