Ontario v. Canadian Pacific Ltd.

A railway company conducted two controlled burns to clear its railway right of way of dry grass and weeds but the consequent discharge of thick smoke adversely affected the health, property and activities of nearby residents. The company was charged with unlawfully discharging or permitting the discharge of a contaminant (smoke) into the natural environment contrary to the Environmental Protection Act 1980 (Ont), section 13(1)(a).  Section 13(1) provides that no person shall permit deposit, cause or actually add, emit, or discharge a contaminant into the natural environment that, (a) causes or is likely to cause impairment of the quality of the natural environment for any use that can be made of it; … .’ Subparagraphs (b) to (h) then focus on specific impairments, such as causing injury or damage to property or to plant or animal life and adversely affecting the health of any person (the Act was amended prior to the appeal and a similar provision is now contained in section 14(1) of the Environmental Protection Act 1990 (Ont)).  The company claimed the defense of due diligence and was first acquitted but then convicted on appeal. The company further alleged that section 13(1)(a) in its entirety was unconstitutionally vague and therefore violated the company’s constitutional right not to be deprived of life, liberty and security except in accordance with the principles of fundamental justice (Charter of Rights and Freedoms, section 7). The Court of Appeal dismissed the appeal. On appeal to the Supreme Court, the company argued specifically that the expression ‘for any use that can be made of [the natural environment]’ in section 13(1)(a) was so vague and broad that it failed to provide an intelligible standard that would enable citizens to regulate their conduct.

[Adapted from INTERIGHTS summary, with permission]

Dismissing the appeal, the court held that:

1. The courts should adopt a deferential approach towards legislation designed with legitimate social policy objectives and should not use the vagueness doctrine in section 7 to 'strait-jacket' the state in social policy fields. The generality of s 13(1)(a) was purposely designed to ensure flexibility in the law in order to respond to a wide range of unforeseen environmental problems.
2. Societal values, such as the importance of environmental protection, are highly relevant in assessing whether a general pollution prohibition provides fair notice to citizens of prohibited conduct. It would not come as a surprise to citizens that the 1980 Act prohibited the emission of contaminants into the environment that were likely to impair a use of the natural environment.
3. An examination of comparative provisions and the recommendations of international expert bodies demonstrates that terms such as 'use' and 'impairment' are sufficiently defined as to form the basis of legal debate and section 13(1)(a) is not, therefore, unconstitutionally vague.
4. Section 13(1)(a) is not overbroad because the wide breadth of the provision matches the breadth of the objective of environmental protection.

[Adapted from INTERIGHTS summary, with permission]

"The purpose and subject matter of s. 13(1)(a) EPA, the societal values underlying it, and its nature as a regulatory offence, all have some bearing on the analysis of the s. 7 vagueness claim. Because environmental protection is an important societal value, legislators must have considerable room to manoeuvre in regulating pollution. Section 7 must not be employed to hinder flexible and ambitious legislative approaches to environmental pollution." Page 1033.