Canadian+Pacific

//Ontario v. Canadian Pacific Ltd.//


 * Facts:** Canadian Pacific Limited (CP) conducted controlled burns of dry grass and weeds along its railway in Kenora, ON. The dark smoke emitted from the burns adversely affected the health and property of the residents nearby. CP was charged under s. 13(1)(//a//) of the //Environmental Protection Act// (EPA) for discharging a contaminant into the natural environment that was likely to have adverse effects.


 * Lower Court holdings:** The Provincial Offenses Court of Ontario acquitted CP on the basis that its defence of due diligence raised a reasonable doubt. The acquittal was overturned by the Ontario Court of Justice. CP made two constitutional arguments at the Court of Appeal, one of interjurisdictional immunity and that s. 13(1)(//a//) violates s. 7 of the //Charter// because it is too vague. The appeal was rejected. CP now appeals to the Supreme Court. In reasons delivered from the bench, the Court dismissed the interjurisdictional immunity claim. Therefore, this decision only considers CP’s s. 7 //Charter// argument.


 * Held:** Appeal rejected


 * Reasoning**:

__Gonthier J. for the majority:__ · The terms of s. 13(1)(a) are not vague, they apply clearly to pollution activity, which is appropriately the subject of legislative prohibition · The objective of environmental protection is ambitious, therefore, necessitates a broad prohibition and legislature is justified in choosing ambitious means of achieving goal · A survey of environmental policy in other Canadian provinces shows that the legislation is equally as broad as the Ontario provision and thus a finding of unconstitutional vagueness would constitutionally endanger environmental legislation in the rest of Canada · Requirement that laws not be vague based on two rationales: the need to provide fair notice to citizens of prohibited conduct, and the need to proscribe enforcement discretion · In order to determine if a law is vague, the question to be resolved is whether the law provides sufficient guidance for __legal debate__ as to the __scope__ of prohibited conduct. · The s. 7 standard for legal precision will vary depending on the nature and subject matter of the provision · A deferential approach should be taken towards provisions with legitimate social policy objectives · Part of the s. 7 legal precision requirement is that adequate notice of prohibited conduct be given to citizens o This has a substantive and procedural element · Procedural notice involves simply bringing the text of a law to the attention of citizens · The substantive aspect of fair notice is linked with societal values and a subjective understanding that the law touches upon some conduct, based on the substratum of values underlying the legal enactment and on the role that the legal enactment plays in the life of the society · Environmental protection has emerged as a fundamental value in Canadian society · Regulatory and criminal provisions require differential treatment when it comes to //Charter// consideration – one justification for this is that regulatory legislation is essential to the operation of our complex industrial society and the protection of society’s most vulnerable groups · In interpreting and clarifying the language of the s. 13(1)(a), it is clear that CP’s burning fell within the core of the polluting activity prohibited by the provision · Hypothetical fact situations generally have little bearing on a s. 7 vagueness analysis · Gonthier J. concludes that: “s. 13(1)(//a//) EPA, and specifically the expression "for any use that can be made of [the natural environment]", are not unconstitutionally vague or overbroad. Section 13(1)(//a//) is sufficiently precise to provide for a meaningful legal debate, when the provision is considered in light of the purpose and subject matter of the EPA, the nature of the provision as a regulatory offence, the societal value of environmental protection, related provisions of the EPA, and general interpretive principles.”(para 87)

__Lamer C.J. concurring:__ · Agrees substantially with Gonthier J.’s analysis, but with some additional comments about vagueness analysis and arrives at the same conclusion with respect to interpretation of s. 13(1)(a) but based on different principles of construction //Vagueness comments:// · The availability of the defence of due diligence has no bearing on the question of whether the impugned provision in the present case is unconstitutionally vague o The defence of due diligence involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event o The defence does not protect an accused from his or her erroneous interpretation of the terms of a statute, since this is an error of __law__ rather than of __fact,__ therefore, the defence is not relevant to the case before the court //Reasonable hypotheticals in s. 7 vagueness analysis:// · Agrees with Gonthier that they have little bearing on s. 7 vagueness analysis o Hypotheticals are useful analytical tools when a court is called upon to actually interpret a law, however, they are of limited utility when a court sets out to determine simply whether the law provides sufficient guidance should it need to be interpreted · Lamer C.J. emphasizes that this conclusion about hypothetical situations has nothing to do with the question of who has standing to challenge legislation’s constitutionality