R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 SCR 213

minicounsel

The Attorney General of Canada, acting for and

on behalf of Her Majesty The Queen Appellant

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 110 (SCC), [1992] 1 S.C.R. 3; R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401; Reference re Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1; RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463; Whitbread v. Walley, 1990 33 (SCC), [1990] 3 S.C.R. 1273; Reference re Anti‑Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373; Fowler v. The Queen, 1980 201 (SCC), [1980] 2 S.C.R. 213; Attorney‑General for Ontario v. Hamilton Street Railway Co., 1903 121 (UK JCPC), [1903] A.C. 524; Proprietary Articles Trade Association v. Attorney‑General for Canada, 1931 385 (UK JCPC), [1931] A.C. 310; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; R. v. Rube, 1992 34 (SCC), [1992] 3 S.C.R. 159; Scowby v. Glendinning, 1986 30 (SCC), [1986] 2 S.C.R. 226; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, 1959 42 (SCC), [1959] S.C.R. 497; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031; Standard Sausage Co. v. Lee, 1933 282 (BC CA), [1933] 4 D.L.R. 501; Reference re Upper Churchill Water Rights Reversion Act, 1984 17 (SCC), [1984] 1 S.C.R. 297; R. v. Cosman’s Furniture (1972) Ltd. (1976), 1976 1279 (MB CA), 32 C.C.C. (2d) 345; Morgentaler v. The Queen, 1975 8 (SCC), [1976] 1 S.C.R. 616; R. v. Wetmore, 1983 29 (SCC), [1983] 2 S.C.R. 284; R. v. Furtney, 1991 30 (SCC), [1991] 3 S.C.R. 89; Attorney‑General for British Columbia v. Attorney‑General for Canada, 1937 365 (UK JCPC), [1937] A.C. 368; Boggs v. The Queen, 1981 39 (SCC), [1981] 1 S.C.R. 49; Schneider v. The Queen, 1982 26 (SCC), [1982] 2 S.C.R. 112; Reference re Farm Products Marketing Act, 1957 1 (SCC), [1957] S.C.R. 198; Nova Scotia Board of Censors v. McNeil, 1978 6 (SCC), [1978] 2 S.C.R. 662.

By Lamer C.J. and Iacobucci J. (dissenting)

R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401; Reference re Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1; Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3; R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299; Reference re Anti‑Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031; RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; Scowby v. Glendinning, 1986 30 (SCC), [1986] 2 S.C.R. 226; Boggs v. The Queen, 1981 39 (SCC), [1981] 1 S.C.R. 49; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 190 (SCC), [1980] 1 S.C.R. 914; R. v. Wetmore, 1983 29 (SCC), [1983] 2 S.C.R. 284; Knox Contracting Ltd. v. Canada, 1990 71 (SCC), [1990] 2 S.C.R. 338; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463; R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., 1990 137 (SCC), [1990] 1 S.C.R. 627; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, 1959 42 (SCC), [1959] S.C.R. 497; R. v. Furtney, 1991 30 (SCC), [1991] 3 S.C.R. 89; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; Attorney General of Nova Scotia v. Attorney General of Canada, 1950 26 (SCC), [1951] S.C.R. 31; General Motors of Canada Ltd. v. City National Leasing, 1989 133 (SCC), [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

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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.

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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.

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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.

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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.

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APPEAL from a judgment of the Quebec Court of Appeal, 1995 5226 (QC CA), [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

1The 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.

2We 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.

Facts

3The 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]

1From 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.);

2On 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 5226 (QC CA), [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.

Relevant Statutory and Constitutional Provisions

5 Chlorobiphenyls Interim Order, P.C. 1989-296

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;

(1) In this Act,

“environment” means the components of the Earth and includes

(a) air, land and water,

(b) all layers of the atmosphere,

(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;

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

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.

(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;

(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).

(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 Substances in Schedule I, that the substance be added to that List under section 33.

(6) An interim order

(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and

(b) shall be published in the Canada Gazette within twenty‑three days after it is approved under subsection (3).

(7) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, was not published in the Canada Gazette in both official languages unless it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the order to the notice of those persons likely to be affected by it.

(8) An interim order ceases to have effect when a regulation referred to in subsection (5) is made or two years after the order was made, whichever is the earlier.

Constitution Act, 1867

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, --
The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

Judicial History

A. Court of Québec

6 In Judge Babin’s view, the fundamental question was whether Parliament had the power to regulate the emission of substances harmful to the environment when that environment was situated within a province. Applying the criteria set out by this Court in R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401, to the Act, he held that the scope of the legislation was unacceptably broad, largely owing to the sweeping definitions given to “environment” and to “toxic”. The subject matter of the Act did not exhibit the “singleness, distinctiveness and indivisibility” required by Crown Zellerbach. Since a substance could be labelled “toxic” without even necessarily having a harmful effect on human health, he held that the Act was too broad to be sustained under the peace, order and good government power.

7 For similar reasons, he held that it could not be upheld as criminal law either. Since risk to human health was not necessary for the federal government to move in and impose regulations, he ruled that Part II of the Act was legislation aimed primarily at protecting the environment, not at protecting health. Applying the Reference re Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1 (hereinafter the “Margarine Reference”), he held that the impugned provisions were essentially regulatory, with some [translation] “provisions of a criminal nature”, and that they entrenched on areas of jurisdiction reserved to the provinces. He declared s. 6(a) of the Interim Order ultra vires and struck it down.

B. Quebec Superior Court

8 Trottier J. found that the definitions of “environment” and “toxic” in the Act made it clear that the legislation was aimed at regulating toxic substances generally, not just cases where there might be effects spreading beyond the borders of a single province. He examined Crown Zellerbach, supra, and Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, and agreed with Judge Babin that the peace, order and good government power did not justify the Act. In order for the emission of toxic substances anywhere in the environment to qualify as a matter of “national concern” within Crown Zellerbach, he held that the provinces would have to be unable to deal with this matter themselves, that it would have to concern Canada as a whole, and that incapacity on the part of one province would have to have real consequences outside the borders of that province. He did not feel these criteria were met in this case, and so he could not support the Act under the peace, order and good government power.

9 He also agreed that the Act was not supportable as criminal law. Examining the provisions at issue, particularly s. 34, he concluded that their aim was truly to regulate, not to prohibit, and that they were accordingly not criminal law within the meaning of R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299. Since the Act could not be supported under either head of jurisdiction, he dismissed the appeal.

C. Quebec Court of Appeal

10 Tourigny J.A. (Nichols and Chamberland JJ.A. concurring) characterized the impugned provisions as being in pith and substance aimed at protecting the environment. Applying Crown Zellerbach, supra, she held that the broad provisions of the Act lacked the “singleness, distinctiveness and indivisibility” necessary for a matter of national concern. Nor could the Act be upheld under the emergency doctrine of the peace, order and good government power. It was not a temporary measure, and the subject matter had not been proved to be “urgent” within the meaning of the Reference re Anti-Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373.

11 Tourigny J.A. also held that the provisions of the Act greatly exceeded the legitimate domain of criminal law, even though they took the form of a set of prohibitions backed by penalties. She could not uphold the legislation under peace, order and good government or under s. 91(27), and so she too dismissed the appeal.

Issues

12 On December 21, 1995, the following constitutional question was stated:

Do s. 6(a) of the Chlorobiphenyls Interim Order, P.C. 1989-296, and the enabling legislative provisions, ss. 34 and 35 of the Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in whole or in part within the jurisdiction of the Parliament of Canada to make laws for the peace, order and good government of Canada pursuant to s. 91 of the Constitution Act, 1867 or its criminal law jurisdiction under s. 91(27) of the Constitution Act, 1867 or otherwise fall within its jurisdiction?

Analysis

13 While the constitutional question mentions the Interim Order and its enabling provisions separately, there can be no doubt that the question of the constitutional validity of the Interim Order will be raised only if its enabling provisions themselves are found to be constitutional. That is, if ss. 34 and 35 of the Act are found to be ultra vires Parliament, it will then become purely theoretical to analyse the constitutionality of the Interim Order. See P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at p. 14-7, and D. C. Holland and J. P. McGowan, Delegated Legislation in Canada (1989), at pp. 170-71. Accordingly, these reasons will focus on the constitutionality of the enabling provisions, ss. 34 and 35.

14 In order to address the issues raised by this appeal, it is necessary to understand the legislative context of the impugned provisions. We will therefore begin by briefly setting out this context.

A. The Legislative Structure of the Act

15 The Canadian Environmental Protection Act was adopted by Parliament in 1988. It consolidated and replaced several other laws dealing with various kinds of environmental protection. Part II of the Act, which contains ss. 34 and 35, is called “Toxic Substances” and deals with the identification and regulation of substances which could potentially pose a risk to the environment and/or to human health. 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 broadly 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”. “Harmful effect” and “danger” are not defined.

16 The Act instructs the Ministers of the Environment and Health to compile and maintain four lists: the Domestic Substances List (DSL), the Non-Domestic Substances List (NDSL), the Priority Substances List (PSL) and the List of Toxic Substances (LTS). The DSL includes all substances in use in Canada since 1986 (some 21,700 substances as of January 1991). The NDSL contains all other substances. At present, the NDSL list includes over 41,000 substances. See E. A. Fitzgerald, “The Constitutionality of Toxic Substances Regulation Under the Canadian Environmental Protection Act” (1996), 30 U.B.C. L. Rev. 55, at p. 70. There is a blanket restriction on importing NDSL substances into Canada until they are approved (s. 26).

17 Sections 12 and 13 of the Act require the Ministers to compile a “Priority Substances List” specifying those substances to which priority should be given in determining whether or not they should be placed on the List of Toxic Substances. Under s. 15, either the Minister of the Environment or the Minister of Health may conduct investigations with a view to determining whether a given substance is toxic. The Ministers may examine, inter alia, the nature of the substance in question, its effects on natural biological processes, the extent to which the substance will persist in the environment, its ability to bio-accumulate, methods of controlling it, and methods of reducing the amount of it used. Section 16 provides that the Minister of the Environment can require private citizens to provide him or her with information about, or samples of, substances which the Minister suspects may be toxic and under s. 18, the Minister can order that persons with information about a substance which might be toxic provide that information to him or her.

18 Once a priority listed substance is found to be toxic within the meaning of s. 11, the Ministers may recommend adding it to the List of Toxic Substances. After a federal-provincial advisory committee (established under s. 6) has been given an opportunity to provide its advice, the Governor in Council may add the substance to the list and bring it under the regulatory control of s. 34.

19 Section 34 provides for the regulation of substances on the List of Toxic Substances. The Governor in Council is given extensive powers to prescribe regulations dealing with every conceivable aspect of the listed substance, including: the quantity or concentration in which it can be released; the commercial or manufacturing activity in the course of which it can be released; the quantity of that substance that can be manufactured, imported, owned, sold, or used -- including total prohibitions on its manufacture, importation, ownership, use or sale -- and likewise the manner in and purposes for which it can be manufactured, imported, processed, used, offered for sale or sold; the manner and conditions in which the substance may be advertised, stored, displayed, handled, transported or offered for transport; the manner, conditions, places and method of disposal of the substance; the maintenance of books and records in respect of the substance; and the extent to which reports must be made to the Minister regarding the monitoring of the substance. Section 34(1)(x) allows the Governor in Council to regulate “any other matter necessary to carry out the purposes of this Part”.

20 Where a substance is not on the List of Toxic Substances (or where it is listed, but the Ministers believe that it is not adequately regulated), and where the Ministers believe that immediate action is necessary in respect of that substance, s. 35 allows for the making of “interim orders” without going through the usual procedure. These orders can 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. Approval can be given only if, inter alia, the Ministers have offered to consult with the governments of any affected provinces to see whether they are prepared to take sufficient action to deal with the threat posed by the substance (s. 35(4)). According to s. 35(8), interim orders expire after two years, even if such approval is granted.

21 As stated above, this appeal arose as a result of an interim order made in 1989 by the then Minister of the Environment, the Honourable Lucien Bouchard. It restricted the emission of chlorobiphenyls (“PCBs”) to 1 gram per day. The respondent 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.

22 Finally, the Act prescribes a number of civil and criminal penalties. Section 113(f), for example, creates an offence of contravening regulations made under s. 34. The punishment ranges from a maximum $300,000 fine or six months imprisonment (or both) on summary conviction to a maximum $1 million fine or three years imprisonment (or both) on indictment. A defence of due diligence is allowed for all offences under the Act except those under s. 114 (knowingly providing false or misleading information), s. 115(1)(a) (intentionally or recklessly causing an environmental disaster) or s. 115(1)(b) (showing wanton or reckless disregard for the lives or safety of other persons). These offences require a higher standard of moral culpability.

B. The Pith and Substance of the Legislation

23 The manner of analysing matters involving division of powers is well established: see Hogg, supra, at p. 15-6. The law in question must first be characterized in relation to its “pith and substance”, that is, its dominant or most important characteristic. One must then see if the law, seen in this light, can be successfully assigned to one of the government’s heads of legislative power.

24 In this case, the Quebec Court of Appeal held that, although one of the effects of Part II of the Act is to protect human life and health, its pith and substance lies in the protection of the environment (at p. 405):

[translation] It can be seen from a careful examination of the provisions at issue that Parliament has chosen to regulate the release of toxic substances into the environment for the stated purpose of protecting human life and health. There is of course no question that one of the effects of the adopted measures is to promote the protection of human life and health. However, it is my view that the pith and substance of both the Chlorobiphenyls Interim Order and the enabling provisions pursuant to which it was made is the protection of the environment.

25 The respondent Hydro-Québec and the mis en cause the Attorney General of Quebec agree with this characterization and suggest that the true goal of the legislation is the regulation of environmental protection, writ large. The appellant, on the other hand, argues that the true object of Part II of the Act is simply the control of pollution caused by toxic substances (like PCBs), which are capable of being dispersed into the environment and whose level of toxicity is such as to pose a serious risk of harm to the environment and to human health and life. Several interveners support this claim, submitting that the impugned provisions seek simply to create national standards for the control of toxic substances. They cite in this regard various government ministry and legislative committee reports: see, e.g., Environment Canada and Health and Welfare Canada, Final Report of the Environmental Contaminants Act Amendments Consultative Committee (1986); Environment Canada, The Right to a Healthy Environment: An Overview of the Proposed Environmental Protection Act (1987).

26 In our view, the dominant characteristic of the impugned legislation is apparent from its plain text. Part II of the Act seeks, at first glance, to protect the environment, human health and life from harm owing to the release of toxic substances. As noted above, it seeks to do so through extensive -- indeed, comprehensive -- regulation of these substances and the ways in which they may come into contact with the environment. That being said, we believe it is also necessary to consider the sweeping definitions given by the Act to “environment” and “toxic substance”. Section 3 defines the “environment” as follows:

(1) In this Act,

“environment” means the components of the Earth and includes

(a) air, land and water,

(b) all layers of the atmosphere,

(d) the interacting natural systems that include components referred to in paragraphs (a) to (c);

27 Even broader is the definition given to “substance”:

“substance” means any distinguishable kind of organic or inorganic matter, whether animate or inanimate, and includes

(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,

(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;

28 The Act is not, as was suggested by the appellant, aimed specifically at chemical substances; rather, it purports to cover “any distinguishable kind of organic or inorganic matter, whether animate or inanimate”. Section 11 determines when a substance will be “toxic”, and therefore subject to federal regulation:

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

29 Paragraphs 11(a) through (c) are not cumulative. It will suffice to bring a substance under federal regulatory control that it pose a risk to human life or health, part of the environment upon which human life depends, or the environment itself.

30 In this regard, we note that we cannot, with respect, agree with our colleague, La Forest J., that the criteria found in s. 11 are simply a “drafting tool” or that to speak of s. 11 as a definition is “misleading”. The purpose of this section is to delineate from the category of “substances” (as defined by s. 3) those particular substances which qualify for regulation under ss. 34 and 35. It does so by specifying that “toxic” substances are, for the purposes of Part II, those which are capable of posing one of the threats listed above. This seems to us a clear statement of Parliament’s intentions in this area. As was held in Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, at p. 1050:

[T]he first task of a court construing a statutory provision is to consider the meaning of its words in the context of the statute as a whole. If the meaning of the words when they are considered in this context is clear, there is no need for further interpretation. The basis for this general rule is that when such a plain meaning can be identified this meaning can ordinarily be said to reflect the legislature’s intention.

31 Nothing in the Act suggests that “toxic” is to be defined by any criteria other than those given in s. 11. Moreover, no special definition is given to the terms “harmful effect” and “danger”. It is, in our view, accordingly clear from the wording of the legislation that “toxicity” is intended to be conditional upon meeting the criteria set out in ss. 3 and 11(a) to (c). If a substance (which can be essentially anything) poses or may pose a risk to human life or health, or to the environment upon which human life depends, or to any aspect of the environment itself, it qualifies as toxic according to the Act and may be made the subject of comprehensive federal regulation.

32 Nor are we convinced that the federal-provincial consultative process contemplated in s. 35(4) of the Act has the effect of changing the character of the impugned provisions. Although we understand why Parliament might wish to seek the opinion of provincial legislatures before enacting regulations which would affect areas under their supervision, nothing in the Act requires that this process be anything other than consultative. That is, once having consulted affected provincial governments, Parliament is left free to pass whatever regulations it sees fit in order to address the threat posed by substances qualifying as “toxic”.

33 In light of these factors, we believe the pith and substance of Part II of the 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. That is, the impugned provisions are in pith and substance aimed at protecting the environment and human life and health from any and all harmful substances by regulating these substances. It remains to be seen whether this can be justified under any of the heads of power listed in s. 91 of the Constitution Act, 1867. In that connection, we will begin by considering s. 91(27), the criminal law power.

C. The Criminal Law Power

34 Parliament has been given broad and exclusive power to legislate in relation to criminal law by virtue of s. 91(27): RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; Scowby v. Glendinning, 1986 30 (SCC), [1986] 2 S.C.R. 226. This power has traditionally been construed generously. As La Forest J. noted in RJR-MacDonald, at p. 240, “[i]n developing a definition of the criminal law, this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity”.

35 Nevertheless, 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” (Scowby, at p. 237). As Rand J. stated in the Margarine Reference, supra, at pp. 49-50:

A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law....

36 These two criteria have been consistently applied: see e.g. Boggs v. The Queen, 1981 39 (SCC), [1981] 1 S.C.R. 49; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 190 (SCC), [1980] 1 S.C.R. 914; R. v. Wetmore, 1983 29 (SCC), [1983] 2 S.C.R. 284; Scowby, supra; RJR-MacDonald, supra; see also Knox Contracting Ltd. v. Canada, 1990 71 (SCC), [1990] 2 S.C.R. 338, at p. 348. Criminal law under s. 91(27) must attempt to achieve a criminal public purpose through the imposition of prohibitions and penalties. Colourable attempts to invade areas of provincial jurisdiction under the guise of criminal legislation will be declared ultra vires. As La Forest J. wrote in RJR-MacDonald, at p. 246:

The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil. If a given piece of federal legislation contains these features, and if that legislation is not otherwise a “colourable” intrusion upon provincial jurisdiction, then it is valid as criminal law.... [Emphasis added.]

37 These comments were made in the context of criminal legislation concerning health, but we see no reason why they should not be of general application as regards s. 91(27). See also R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463; R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984.

38 The next step is therefore to examine the impugned provisions and determine whether they meet these criteria. In our view, they fall short. While the protection of the environment is a legitimate public purpose which could support the enactment of criminal legislation, we believe the impugned provisions of the Act are more an attempt to regulate environmental pollution than to prohibit or proscribe it. As such, they extend beyond the purview of criminal law and cannot be justified under s. 91(27).

(i) A Legitimate Public Purpose

39 The appellant and several interveners urged us to uphold the provisions as related to health, one of the criminal public purposes recognized in the Margarine Reference, supra. In this regard, they cited numerous studies outlining the hazardous effects of PCBs, which were the subject of the Interim Order that gave rise to this litigation. See e.g. Canadian Council of Resource and Environment Ministers, The PCB Story (1986); Health and Welfare Canada, A Review of the Toxicology and Human Health Aspects of PCB’s (1978-1982) (1985). With respect, the toxicity of PCBs, while clearly important to the environment itself, is not directly relevant to this appeal, since what is at issue is not simply the Interim Order, but the enabling provisions under which that order was enacted. That is, the question is not whether PCBs pose a danger to human health, which it appears they clearly do, but whether the Act purports to grant federal regulatory power over substances which may not pose such a danger.

40 In our view, there is no question but that the Act does so. Section 11 provides as follows:

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

41 As noted above, these are not cumulative requirements. It is not necessary that a substance constitute a danger to human life or health for it to be labelled “toxic” and brought under federal control; under s. 11(a), it is enough that it may have a harmful effect on the environment. It is not even necessary to show that the aspect of the environment threatened be one upon which human life depends; this is made a separate category under s. 11(b), and should not, therefore, be read into s. 11(a). A substance which affected groundhogs, for example, but which had no effect on people could be labelled “toxic” under s. 11(a) and made subject to wholesale federal regulation.

42 By defining “toxic” in this way, Parliament has taken explicit steps to ensure that no risk to human life or health, direct or indirect, would have to be proven before regulatory control could be assumed over a given substance. As such, we cannot see how the provisions can be upheld as legislation relating to health. Their scope extends well beyond matters relating to human health into the realm of general ecological protection. Parliament’s clear intention was to allow for federal intervention where the environment itself was at risk, whether or not the substances concerned posed a threat to human health and whether or not the aspect of the environment affected was one on which human life depended. Having specifically excluded both direct and indirect danger to human health as preconditions for the application of these provisions, Parliament cannot now say that they were enacted in order to guard against such dangers.

43 To the extent that La Forest J. suggests that this legislation is supportable as relating to health, therefore, we must respectfully disagree. We agree with him, however, that the protection of the environment is itself a legitimate criminal public purpose, analogous to those cited in the Margarine Reference, supra. We would not add to his lucid reasoning on this point, save to state explicitly that this purpose does not rely on any of the other traditional purposes of criminal law (health, security, public order, etc.). To the extent that Parliament wishes to deter environmental pollution specifically by punishing it with appropriate penal sanctions, it is free to do so, without having to show that these sanctions are ultimately aimed at achieving one of the “traditional” aims of criminal law. The protection of the environment is itself a legitimate basis for criminal legislation.

44 However, we still do not feel that the impugned provisions qualify as criminal law under s. 91(27). While they have a legitimate criminal purpose, they fail to meet the other half of the Maragarine Reference test. The structure of Part II of the Act indicates that they are not intended to prohibit environmental pollution, but simply to regulate it. As we will now explain in further detail, they are not, therefore, criminal law: see Hauser, supra, at p. 999.

(ii) Prohibitions Backed by Penalties

45 Ascertaining whether a particular statute is prohibitive or regulatory in nature is often more of an art than a science. As Cory J. acknowledged in Knox Contracting, supra, what constitutes criminal law is often “easier to recognize than define” (p. 347). Some guidelines have, however, emerged from previous jurisprudence.

46 The fact that a statute contains a prohibition and a penalty does not necessarily mean that statute is criminal in nature. Regulatory statutes commonly prohibit violations of their provisions or regulations promulgated under them and provide penal sanctions to be applied if violations do, in fact, occur. Any regulatory statute that lacked such prohibitions and penalties would be meaningless. However, as La Forest J. himself recognized in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425, at pp. 508-17, and in R. v. McKinlay Transport Ltd., 1990 137 (SCC), [1990] 1 S.C.R. 627, at p. 650, the penalties that are provided in a regulatory context serve a “pragmatic” or “instrumental” purpose and do not transform the legislation into criminal law. (Also see Wetmore, supra, Scowby, supra, and Knox Contracting, supra.) In environmental law, as in competition law or income tax law, compliance cannot always be ensured by the usual regulatory enforcement techniques, such as periodic or unannounced inspections. Hence, in order to ensure that legal standards are being met, a strong deterrent, the threat of penal sanctions, is necessary. La Forest J. relied on this rationale in concluding that the penal sanctions contained in the Competition Act (in Thomson Newspapers) and the Income Tax Act (in McKinlay Transport) did not affect the characterization of those statutes as regulatory in nature for purposes of s. 8 of the Canadian Charter of Rights and Freedoms.

47 At the same time, however, a criminal law does not have to consist solely of blanket prohibitions. It may, as La Forest J. noted in RJR-MacDonald, supra, at pp. 263-64, “validly contain exemptions for certain conduct without losing its status as criminal law”. See also Lord’s Day Alliance of Canada v. Attorney General of British Columbia, 1959 42 (SCC), [1959] S.C.R. 497; Morgentaler, supra; R. v. Furtney, 1991 30 (SCC), [1991] 3 S.C.R. 89. These exemptions may have the effect of establishing “regulatory” schemes which confer a measure of discretionary authority without changing the character of the law, as was the case in RJR-MacDonald.

48 Determining when a piece of legislation has crossed the line from criminal to regulatory involves, in our view, considering the nature and extent of the regulation it creates, as well as the context within which it purports to apply. A scheme which is fundamentally regulatory, for example, will not be saved by calling it an “exemption”. As Professor Hogg suggests, supra, at p. 18-26, “the more elaborate [a] regulatory scheme, the more likely it is that the Court will classify the dispensation or exemption as being regulatory rather than criminal”. At the same time, the subject matter of the impugned law may indicate the appropriate approach to take in characterizing the law as criminal or regulatory.

49 Having examined the legislation at issue in this case, we have no doubt that it is essentially regulatory in nature, and therefore outside the scope of s. 91(27). In order to have an “exemption”, there must first be a prohibition in the legislation from which that exemption is derived. Thus, the Tobacco Products Control Act, S.C. 1988, c. 20, at issue in RJR-MacDonald, supra, contained broad prohibitions against the advertising and promotion of tobacco products in Canada. Section 4 of that Act provided that “[n]o person shall advertise any tobacco product offered for sale in Canada”. It also provided a labelling requirement in the form of a prohibition, stating in s. 9 that it was illegal to sell tobacco products without printed health warnings. Any exemptions from these general prohibitions were just that -- exceptions to a general rule.

50 Similarly, the Food and Drugs Act, R.S.C., 1985, c. F-27, upheld in Wetmore, supra, contains several prohibitions at the beginning of its Part I. It prohibits, inter alia, the advertising of any food, drug, cosmetic or device with respect to a prescribed list of diseases, disorders or abnormal physical states (s. 3); the selling of food or drug that is adulterated or prepared under unsanitary conditions (ss. 4 and 8); the labelling, packaging, selling or advertising of any food, drug or device in a manner that is false, misleading or deceptive (ss. 5(1), 9(1) and 20(1)); the distribution of any drug as a sample (s. 14); and the selling of any cosmetic that may cause injury to the health of the user or was prepared under unsanitary conditions (s. 16). There are also a number of prohibitions with respect to controlled drugs in Part III of the Act and restricted drugs in Part IV.

51 In the legislation at issue in this appeal, on the other hand, no such prohibitions appear. Section 34(1) of the Canadian Environmental Protection Act reads as follows:

(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,