Fiddling with the Constitutional Underpinning of CEPA’s Authority to Control Toxic Substances: A Bad Idea

By: Joseph F. Castrilli, CELA Counsel

Every now and then bad ideas emerge about how to manage the environment. In the 1960s and 1970s it was “oh, if we build the emissions stack taller it will better disperse the air pollution”. This “dilution is the solution to pollution” approach to environmental management did not exactly work out. Nor did the idea, during the same period, that mercury could be safely discharged by industry to bodies of water.

The past, however, does not have a monopoly on bad ideas. Nor are bad ideas restricted to misunderstanding and misapplying engineering and scientific principles. There can be legislative and governmental policy pratfalls that can be equally egregious and no less environmentally harmful.

One that seems potentially in the making right now is the notion currently being floated in Ottawa, certain provinces, and the petrochemical industry about whether to characterize plastic pollution as “non-toxic” but still control it under the authority of the Canadian Environmental Protection Act. As reported recently in the media, industry and some provinces think a “toxic” designation for plastics will give the substance a bad name with consumers and, therefore, maybe new “non-toxic substance” legislation is necessary. Ottawa recognizes that if the ecological hazards associated with plastics are to be regulated under CEPA they first need to be placed under the Act’s Schedule 1 List of Toxic Substances. However, because of the federal government’s sensitivity to industry’s concerns, it is also considering removing or changing the word “toxic” in CEPA as it finalizes imminently anticipated amendments to the law, even though past Parliamentary committees have not supported removing “toxic” from the Act.

This is playing Russian Roulette with the legal foundation of CEPA because removing or changing the word “toxic” runs the risk of undermining the constitutional basis of the statute as validly enacted under the criminal law power of the Constitution Act, 1867.

What is now Part 5 of CEPA, entitled “Controlling Toxic Substances”, was what the Supreme Court of Canada focused on in its 1997 decision in R. v. Hydro-Quebec when it upheld the Act as valid federal legislation for the control of toxic substances under the criminal law power of the Constitution.

Part of the basis for upholding CEPA as valid federal law was that it did not purport to control the universe of all substances that it investigated but only the few bad actors that met what is now the section 64 test under the Act for what is “toxic” (long-term harmful effect on the environment; danger to the environment on which life depends; or danger to human life or health) and that could be placed in Schedule 1 for the purpose of imposing controls. The Court’s concern was that otherwise CEPA could end up controlling all environmental pollutants and in so doing impinge on provincial constitutional authority over property and civil rights in the provinces and have a resulting adverse impact on federalism (i.e. the balance between federal and provincial powers). As Justice La Forest explained for the majority in Hydro-Quebec, for a federal statute to be upheld under the criminal law power it must have a valid criminal law purpose directed at an “evil” or “injurious effect upon the public”. Schedule 1 toxic substances are the “evil” which, if used in a manner contrary to the regulations, CEPA prohibits and penalizes.

Justice La Forest noted further that the Act applied to a limited number of substances; at the time of the decision 9 out of approximately 21,000 in commerce in Canada. Today that number has only risen to roughly 150 out of over 23,000. As Justice La Forest put it, the statute provides:

“…a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm. Specific targeting of toxic substances based on an individual assessment avoids resort to unnecessarily broad prohibitions and their impact on the exercise of provincial powers”.

Subsequent decisions of the Supreme Court of Canada in considering Hydro-Quebec in the context of other federal legislation seeking to shelter under the authority of the criminal law power have continued to underscore the need for such legislation to have a valid criminal law purpose; i.e., address an “evil” in order to be constitutionally valid. In the 2010 decision of the Court in Reference re Assisted Human Reproduction Act, the majority noted that in Hydro-Quebec the Court held that the Parliament of Canada had the power to address “the entry into the environment of certain toxic substances”. Similarly, in the 2020 Supreme Court of Canada judgment in Reference re Genetic Non-Discrimination Act both the majority and minority opinions of the Court referred approvingly to Hydro-Quebec as authority for the proposition that threats of harm to the environment or health, such as from toxic substances, are evils that may be properly targeted by Parliament relying on the criminal law power of the Constitution.

It is thus clear that any material deviation from this focus in future amendments to CEPA will be highly problematic. If the federal government purports to expand control to “non-toxic” substances under the statute, then it risks the constitutional underpinning that supports Part 5 of the Act. If it tries to call toxic substances by a benign-sounding name it may send the wrong message to the public and the courts. But if, after scientific assessment, it continues to legitimately treat plastic, or any other substance, as a substance that meets the criteria under section 64 for placement in Schedule 1, then it will be on firmer legal ground. Let us hope that the federal government is not seeking to plant its flag of legislative authority for controlling toxic substances under future CEPA amendments in ground made of quicksand.