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Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031

 

Canadian Pacific Limited                                                                   Appellant

 

v.

 

Her Majesty The Queen in Right of Ontario                                   Respondent

 

and

 

The Attorney General of Quebec,

the Attorney General of Manitoba,

the Attorney General for Saskatchewan and

Canadian Environmental Law Association                                       Interveners

 

Indexed as:  Ontario v. Canadian Pacific Ltd.

 

File No.:  23721.

 

1995:  January 24; 1995:  July 20.

 


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 ontario

 

                   Constitutional law ‑‑ Fundamental justice ‑‑ Vagueness ‑‑ Use of reasonable hypotheticals ‑‑ Overbreadth ‑‑ Environmental protection law drafted in very broad terms ‑‑ Whether or not law capable of interpretation so as to allow for legal debate ‑‑ Environmental Protection Act, R.S.O. 1980, c. 141, ss. 1(1)(c), (k), 13(1)(a) ‑‑ Canadian Charter of Rights and Freedoms, s. 7.

 

                   During controlled burns along the appellant's railway right‑of‑way, dense smoke escaped onto adjacent properties.  This led to complaints about injuries to health and property, and the appellant was charged under s. 13(1)(a) of Ontario's Environmental Protection Act (EPA).  This provision constitutes a broad and general prohibition of the pollution "of the natural environment for any use that can be made of it".  CP's acquittal in the Provincial Offences Court of Ontario was overturned on appeal to the Ontario Court of Justice, Provincial Division and a further appeal to the Court of Appeal was dismissed.  The constitutional issues that were raised in that court were appealed here.  The first, that the Ontario EPA was not constitutionally applicable to CP, a federal undertaking, was dismissed here as Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367, was determinative of the issue.  The second, that s. 13(1)(a), and in particular the words "for any use that can be made of [the natural environment]", was unconstitutionally vague, overbroad, and therefore in violation of s. 7 of the Canadian Charter of Rights and Freedoms, remained.

 

                   Held:  The appeal should be dismissed.

 

                   Per La Forest, L'Heureux‑Dubé, Gonthier, McLachlin, Iacobucci and Major JJ.:  Section 13 (1)(a) EPA was neither unconstitutionally vague nor overbroad, and clearly covered the pollution activity at issue.

 

                   A law will be found unconstitutionally vague if it is so lacking in precision as not to give sufficient guidance for legal debate.  Legislative precision is required because of (1) the need to provide fair notice to citizens of prohibited conduct and, (2) the need to proscribe enforcement discretion.  Vagueness must be considered within the larger context and not in abstracto.  A court can only determine whether an impugned provision affords sufficient guidance for legal debate after its interpretative role has been exhausted.

 

                   Using broad and general terms in legislation may well be justified.  Section 7 of the Charter does not preclude the legislature from relying on the judiciary to determine whether those terms apply in particular fact situations.  The standard of legal precision required by s. 7 will vary depending on the nature and subject matter of a particular legislative provision.  A deferential approach should be taken in relation to legislation with legitimate social policy objectives.

 

                   The purpose of the EPA is to provide for the protection and conservation of the natural environment.  Environmental protection has an obvious social importance and yet the nature of the environment does not lend itself to precise codification.  In the context of environmental protection legislation, a generally framed pollution prohibition may be desirable from a public policy perspective.  The generality of s. 13(1)(a) ensures flexibility in the law, so that the EPA may respond to a wide range of environmentally harmful scenarios which could not have been foreseen at the time of its enactment.

 

                   The fair notice element of vagueness analysis has procedural and substantive aspects.  Procedural notice, which involves the mere fact of bringing the text of a law to the attention of citizens who are presumed to know the law is not a central concern of vagueness analysis.  Instead, the focus of the analysis is the substantive aspect ‑‑ an understanding that some conduct comes under the law.  Whether citizens appreciate that the particular conduct is subject to legislative sanction is inextricably linked to societal values.

 

                   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 protection.

 

                   To secure a conviction under s. 13(1)(a) EPA, the Crown must prove:  (1) that the accused has emitted a contaminant; (2) that the contaminant was emitted into the natural environment; and (3) that the contaminant caused or was likely to cause the impairment of the quality of the natural environment for any use that can be made of it.  The statutory definitions of "contaminant" and "natural environment" provide the basis for legal debate as to what constitutes a "contaminant" and the "natural environment".  The term "impairment" has been the subject of legal debate in other contexts and provides the basis for legal debate.  Judicial interpretation of what constitutes a "use" of the natural environment is easily accomplished through various interpretive techniques.  The word must be considered in its context, should be interpreted in a manner which avoids de minimis applications and absurd results, and may be considered in contexts other than environmental law.  These principles demonstrate that s. 13(1)(a) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable.  A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.

 

                   After taking these interpretive principles and aids into account, the scope of s. 13(1)(a) is reasonably delineated, and legal debate can occur as to its application to a specific fact situation.  This is all that s. 7 of the Charter requires.

 

                   Although its conduct fell within the "core" of polluting activity prohibited by s. 13(1)(a), CP is challenging the provision by relying on hypothetical fact situations which fall at the "periphery".  Peripheral vagueness arises where a statute applies without question to a core of conduct but applies with uncertainty to other activities.  Peripheral vagueness is the basis for the argument that the expression "for any use that can be made of [the natural environment]" is vague because it is not qualified as to time, degree, space or user, and thus fails to delineate clearly an "area of risk" for citizens.

 

                   Reasonable hypotheticals, however, have no place in the vagueness analysis under s. 7.  There is no need to consider hypothetical fact situations, since it is clear after an analysis of the provision and its context that the law either provides or does not provide the basis for legal debate, thereby either satisfying or infringing the requirements of s. 7 of the Charter.

 

                   Unlike the analysis for overbreadth, where reasonable hypotheticals may be advanced, proportionality plays no role in vagueness analysis.  When considering a vagueness claim, a court is required to perform its interpretive function in order to determine if an impugned provision provides the basis for legal debate.  The comparative nature of proportionality is, therefore, not an element of vagueness analysis.

 

                   Section 13(1)(a) is not overbroad.  Environmental protection is a legitimate concern of government and a very broad subject matter which does not lend itself to precise codification.  The legislature, when pursuing the objective of environmental protection, is justified in choosing equally broad legislative language in order to provide for a necessary degree of flexibility.  Section 13(1)(a), while it captures a broad range of polluting conduct, does not apply to pollution with only a trivial or minimal impact on a use of the natural environment.  Moreover, the "use" condition limits the application of s. 13(1)(a) by requiring the Crown to establish not only that a polluting substance has been released, but also that an actual or likely use of the environment, which itself has some significance, has been impaired by the release.  Speculative or purely imaginary uses of the environment are not captured by the provision.  These limits on the application of s. 13(1)(a) prevent it from being deployed in situations where the objective of environmental protection is not implicated.

 

                   It was not necessary to decide whether the independent principle of overbreadth, as outlined in R. v. Heywood, is available to the appellant in the circumstances of this case.  Section 13(1)(a) is simply not overbroad.

 

                   Per Lamer C.J. and Sopinka and Cory JJ.:  Section 13(1)(a) of the Ontario EPA meets the test for vagueness under s. 7 in that it provides sufficient guidance for legal debate.  The claim that the section is unconstitutionally overbroad also fails.


 

                   The availability of a defence can be relevant to s. 7 vagueness analysis if the fact that the defence exists sheds light on the meaning to be ascribed to an otherwise vague provision.  The availability of the defence of due diligence, however, has no bearing on the question of whether s. 13(1)(a) EPA is unconstitutionally vague.  This defence does not protect an accused from the consequences of his or her erroneous interpretation of a vague statutory provision and does nothing to impose standards on how such a provision is applied.  Its availability is thus of no relevance to the s. 7 vagueness analysis.

 

                   Arguments based on hypothetical examples generally have little or no bearing on the s. 7 vagueness analysis since the task of a court conducting the analysis is to determine whether the law at issue provides "sufficient guidance for legal debate", as distinct from actually interpreting it.  This conclusion, however, is not based on any doctrine of standing similar to that found in U.S. case law (such as Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)).  As this Court has held on many occasions, a person charged with an offence in Canada need not show that the law at issue directly infringes his or her constitutional rights in order to have standing to raise a constitutional challenge.  However, the fact that an accused's conduct clearly falls within the ambit of the impugned provision may still be relevant to the s. 7 vagueness analysis since the fact that an identifiable "core" of prohibited activity can be identified will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate.  It should also be noted that s. 7 vagueness claims will often be raised in conjunction with other arguments that do call for a consideration of hypothetical examples.

 

                   As this Court held in R. v. Heywood, s. 7 overbreadth analysis requires a comparison of the state's objectives underlying a statutory provision with the means it has chosen to achieve these objectives.  In order to make such a comparison, it is necessary to interpret the statutory provision in question so as to determine what the means at issue are.  The key to the interpretation of s. 13(1)(a) EPA is the expression "impairment of the quality of the natural environment for any use that can be made of it".  Interpreting this expression requires that meaning be ascribed to two distinct phrases: the phrases "impairment of the quality" and "for any use that can be made [of the natural environment]".

 

                   Ordinarily, it can be presumed that a statute's literal meaning, as construed in the context of the statute as a whole, best reflects the intention of the legislature.  In some cases, however, this presumption can be countered by the competing presumption that the legislature does not intend to violate the constitution.  If the words in a statutory provision reasonably bear an interpretation other than a literal reading, the presumption of constitutionality can sometimes justify rejecting the literal interpretation in favour of the non‑literal reading, when the former interpretation would render the legislation unconstitutional and the latter would not.  If, however, the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt the plain meaning, even if the legislation must then be struck down as unconstitutional.

 

                   The expression "for any use that can be made of [the natural environment]" has an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole, particularly the other paragraphs of s. 13(1).  When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression "for any use that can be made of [the natural environment]" is "any use that can conceivably be made of the natural environment by any person or other living creature".  In ordinary circumstances, once the "plain meaning" of the words in a statute have been identified there is no need for further interpretation.  Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally.  This is one of those exceptional cases, in that a literal interpretation of s. 13(1)(a) would fail to meet the test for overbreadth established in Heywood.

 

                   The state objective underlying s. 13(1)(a) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment".  This legislative purpose, while broad, is not without limits.  In particular, the legislative interest in safeguarding the environment for "uses"  requires only  that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future.  Interpreted literally, s. 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s. 7 overbreadth scrutiny.  There is, however, an alternative interpretation of s. 13(1)(a) that renders it constitutional.  Section 13(1)(a) can be read as expressing the general intention of s. 13(1) as a whole, and paras. 13(1)(b) through (h) can be treated as setting out specific examples of "impairment[s] of the quality of the natural environment for any use that can be made of it".  When viewed in this way, the restrictions place on the word "use" in paras. (b) through (h) can be seen as imported into (a) through a variant of the ejusdem generis principle.  Interpreted in this manner, s. 13(1)(a) is no longer unconstitutionally overbroad, since the types of harms captured by paras. (b) through (h) fall squarely within the legislative intent underlying the section.  In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of s. 13(1)(a).   Thus, the subsection should be understood as covering the situations captured by paras. 13(1)(b) through (h), and any analogous situations that might arise.

 

                   The term "impairment" supports two alternative interpretations: it can be seen as covering even slight departures from the norm or, alternatively, as requiring a more marked departure.  When interpreting a term that on its face bears two equally plausible meanings, it is appropriate to consider the consequences that would result from applying either interpretation to the statutory provision at issue, and to ask whether these consequences can plausibly be seen as having been intended by the legislature.  If the term "impairment" in s. 13(1)(a) were interpreted as capturing all slight departures from the norm, virtually everyone in Ontario would regularly be in contravention of the section, and thus subject to fines or imprisonment.  While the legislature has a legitimate interest in controlling pollution that results from multiple sources, each one insignificant in itself (such as air pollution resulting from automobile emissions) the legislature clearly did not consider the threat of imprisonment to be an appropriate means of addressing problems of this nature (for example, the legislature clearly did not contemplate the imprisonment of all Ontario drivers).  Rather, the legislature intended to reserve the  threat of imprisonment as a deterrent aimed at persons whose activities contribute significantly to an environmental problem.  When the term "impairment" in s. 13(1)(a) is interpreted in this manner, the impugned provision is not overbroad in relation to the underlying legislative purpose.

 

Cases Cited

 

By Gonthier J.

 

                   FollowedCanadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; appliedR. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; consideredR. v. Commander Business Furniture Inc. (1992), 9 C.E.L.R. (N.S.) 185; not followedHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Parker v. Levy, 417 U.S. 733 (1974); referred toR. v. Morgentaler (1985), 52 O.R. (2d) 353; R. v. Lopes (1988), 3 C.E.L.R. (N.S.) 78; R. v. Royal Pacific Seafarms Ltd. (1989), 7 W.C.B. (2d) 355; Québec (P.G.) v. Noranda Inc. (Mines Noranda Ltée) (1989), 4 C.E.L.R. (N.S.) 158; R. v. Algoma Steel Corp. (1991), 14 W.C.B. (2d) 264; R. v. Satellite Construction Ltd. (1992), 8 C.E.L.R. (N.S.) 215; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Stellato (1993), 78 C.C.C. (3d) 380, aff'd [1994] 2 S.C.R. 478; R. v. McKenzie (1955), 111 C.C.C. 317; R. v. Smith (1992), 73 C.C.C. (3d) 285; R. v. Winlaw (1988), 13 M.V.R. (2d) 112; R. v. Bruhjell, [1986] B.C.J. No. 746 (QL); R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269; The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482; Qualico Developments Ltd.  v. M.N.R. (1984), 51 N.R. 387; Galt Art Metal Co. v. Pedlar People Ltd., [1935] O.R. 126; Elias v. Insurance Corp. of British Columbia (1992), 95 D.L.R. (4th) 303; Watts v. Centennial Insurance Co. (1967), 62 W.W.R. 175; Rockert v. The Queen, [1978] 2 S.C.R. 704; Stevenson v. R. (1980), 19 C.R. (3d) 74; Conlin v. Prowse (1993), 109 D.L.R. (4th) 243; Pickering Twp. v. Godfrey, [1958] O.R. 429; R. v. Zundel (1987), 58 O.R. (2d) 129; R. v. LeBeau (1988), 41 C.C.C. (3d) 163; Thornhill v. Alabama, 310 U.S. 88 (1940); R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Heywood, [1994] 3 S.C.R. 761.

 

By Lamer C.J.

 

                   AppliedR. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; consideredCommittee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Creighton, [1993] 3 S.C.R. 3; not followedParker v. Levy, 417 U.S. 733 (1974); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); referred toR. v. Keegstra, [1990] 3 S.C.R. 697; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; Broadrick v. Oklahoma, 413 U.S. 601 (1973); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. McIntosh, [1995] 1 S.C.R. 686; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. DeSousa, [1992] 2 S.C.R. 944; Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Hibbert, [1995] 2 S.C.R. 973.

 

Statutes and Regulations Cited

 

Act to amend certain Acts respecting the Environment, S.O. 1988, c. 54, s. 10 [rep. and repl. R.S.O. 1980, c. 141, s. 13; subsequently renumbered, R.S.O. 1990, c. E.19, s. 14(1)].

 

Canadian Charter of Rights and Freedoms, ss. 7, 12.

 

Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), s. 67.

 

Clean Environment Act, R.S.N.B. 1973, c. C-6, s. 5.3 [ad. S.N.B. 1989, c. 52, s. 6; am. S.N.B. 1993, c. 13, s. 5].

 

Constitution Act, 1982, s. 52.

 

Environment Quality Act, R.S.Q. 1977, c. Q-2, s. 20.

 

Environmental Management and Protection Act, S.S. 1983-84, c. E‑10.2, ss. 2(v), 34.1 [ad. S.S. 1992, c. 49, s. 5].

 

Environmental Protection Act, R.S.N.S. 1989, c. 150, ss. 3(f)(i)(A), (n), 23(1).

 

Environmental Protection Act, R.S.O. 1980, c. 141, ss. 1(1)(c) [am. S.O. 1983, c. 52, s. 1], (k), 2, 13(1)(a), (b), (c), (d), (e), (f), (g) [ibid., s. 4], (h) [idem], (2), 23(1)(c), (2), 73.

 

Environmental Protection Act, R.S.P.E.I. 1988, c. E‑9, s. 20.

 

Environmental Protection and Enhancement Act, S.A. 1992, c. E‑13.3, s. 98.

 

Municipal Act, R.S.O. 1950, c. 243, s. 390.

 

Waters Protection Act, R.S.N. 1990, c. W‑5, s. 8.

 

Authors Cited

 

Butler, Andrew S.  "A Presumption of Statutory Conformity with the Charter" (1993), 19 Queen's L.J. 209.

 

Canada.  Law Reform Commission.  Working Paper 44.  Crimes Against the Environment.  Ottawa:  The Commission, 1985.

 

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 2nd ed.  Cowansville:  Yvon Blais, 1991.

 

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

 

Driedger on the Construction of Statutes, 3rd ed.  By Ruth Sullivan.  Toronto:  Butterworths, 1994.

 

Jadach, Christina L.  "Pre‑enforcement Constitutional Challenges to Legislation after Hoffman Estates:  Limiting the Vagueness and Overbreadth Doctrines" (1983), 20 Harv. J. on Legis. 617.

 

United Nations.  World Commission on Environmental and Development.  Experts Group on Environmental Law.  Report of the Experts Group on Environmental Law of the World Commission on Environment and Development (WCED).  Legal Principles for Environmental Protection and Sustainable Development.  U.N. Doc. WCED/86/23/Add. 1 (1986), A/42/427, Annex I.  In Edith Brown Weiss, Danile Barstow Magraw and Paul C. Szasz, eds.  International Environmental Law:  Basic Instruments and References.  Dobbs Ferry, N.Y.:  Transnational Publishers, Inc., 1992.

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1993), 13 O.R. (3d) 389, 63 O.A.C. 222, 103 D.L.R. (4th) 255, 10 C.E.L.R. (N.S.) 169, 81 C.C.C. (3d) 498, 22 C.R. (4th) 238, 15 C.R.R. (2d) 278, allowing an appeal from a judgment of Fraser Prov. Div. J. (1992), 9 C.E.L.R. (N.S.) 26 allowing an appeal from acquittal by the Provincial Offences Court of Ontario.  Appeal dismissed.

 

                   H. C. Wendlandt and G. Despars, for the appellant.

 

                   David Lepofsky and Pat Moran, for the respondent.

 

                   Jean Bouchard, for the intervener the Attorney General of Quebec.

 

                   Kenneth J. Tyler and Stewart J. Pierce, for the intervener the Attorney General of Manitoba.

 

                   Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.

 

                   Richard D. Lindgren, for the intervener Canadian Environmental Law Association (written submission only).

 

                   The reasons of Lamer C.J. and Sopinka and Cory JJ. were delivered by

 

1                 Lamer C.J. -- I have read the reasons of my colleague Justice Gonthier, and find myself in substantial agreement with his analysis of the appellant's claim that s. 13(1)(a) of the Ontario Environmental Protection Act, R.S.O. 1980, c. 141 ("EPA"), is unconstitutionally vague, subject to certain additional comments that I will set out below.  In particular, I agree with my colleague's conclusion that the section provides sufficient guidance for legal debate, and therefore meets the test for vagueness set out by this Court in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.  On the question of the actual interpretation that should be given to s. 13(1)(a), however, I find that although my colleague and I adopt substantially similar interpretations of the section, we reach our conclusions on the basis of different principles of construction.  Therefore, while I agree with Gonthier J. that the appellant's alternative claim that the section is unconstitutionally overbroad also fails, and that the appeal should accordingly be dismissed, I arrive at this conclusion by a somewhat different route from that taken by my colleague.

 

I. The Section 7 Vagueness Claim

 

2                 In Nova Scotia Pharmaceutical Society, the Court (per Gonthier J.) established the test for assessing "void for vagueness" claims under s. 7 of the Canadian Charter of Rights and Freedoms, declaring (at p. 643) that "a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate".  As my colleague observes in his reasons, vague laws have the potential to violate the requirements of the principles of fundamental justice that citizens be provided with fair notice of prohibited conduct, and that there be adequate safeguards against selective and arbitrary law enforcement.   As I noted above, on the issue of vagueness I am in substantial agreement with Gonthier J.'s s. 7 analysis, and with his conclusion that s. 13(1)(a) EPA is not unconstitutionally vague.  I wish, however, to make a few brief comments in connection with two points: the relevance of the existence of a defence of due diligence to the issue of vagueness under s. 7, and the role of "reasonable hypotheticals" in the s. 7 vagueness analysis.

 

A.The Relevance of the Defence of Due Diligence to Section 7 Vagueness Analysis

 

3                 In its submissions, the respondent argued that the fact that persons charged with violations of s. 13(1)(a) can raise a defence of "due diligence" was relevant to the issue of whether the subsection fails s. 7 vagueness analysis.  With respect, I do not agree that the availability of the defence of due diligence has any bearing on the question of whether the impugned provision in the present case is unconstitutionally vague.  In my view, while the fact that a defence exists will often shed light on the meaning that is to be ascribed to an otherwise vague provision, and thus be relevant to s. 7 vagueness analysis, this is not the case with every defence.  What is important is the relation between the defence and the terms of the statute that are said to be unconstitutionally imprecise.  In R. v. Keegstra, [1990] 3 S.C.R. 697, for instance, the defences established in s. 319(3) of the Criminal Code, R.S.C., 1985, c. C-46, to prosecutions for "wilfully promoting hatred" under s. 319(2) provided considerable assistance in interpreting the ambit of the offence in s. 319(2).  As Dickson C.J. observed (at p. 779, in the context of considering vagueness under s. 1 of the Charter):

 

[The s. 319(3)] defences are ... intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described [in s. 319(3)] are thus given a strong signal that their activity will not be swept into the ambit of the offence.  The result is that what danger exists that s. 319(2) is overbroad or unduly vague, or will be perceived as such, is significantly reduced.

 

4                 In contrast, the fact that the defence of due diligence is available does not help provide a basis for interpreting the term "use" in s. 13(1)(a) of the Ontario EPA.  As Dickson J. (as he then was) noted in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, at p. 1326:

 

[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.

 

The defence does not, however, 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.  This sort of error is, of course, the type most likely to arise as a consequence of vague language having been used in a statute.  Although the defence of due diligence prevents some actors from being found liable under s. 13(1)(a), it does nothing to impose standards on the application of the section in other cases.  In my view, since the availability of the defence does nothing to address the problems that might potentially arise as a result of the imprecise language employed by the drafters of s. 13(1)(a), it is of no relevance to the s. 7 vagueness analysis. 

 

B.The Role of Reasonable Hypotheticals in Section 7 Vagueness Analysis

 

5                 I agree with Gonthier J.'s conclusion that arguments based on hypothetical fact situations will generally have little or no bearing on the analysis that is required when assessing s. 7 vagueness claims. I wish to emphasize, however, that this results from the nature of the s. 7 vagueness analysis itself, as set out in Nova Scotia Pharmaceutical Society, supra, rather than as a consequence of any limitations on standing akin to those found in American case law.  As Nova Scotia Pharmaceutical Society indicates, the task of a court conducting s. 7 vagueness analysis is to determine whether the law at issue provides "sufficient guidance for legal debate".  Put another way, the court must determine whether the words chosen by the legislature provide an adequate foundation upon which to anchor an interpretation of the law that provides adequate notice of prohibited conduct and guards against "standardless sweeps".  Determining whether a law can be interpreted in this manner is, however, a distinct process from actually interpreting the law.  While a court that actually interprets a law also demonstrates in the process that the law is capable of interpretation, the converse is not true -- it is possible to establish that a law is capable of being interpreted while leaving for another day the actual problem of interpreting it.  When called on actually to interpret a law, a court will usually be required to draw lines separating prohibited from non-prohibited conduct.  In so doing, considering how the law would apply to hypothetical fact situations will often be a useful analytical tool.  In contrast, when analysing whether a law is capable of being interpreted, recourse to such hypotheticals will often be unnecessary, since all that is required is that it be established that the law provides sufficient guidance to direct the interpretive exercise.

 

6                 Although hypothetical examples are thus of limited utility when conducting s. 7 vagueness analysis of legislation, I wish to emphasize that this conclusion has nothing whatsoever to do with the question of who has standing to challenge the legislation's constitutionality.  More specifically, this conclusion is not based on any doctrine of standing similar to that found in American cases such as Parker v. Levy, 417 U.S. 733 (1974), and Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), cases that were relied on by the trial judge and the Court of Appeal in the present case.  In Parker, the U.S. Supreme Court held, at p. 756, that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness".  This position was subsequently reaffirmed in Hoffman Estates, supra, where the court stated, at p. 495:

 

A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.  A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

 

This approach accords with the general American doctrine on standing to challenge legislation's constitutionality, which was described by the U.S. Supreme Court in the following terms in Broadrick v. Oklahoma, 413 U.S. 601 (1973), per White J., at pp. 610-11 :

 

                   Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.... [This principle reflects] the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws.

 

7                 This Court, however, has adopted a different approach to the question of standing in Canada, in recognition of the Canadian constitution's distinct structure -- in particular, the existence of s. 52 of the Constitution Act, 1982, which declares that laws that are inconsistent with the provisions of the Constitution are "to the extent of the inconsistency, of no force or effect".  As Dickson J. observed in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 313-14:

 

                   Section 52 [of the Constitution Act, 1982] sets out the fundamental principle of constitutional law that the Constitution is supreme.  The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law.  The respondent [Big M] did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional.  If it had been engaged in such "public interest litigation" it would have had to fulfill the status requirements laid down by this Court in the trilogy of "standing" cases ... but that was not the reason for its appearance in Court.

 

                   Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid.  Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

 

This principle has been reconfirmed by this Court on many subsequent occasions.  For instance, in R. v. Morgentaler, [1988] 1 S.C.R. 30, Dr. Morgentaler was allowed to argue that the law under which he was charged violated s. 7 as a consequence of its impact on some women, and his acquittal was restored.  Similarly, in  R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, the Court confirmed that a corporation was entitled to challenge the constitutionality of the law under which it was charged, notwithstanding the fact that the constitutional challenge was based on s. 7, which does not grant rights to corporations (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927).  In my view, this principle applies equally to s. 7 vagueness challenges.  That is, a person charged with an offence need not demonstrate that the law at issue directly infringes his or her constitutional rights in order to obtain standing to raise a constitutional challenge.  That is not to say, however, that the fact that an accused's conduct clearly falls within the ambit of the law is irrelevant to the question of whether the law is unconstitutionally vague -- rather, the fact that there is some identifiable "core" of activity prohibited by the law will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate.  Furthermore, the fact that an accused has standing to challenge a law does not inevitably mean that he or she will benefit from a finding that the law is unconstitutional, since there is always the possibility that a court might be able to sever or read down the offending provision so as to maintain its applicability to the accused's particular case (whether this is possible will, of course, depend on how the principles I set out in Schachter v. Canada, [1992] 2 S.C.R. 679, at pp. 705ff, apply to the particular piece of legislation at issue).  Depending on the circumstances, the fact that the impugned law is directed at an identifiable "core" of conduct may be a factor to consider in deciding whether either of these remedial alternatives are appropriate.  Of course, if it proves necessary to strike the offending law down in its entirety, this invalidation will apply to the prosecution of the accused's case: see Wholesale Travel, supra, at pp. 179ff.

 

8                 It should be noted that although s. 7 vagueness analysis itself requires courts only to establish whether or not a given law is capable of being interpreted, and does not demand that courts take the next step and actually provide an interpretation, vagueness claims will often be raised in conjunction with other arguments that do require courts actually to engage in the interpretive process.  Once it has been established that a given law provides sufficient guidance for legal debate, many accused persons will attempt to argue that the law, when properly understood, does not prohibit their conduct.  Alternatively, they may argue that while the law does apply to them on its face, the law itself is unconstitutionally overbroad (see R. v. Heywood, [1994] 3 S.C.R. 761) and thus violates s. 7.  In order to resolve these claims, it will generally be necessary for a court actually to interpret the law and identify the boundary between prohibited and non-prohibited conduct.  When conducting this analysis, it will often prove necessary to consider hypotheticals, even when this is not required at the s. 7 vagueness analysis stage.

 

II. The Section 7 Overbreadth Claim

 

9                 The alternative constitutional argument open to the appellant in this case is based on the protection s. 7 of the Charter provides against overbroad laws.  The principles governing s. 7 overbreadth analysis were set out by Cory J. (writing for the majority) in Heywood, supra, at pp. 792-93:

 

                   Overbreadth analysis looks at the means chosen by the state in relation to its purpose.  In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective?  If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason.  The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

 

He continued by observing that "[r]eviewing legislation for overbreadth as a principle of fundamental justice is simply an example of balancing of the State interest against that of the individual".  Furthermore, he stated at p. 793:

 

                   In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature.  While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices.  A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator.

 

10               Before the state's means can be compared to its objectives, it is necessary to determine what exactly those means are -- that is, the statutory provision that is at issue must be interpreted, in order that its true scope be identified.  The key to the interpretation of s. 13(1)(a) of the Ontario EPA is the expression "impairment of the quality of the natural environment for any use that can be made of it", a phrase which both defines the scope of s. 13(1)(a) and specifies what is and what is not a "contaminant", as defined in s. 1(1)(c) of the Act.  As Gonthier J.'s reasons indicate, interpreting this expression requires that meaning be ascribed to two distinct phrases: the phrases "impairment of the quality" and "for any use that can be made [of the natural environment]".

 

11               The starting point of the interpretive process is the plain meaning of the statute's terms.  As I noted in R. v. McIntosh, [1995] 1 S.C.R. 686, at p. 697, "[w]here the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise".   Of course, isolated words in a statute will, bereft of their context, tend to support more than one meaning.  As Driedger notes (Construction of Statutes (2nd ed. 1983)) at p. 39:

 

Words, and particularly general words, when taken by themselves, can almost always be said to have two meanings (and in a law suit it is so urged), a broad one and a restricted one, and the task is to determine what the meaning is in the particular context.  If the context determines the meaning, then the words are clear and unambiguous and effect must be given to them whatever the consequences.

 

Similarly, as Côté observes (The Interpretation of Legislation in Canada (2nd ed. 1991)) at p. 242:

 

                   It should not be forgotten that research in semantics has shown that words only take on their real meaning when placed in context.  The meaning of words and sentences is crystallized by the context, and in particular by the purpose of the message.

 

Thus, the 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.  As Driedger observes at p. 106, "[t]he `intention of Parliament' can only be an agreement by the majority that the words in the bill express what is to be known as the intention of Parliament."  Côté makes a similar point, noting at p. 248 that "[i]t is only reasonable to assume that apparent intention leads to the true intention: lacking extra-sensory perception, we have no other choice".  Thus, the best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what is says, when this can be clearly ascertained.

 

12               The presumption that a statute's literal meaning, as construed in the context of the statute as a whole, best reflects legislative intention is valid in ordinary circumstances.  However, the presumption is not irrebuttable.  In cases where special circumstances exist, these circumstances can lead a court to conclude that a statutory provision's apparent literal meaning does not, in fact, provide an accurate reflection of the legislature's intentions, and that an alternative understanding of the words in the statute would be more appropriate, provided that the words of the statute reasonably bear such an alternative interpretation.  One situation where such special circumstances can occur is in cases where a statutory provision would be unconstitutional if it were to be interpreted literally.  In such cases, the presumption that the legislature intended that effect to be given to the plain meaning of its enactments can be countered by the competing presumption that the legislature ordinarily does not intend to violate the constitution.  If the words in the statutory provision at issue reasonably bear an interpretation other than a literal reading, this second presumption will justify rejecting the literal interpretation in favour of the non-literal reading, when the former (but not the latter) interpretation would render the legislation unconstitutional.  As I stated in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, (writing for the Court on this point):

 

Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.

 

13               In Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, I applied this approach to statutory construction in the course of interpreting s. 7 of the Government Airport Concession Operations Regulations, SOR/79-373, which stated that "no person shall ... advertise or solicit at an airport on his own behalf or on behalf of any person" without prior ministerial approval.  I held (Sopinka and La Forest JJ. concurring on this point) that, as a matter of construction, this section did not apply to political speech.  I based this conclusion in part "on the interpretative presumption that legislation is constitutional" (p. 163).  Although a majority of the Court adopted a different interpretation of s. 7 of the Regulations, I do not understand the majority as rejecting the existence of the presumption of constitutionality, but rather as differing as to its application on the particular facts of the case.  Indeed, McLachlin J. expressly referred to the presumption (at p. 244), but took the position that it did not apply in that case, since even if s. 7 of the Regulations were held to apply (which would violate s. 2(b) of the Charter) the section might still be upheld under s. 1 and thus be constitutional.

 

14               Similarly, in R. v. Creighton, [1993] 3 S.C.R. 3, I took the position that the term "unlawful act" in s. 222(5)(a) of the Criminal Code, R.S.C., 1985, c. C-46, should be interpreted to include a requirement that there be objective foreseeability of death.  After concluding that s. 7 of the Charter required no less, I stated at p. 23 that "it remains to consider whether s. 222(5)(a) is open to an interpretation that would render it constitutional in this regard".  I held that it was, stating at pp. 24-25 that:

 

... in light of the constitutional imperative, the wording of the section, and the reasoning employed by this Court in [R. v. DeSousa, [1992] 2 S.C.R. 944] and the Ontario Court of Appeal in R. v. L. (S.R.) [(1992), 11 O.R. (3d) 271], I have no hesitation in concluding that the section is open to an interpretation that would render it constitutional.

 

Although I was writing in dissent on this issue, the source of my disagreement with the majority was over the issue of whether or not s. 7 required objective foreseeability of death rather than on the application of the presumption of constitutionality if it did.  While the majority (per McLachlin J.) interpreted the section differently, no suggestion was made that my interpretive approach was incorrect in light of my premise that the alternative interpretation was unconstitutional -- rather, the majority did not accept this premise.  Indeed, the majority interpreted "unlawful act" as requiring objective foreseeability of bodily harm, as had the Court in R. v. DeSousa, [1992] 2 S.C.R. 944, when interpreting these as used in s. 269 of the Code -- an interpretation that itself clearly departs from the "plain meaning" of the word "unlawful act", standing alone.  In DeSousa, it should be noted, the Court rejected the literal meaning of this phrase (which had been suggested in Smithers v. The Queen, [1978] 1 S.C.R. 506), in part on the grounds that "Smithers was not argued under the Charter" (p. 960, per Sopinka J.).

 

15               In my view, therefore, the presumption of constitutionality can sometimes serve to rebut the presumption that the legislature intended that effect be given to the "plain meaning" of its enactments.  It is important to note, however, that the process of invoking the presumption of constitutionality so as to arrive at an interpretation different from that that would ordinarily result from applying the rules of statutory construction leads to essentially the same result as would be reached by adopting the ordinary interpretation, holding that the legislation is unconstitutional, and "reading it down"  as a remedy under s. 52 of the Constitution Act, 1982.  In light of this essential similarity between the two processes, it is clear that courts relying on the presumption of constitutionality to interpret legislation must take into account the principles I identified in Schachter, supra, in the context of "reading down" as a constitutional remedy.  As I stated in that case (at p. 715), "respect for the role of the legislature and the purposes of the Charter are the twin guiding principles" when crafting a remedy under s. 52; in my view, they also provide guidance when interpreting legislation in light of the presumption of constitutionality.  In this latter context, the former principle imposes a requirement that any alternative interpretation adopted in preference to the "plain meaning" must itself be one that is reasonably supported by the terms of the legislation.  As I observed in Schachter at pp. 708-9:

 

Where the choice of means is unequivocal, to further the objective of the legislative scheme through different means would constitute an unwarranted intrusion into the legislative domain.

 

Thus, merely invoking the presumption of constitutionality does not give a court complete freedom to depart from the terms of a statute employed by the legislature.  Rather, the presumption is simply a factor that on some occasions tips the scales in favour of one interpretation over another construction that, in the absence of this consideration, would appear to be the most strongly supported by the rules of statutory construction.  If the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt this meaning, even if this means that the legislation will be struck down as unconstitutional.

 

A."For Any Use That Can Be Made of It"

 

16               In order to apply this approach in the present case, it is first necessary to determine whether the terms of s. 13(1)(a) have a "plain meaning" when viewed in the context of the statute as a whole.  I begin by considering the expression "for any use that can be made of [the natural environment]".  Although the word "use" is somewhat ambiguous when considered on its own, the expression "for any use that can be made of [the natural environment]" has, in my view, an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole, particularly the other subsections of s. 13(1).  Section 13(1) contains eight subsections ((a) through (h)).  If each of these subsections is seen as having been intended by the legislature to address a distinct problem (which, in my view, is the most natural construction when the presumption of constitutionality is left out of the picture), differences in the manner in which the term "use" is employed in the different subsections become significant.  In s. 13(1)(a), for instance, the word "use" is qualified by the addition of the word any, which suggests that "use" is to be interpreted broadly.  This stands in marked contrast to s. 13(1)(g), where the meaning of the word "use" is restricted by the further qualifier that it be "normal".  The fact that s. 13(1)(f) employs the term "for use by man" (emphasis added) is also significant, since the absence of such qualification in s. 13(1)(a) suggests an intention on the part of the drafters that the section apply to "uses" of the environment by non-humans as well as by humans.  Finally, the use of the phrase "can be made of it" (emphasis added) suggests that the subsection is not restricted to actual existing uses, but applies instead to any conceivable use.  When these factors are taken into account, it can, I believe, be concluded that the literal meaning of the expression "for any use that can be made of [the natural environment]" is "any use that can conceivably be made of the natural environment by any person or other living creature".

 

17               In ordinary circumstances, once the "plain meaning" of the words in a statute have been identified, there is no need for further interpretation.  In particular, as I indicated in McIntosh, supra, at p. 704, even when the literal interpretation of a statute results in absurd or undesirable consequences, this "is not ... sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis".  As I have explained, however, different considerations can apply in cases where interpreting a statute in a literal manner would not merely lead to undesirable results, but would also render the statute unconstitutional.  This, I believe, is one of those exceptional cases -- in my view, if interpreted literally, s. 13(1)(a) would fail to meet the test for overbreadth established by this Court in Heywood, supra.

 

18               As Cory J.'s reasons in Heywood, supra, establish, in order to conduct overbreadth analysis under s. 7 it is first necessary to identify the state objective underlying the law, which is then to be compared with the means the legislature has chosen to achieve it.  In the case of s. 13(1)(a) EPA, the state objective is, as s. 2 of the Act declares, "the protection and conservation of the natural environment."  Among other things, the objectives of the Act thus seem to encompass the preservation of the natural environment for some range of use by humans and animals.  I agree with my colleague Gonthier J.'s observations that environmental protection is a very broad subject matter.  I do not believe, however, that the scope of the Ontario legislature's intentions underlying the enactment of s. 13(1)(a) is unlimited.  In particular, I do not believe that the legislature intended to prohibit absolutely all human activity that has the effect of reducing to any degree the suitability of a particular portion of the environment for any conceivable use.  In my view, the legislative interest in safeguarding the environment for "uses" extends only so far as to require that it be preserved for those "uses" that are normal and typical of the place in question, or that are likely to become normal or typical in the future. 

 

19               As I have explained, however, when interpreted literally, s. 13(1)(a) captures considerable activity outside this range, since on a literal reading, the expression "any use that can be made of [the natural environment]" includes all activities that could go on at a given locale, not merely those that normally or even sometimes take place there, or are likely to take place there in the future.  Thus, for example, under a "plain meaning" interpretation of s. 13(1)(a) all Ontario residents who in winter-time place sand on the icy sidewalks in front of their houses to lessen the risk of passers-by injuring themselves by slipping and falling would seemingly be subject to prosecution and imprisonment: city sidewalks are clearly part of the "natural environment" as defined in s. 1(1)(k) EPA, and the spreading of sand can render them less suitable for use as cross-country ski trails (making sand a "contaminant", and triggering the operation of s. 13(1)(a)).  It would be no defence for the accused to establish that no-one wanted to ski on the sidewalk, since as long as it was clear that it was physically possible to "use" sidewalks in this manner (so that this "use" was thus conceivable), it would fall within the scope of the section.  While my colleague Gonthier J. is no doubt correct in his assertion, in para. 56, that "the average citizen in Ontario would have known that pollution was statutorily prohibited", I believe it is also fair to say that the average person in Ontario would have been very surprised to learn that placing sand on sidewalks, and countless other similar activities, were prohibited and subject to criminal sanction even when they did not interfere with any actual current or probable future "use" of the environment.  Although the fact that police and provincial prosecutors rarely, if ever, lay charges against persons whose activities interfere with purely hypothetical "uses" of the environment cannot, in my view, be invoked to sustain the legislation if it were found to be unconstitutionally overbroad (in my opinion, my reasoning in R. v. Smith, [1987] 1 S.C.R. 1045, applies equally to the present context), this fact does suggest that the legislature did not seriously intend that all such activity was to be prohibited and punished.  In my view, the fact that s. 13(1)(a), when interpreted literally, captures a wide range of activities that fall outside the scope of the legislative purpose underlying the section indicates that the provision would, if given this interpretation, fail to meet s. 7 scrutiny.  Imprisoning a person whose activities do not affect any actual or apprehended "use" of the environment and which do not have any other negative effect would, in my view, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice -- imposing penal sanctions in such cases would indeed "[go] beyond what is needed to accomplish the governmental objective": Heywood, supra, at p. 794.

 

20               The question that must be addressed in the present case is thus the following: given the presumption that the legislature intended to legislate in accordance with the constitution, is s. 13(1)(a) open to an alternative construction that would render it constitutional?  In my view, such an alternative interpretation does indeed exist.  As I noted earlier, the most natural manner of viewing s. 13 is to view all of the various subsections as directed at different (albeit overlapping) evils.  However, it is also possible to interpret s. 13(1)(a) as expressing the general intention of the section as a whole, and to treat paras. 13(1)(b) through (h) as setting out specific examples of "impairment[s] . . . of the natural environment for any use that can be made of it".  That is, s. 13(1)(a) can be read as if it were part of the main body of the section, with words to the effect of "and, without limiting the generality of the foregoing, that" interposed between it and the other subsections.  When viewed in this way, the fact that the word "use" in paras. (b) through (h) is qualified and narrowed in several respects has a very different effect than it does if para.(a) is seen as standing independently (as was discussed above) -- now, the restrictions on the term in the other subsections can be seen as being imported into para. (a) (through a variant of the ejusdem generis principle), rather than as suggesting that the term as used in para. (a) is to be interpreted more broadly than in the other subsections.

 

21               In my view, s. 13(1) is open to construction in this manner.  Furthermore, when provisions in paras. 13(1)(b) through (h) are taken as specifying the sense to be ascribed to the term "use" in para. (a), I am of the view that the section is no longer unconstitutionally overbroad, since the types of harms captured by paras. (b) through (h) fall squarely within the legislative intent underlying the section and the Act as a whole.  In light of the presumption that the legislature intended to act in accordance with the constitution, I believe it is appropriate to interpret s. 13(1)(a) in this manner, as providing the best reflection of the intentions of Ontario's legislature.  That is, the term "for any use that can be made of [the natural environment]" in s. 13(1)(a) should be understood as covering situations captured by paras 13(1)(b) through (h) and analogous situations, if any indeed exist.  For the purposes of the present case, I believe it suffices to resolve the interpretive problem only to this level of detail, since it is clear that any interpretation based on the framework of construction I have outlined above will not be unconstitutionally overbroad.  That is, it is unnecessary in the present case to determine whether there exist any situations analogous to those in paras. 13(1)(b) through (h) that would not be captured by those subsections but would be covered by (a), since it is clear that in the case at bar the appellant's conduct contravened, at minimum, s. 13(1)(b), (c), (d) and (g).  This is sufficient to bring the appellant squarely within the ambit of para. (a), under any interpretation where the content of para. (a) is informed by the terms of s. 13(1)'s other paragraphs.

 

B. "Impairment"

 

22               What remains to be considered is the interpretation to be given to the word "impairment" as it appears in s. 13(1)(a).  As Gonthier J. points out, the meaning of the related term "impaired" has been the subject of considerable debate in the context of the "impaired driving" provision of the Criminal Code (s. 253(a)), where courts have reached differing conclusions over whether or not the term covers even a slight departure from the norm, or whether instead some more marked departure from the norm is required.  It is clear from this debate that the term "impair" equally supports either of these two senses standing alone, and that the task of interpretation thus arises.  I find it unnecessary, however, to invoke the presumption of constitutionality here, since I am of the view that an interpretation can be generated by the ordinary rules of construction that is not overbroad.

 

23               When interpreting a term that on its face bears two equally plausible meanings, it is appropriate to consider the consequences that would result from applying either interpretation to the statutory provision at issue, and to ask whether these consequences can plausibly be seen as intended by the legislature (see my reasons in R. v. Hibbert, [1995] 2 S.C.R. 973.)  In the context of s. 13(1)(a), interpreting the term "impairment" as including all slight departures from the norm would mean that virtually everyone in Ontario would regularly be in contravention of the section, and thus liable to fines and imprisonment.  Although the Ontario legislature is undoubtedly concerned about the significant impairments of environmental quality that can result from the aggregate of a large number of sources of pollution, each having an insignificant effect standing alone, I do not believe that the legislature considered the threat of imprisonment an appropriate means of addressing problems of this nature.  For example, it is well established that emissions from automobiles are a major contributor to smog in urban areas, which is clearly an environmental problem of the sort the legislature was concerned with.  While no one automobile can be said to "impair" environmental quality significantly, the combination of many thousands of automobiles results in a significant source of discomfort and hazard to health.  Yet, while the legislature no doubt has a legitimate interest in controlling such pollution, it clearly did not contemplate the imprisonment of all drivers in Ontario.  Rather, I believe the legislature intended to reserve the threat of imprisonment as a deterrent aimed at persons whose activities contribute significantly to an identifiable environmental problem.  It is self-evident, I believe, that when the term "impairment" is interpreted in this manner it does not render the impugned provision overbroad in relation to the legislative purpose.

 

III. Conclusion

 

24               Subject to the above remarks, I would dismiss the appeal in accordance with the reasons of Gonthier J.

 

                   The judgment of La Forest, L'Heureux-Dubé , Gonthier, McLachlin, Iacobucci and Major JJ. was delivered by

 

                   Gonthier J. --

 

I. Issues

 

25               The issues in this appeal are encompassed in the three following constitutional questions:

 

1.Does s. 13(1)(a) of the Environmental Protection Act, R.S.O. 1980, c. 141 (now s. 14(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19), constitutionally apply to the appellant when maintaining its right-of-way?

 

2.Is s. 13(1)(a) of the Environmental Protection Act so vague as to infringe s. 7 of the Canadian Charter of Rights and Freedoms?

 

3.If the answer to question 2 is in the affirmative, is s. 13(1)(a) nevertheless justified by s. 1 of the Charter?

 

26               The first question was answered in the affirmative in reasons delivered orally at the conclusion of the hearing of the appeal and the decision as to questions 2 and 3 was reserved.  These reasons respond to the second and third questions.  The issue as argued is more fully stated as whether s. 13(1)(a) of Ontario's Environmental Protection Act, R.S.O. 1980, c. 141 (as amended) ("EPA") contravenes s. 7 of the Canadian Charter of Rights and Freedoms because it is unconstitutionally vague and/or overbroad.

 

II. Factual Background

 

27               On April 6 and 11, 1988, Canadian Pacific Limited ("CP") conducted controlled burns of the dry grass and weeds on its railway right-of-way in the town of Kenora, Ontario.  The purpose of the controlled burns was to clear the right-of-way of combustible material which posed a potential fire hazard.  Both burns discharged a significant amount of thick, dark smoke, which adversely affected the health and property of nearby residents.  One resident suffered an asthma attack in his driveway after being exposed to the smoke.  The smoke filled the home of another man, with the result that he had to clean the interior walls and furniture thoroughly.  Another resident discovered that the shrubs, grass and trees in her backyard had been damaged by the fire and smoke.

 

28               The smoke from the April 11, 1988 controlled burn was not only injurious to the health and property of several Kenora residents, but also hampered visibility on a 200-foot stretch of an adjacent road.  One driver was forced to engage his vehicle lights and brakes because the smoke was so heavy that he was unable to see the other side of the road.

 

29               Following complaints from residents of the town, CP was charged with unlawfully discharging or permitting the discharge of a contaminant, namely smoke, into the natural environment that was likely to cause an adverse effect, contrary to s. 13(1)(a) of the Ontario EPA.

 

30               On October 22, 1991, CP was acquitted by Daub J.P. of the Provincial Offences Court of Ontario, who concluded that, although the respondent had established the essential elements of the offence under s. 13(1)(a) EPA, the appellant's defence of due diligence raised a reasonable doubt.  On June 22, 1992, the respondent's appeal to the Ontario Court of Justice, Provincial Division, was allowed, and CP's acquittal was overturned.

 

31               CP appealed to the Ontario Court of Appeal, raising two constitutional issues.  First, CP advanced an interjurisdictional immunity claim, arguing that, because it is a federal undertaking, s. 13(1)(a) of the Ontario EPA is not constitutionally applicable to emissions from controlled burns on its railroad right-of-way.  Second, CP alleged that s. 13(1)(a) was unconstitutionally vague, and therefore in violation of s. 7 of the Charter.  On May 19, 1993, the Court of Appeal dismissed CP's appeal.

 

32               CP then appealed both constitutional issues to this Court.  In reasons delivered from the bench on January 24, 1995, this Court dismissed the interjurisdictional immunity claim, finding that the Privy Council decision in Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367, was determinative that s. 13(1)(a) was constitutionally applicable to CP in the circumstances of this case.  Judgment on the s. 7 claim was reserved.

 

III.  Relevant Statutory Provisions

 

Environmental Protection Act, R.S.O. 1980, c. 141, as amended S.O. 1983, c. 52:

 

                   1. -- (1)  In this Act,

 

                                                                    ...

 

(c)"contaminant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from the activities of man that may,

 

(i)impair the quality of the natural environment for any use that can be made of it,

 

(ii)cause injury or damage to property or to plant or animal life,

 

(iii)cause harm or material discomfort to any person,

 

(iv)adversely affect the health or impair the safety of any person,

 

(v)render any property or plant or animal life unfit for use by man;

 

(vi)cause loss of enjoyment of normal use of property, or

 

(vii)interfere with the normal conduct of business.

 

(k)"natural environment" means the air, land and water, or any combination or part thereof, of the Province of Ontario....

 

                   13. -- (1)  Notwithstanding any other provision of this Act or the regulations, no person shall deposit, add, emit or discharge a contaminant or cause or permit the deposit, addition, emission or discharge of 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;

 

(b)causes or is likely to cause injury or damage to property or to plant or animal life;

 

(c)causes or is likely to cause harm or material discomfort to any person;

 

(d)adversely affects or is likely to adversely affect the health of any person;

 

(e)impairs or is likely to impair the safety of any person;

 

(f)renders or is likely to render any property or plant or animal life unfit for use by man;

 

(g)causes or is likely to cause loss of enjoyment of normal use of property; or

 

(h)interferes or is likely to interfere with the normal conduct of business.

 

                   (2)  Clause (1)(a) does not apply to animal wastes disposed of in accordance with normal farming practices.

 

IV.  Decisions Below

 

(1)  Daub J.P.

 

33               Daub J.P. agreed that s. 13(1)(a) EPA could apply to an almost limitless number of possible circumstances, but did not think that the provision was indefinite or uncertain.  He observed that it would be impossible for the legislature to codify each circumstance in which the provision might apply, and that it would be the task of the courts to interpret and apply the provision in each case.

 

34               Moreover, Daub J.P. relied on the decision of the United States Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), as adopted by the Ontario Court of Appeal in R. v. Morgentaler (1985), 52 O.R. (2d) 353, for the proposition that a party may not allege vagueness where that party's conduct is clearly proscribed by the challenged legislative enactment.  In Daub J.P.'s view, CP's conduct in Kenora on April 6 and 11, 1988 was prohibited by s. 13(1)(a) EPA, and CP could not therefore raise a vagueness claim against the provision.

 

(2)Fraser Prov. Div. J., Ontario Court (Provincial Division) (1992), 9 C.E.L.R. (N.S.) 26

 

35               Fraser Prov. Div. J. agreed with the conclusion reached by Daub J.P.  He stated at p. 31 that "Section 13 does make it clear to any person of average intelligence what conduct is being prohibited".

 

(3)The Ontario Court of Appeal (1993), 13 O.R. (3d) 389

 

36               The Ontario Court of Appeal unanimously rejected CP's vagueness claim.  Relying on the decision of this Court in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, the court sought to determine whether s. 13(1)(a) EPA provided sufficient guidance for legal debate.  The court also determined that a deferential approach should be employed in light of the important social objectives of the EPA.

 

37               Like Daub J.P., the court relied upon the decision of the United States Supreme Court in Hoffman Estates, supra, and concluded that CP could not rely on hypothetical examples in support of its vagueness claim.  It framed the issue as whether, "in the light of the circumstances of this case" (p. 400), s. 13(1)(a) is unconstitutionally vague.

 

38               The court then observed that there are three essential elements which must be proved by the Crown under s. 13(1)(a):  (1) the Crown must prove that the defendant discharged or permitted the discharge of a contaminant; (2) the Crown must prove that the contaminant was discharged into the natural environment; and (3) the Crown must prove that the discharge of the contaminant was likely to cause impairment of the quality of the natural environment.  The Court concluded that the terms "discharge", "contaminant", "natural environment" and "impairment" provided sufficient guidance for legal debate, and that the test developed by this Court in Nova Scotia Pharmaceutical Society, supra, was satisfied.

 

V.  Analysis

 

(1)  Introduction

 

39               CP alleges that s. 13(1)(a) EPA is unconstitutionally vague and overbroad, and thereby infringes s. 7 of the Charter.  Section 13(1)(a) states:

 

                   13. -- (1)  Notwithstanding any other provision of this Act or the regulations, no person shall deposit, add, emit or discharge a contaminant or cause or permit the deposit, addition, emission or discharge of 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....

 

In the courts below, CP's vagueness claim involved a general challenge to s. 13(1)(a) in its entirety.  In this Court, however, CP's claim specifically challenges the expression "for any use that can be made of [the natural environment]".  CP submits that this element of s. 13(1)(a) is so vague and broad that it fails to provide an intelligible standard that would enable citizens to regulate their conduct.

 

40               I would note that s. 13(1)(a) EPA was amended in 1988 (S.O. 1988, c. 54, s. 10) and later renumbered as s. 14(1) (R.S.O. 1990, c. E.19).  That provision states:

 

                   14. -- (1)  Despite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect. 

 

"Adverse effect" is defined in s. 1(1) of the 1988 Act, and includes "impairment of the quality of the natural environment for any use that can be made of it" (s. 1(1)(a)).  Therefore, the issue raised by CP in relation to the old s. 13(1)(a) EPA is directly relevant to ss. 14(1) and 1(1)(a) of the revised Act.

 

41               Section 13(1)(a) constitutes a broad and general pollution prohibition.  In this respect, it is not unusual, as the EPA contains several broadly worded prohibitions.  For example, Part VIII of the EPA prohibits "littering", and "litter" is broadly defined in s. 73 to include,

 

... any material left or abandoned in a place other than a receptacle or place intended or approved for receiving such material and "littering" has a corresponding meaning.  [Emphasis added.]

 

Another example is found in s. 23(2) EPA, which prohibits the discharge or deposit of "any waste" upon or over the ice over any water.  "Waste" is defined in s. 23(1)(c) as "human excrement or any refuse" (emphasis added).

 

42               Environmental protection laws in other provinces contain similarly broad pollution prohibitions.  Nova Scotia's Environmental Protection Act, R.S.N.S. 1989, c. 150, prohibits "pollution" generally (s. 23(1)), and "pollution" is defined in part as a "detrimental variation or alteration" (s. 3(n)) "that causes or is likely to cause impairment of the quality of the environment for any use that can be made of it..." (s. 3(f)(i)(A)).  Quebec's Environment Quality Act, R.S.Q. 1977, c. Q-2, contains the following prohibition:

 

20.  No one may emit, deposit, issue or discharge or allow the emission, deposit issuance or discharge into the environment of a contaminant in a greater quantity or concentration than that provided for by regulation of the Gouvernement.

 

                   The same prohibition applies to the emission, deposit, issuance or discharge of any contaminant the presence of which in the environment is prohibited by regulation of the Gouvernement or is likely to affect the life, health, safety, welfare or comfort of human beings, or to cause damage to or otherwise impair the quality of the soil, vegetation, wild life or property.  [Emphasis added.]

 

Saskatchewan's The Environmental Management and Protection Act, S.S. 1983-84, c. E-10.2, as am. by S.S. 1992, c. 49, s. 5, is more succinct:  "no person shall pollute or cause any pollution" (s. 34.1), with "pollution" defined very broadly in s. 2(v).  Examples of similarly broad pollution prohibitions can be found in s. 8 of the Waters Protection Act, R.S.N. 1990, c. W-5; s. 20 of the Environmental Protection Act, R.S.P.E.I. 1988, c. E-9; s. 5.3 of the Clean Environment Act, R.S.N.B. 1973, c. C-6, ad. by S.N.B. 1989, c. 52, s. 6 and am. by S.N.B. 1993, c. 13, s. 5; and s. 98 of the Environmental Protection and Enhancement Act, S.A. 1992, c. E‑13.3.  Moreover, the Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), contains a very broad prohibition against ocean dumping, which makes it a crime to dump "any substance" from "any ship, aircraft, platform or other anthropogenic structure" in "any area of the sea" over which Canada exercises jurisdiction (s. 67).

 

43               What is clear from this brief review of Canadian pollution prohibitions is that our legislators have preferred to take a broad and general approach, and have avoided an exhaustive codification of every circumstance in which pollution is prohibited.  Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification.  Environmental protection legislation has, as a result, been framed in a manner capable of responding to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation.  This has left such legislation open to allegations of unconstitutional vagueness:  R. v. Lopes (1988), 3 C.E.L.R. (N.S.) 78 (Ont. Dist. Ct.); R. v. Royal Pacific Seafarms Ltd. (1989), 7 W.C.B. (2d) 355 (B.C. Co. Ct.); Québec (P.G.) v. Noranda Inc. (Mines Noranda Ltée) (1989), 4 C.E.L.R. (N.S.) 158 (Que. Ct. (crim. div.)); R. v. Algoma Steel Corp. (1991), 14 W.C.B. (2d) 264 (Ont. Ct. (Prov. Div.)); R. v. Satellite Construction Ltd. (1992), 8 C.E.L.R. (N.S.) 215 (N.S. Prov. Ct.), and R. v. Commander Business Furniture Inc. (1992), 9 C.E.L.R. (N.S.) 185 (Ont. Ct. (Prov. Div.)).  In none of these cases, however, has the s. 7 vagueness claim succeeded.

 

44               CP's vagueness and overbreadth claims in relation to s. 13(1)(a) of the Ontario EPA could, in my view, be raised against any of the provincial and federal pollution prohibitions which I have mentioned above.  Thus, a finding in CP's favour in the instant case would place these prohibitions, and potentially many others, in constitutional jeopardy.  Such a finding would obviously impede the ability of the legislature to provide for environmental protection, and would constitute a significant social policy setback.  However, for the reasons developed below, I find that CP's constitutional challenge must fail.  The terms of s. 13(1)(a) EPA are not vague, but in fact apply quite clearly to pollution activity which is appropriately the subject of legislative prohibition.  Moreover, while s. 13(1)(a) applies broadly, the objective of environmental protection is ambitious in scope.  The legislature is justified in choosing equally ambitious means for achieving this objective.

 

45               In the discussion below, I will consider in detail the vagueness aspect of CP's constitutional challenge.  I will then turn briefly to the overbreadth claim.

 

(2)  The Applicable Legal Principles for a Section 7 Vagueness Claim

 

46               In Nova Scotia Pharmaceutical Society, supra, I enunciated the appropriate interpretive approach to a s. 7 vagueness claim.  As I observed there, the principles of fundamental justice in s. 7 require that laws provide the basis for coherent judicial interpretation, and sufficiently delineate an "area of risk".  Thus, "a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate" (p. 643).  This requirement of legal precision is founded on two rationales:  the need to provide fair notice to citizens of prohibited conduct, and the need to proscribe enforcement discretion.

 

47               In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision.  This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an "area of risk".  This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct.  In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the "mediating role" of the judiciary (Nova Scotia Pharmaceutical Society, supra, at p. 641).  Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision.  Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate.

 

48               The mediating role of the judiciary is of particular importance in those situations where practical difficulties prevent legislators from framing legislation in precise terms.  On this point, I find helpful the comments of Andrew S. Butler, "A Presumption of Statutory Conformity with the Charter" (1993), 19 Queen's L.J. 209, at pp. 225-27:

 

                   Let us consider the practical difficulties facing legislators in giving statutory expression to their intentions.  One difficulty faced in the drafting of statutes is meeting the demand that laws operate prospectively.  Legislatures cannot as a rule set down ex post facto provisions, which identify types of fact situations intended to be caught by a particular enactment, distinguished from others.  Accordingly, legislators face a dilemma:  they must pay particular attention to and identify the core commonalities of the fact situations they do wish to legislate against (which become embodied within statutes), while at the same time not neglecting to anticipate and provide for variations on those fact situations, which may occur in the future....  The usual solution to this dilemma is to fall back on general language, which is adequate to cover the particular situations envisaged, and which holds out the possibility of catching unforeseen variations.  This strategy can often lead to broadly expressed statutory language, with the danger that it may apply to too much activity -- the problem of overbreadth -- or that it will not be expressed in concrete enough terms -- the problem of vagueness.  In such instances, however, the expectation of legislators will invariably be that the courts will flesh-out the generality of the provisions through interpretation based upon experience.  [Emphasis added; italics in original text.]

 

49               The use of broad and general terms in legislation may well be justified, and s. 7 does not prevent the legislature from placing primary reliance on the mediating role of the judiciary to determine whether those terms apply in particular fact situations.  I would stress, however, that the standard of legal precision required by s. 7 will vary depending on the nature and subject matter of a particular legislative provision.  As I stated in Nova Scotia Pharmaceutical Society, supra, at p. 627:

 

Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretive role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist....

 

In particular, a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, in order to avoid impeding the state's ability to pursue and promote those objectives (at p. 642).  The s. 7 doctrine of vagueness must not be used to straight-jacket the state in social policy fields.

 

(3)  Application of the Vagueness Principles in the Instant Case

 

50               CP alleges that s. 13(1)(a) is so open-ended that it constitutes a "standardless sweep".  The issue to be resolved is whether s. 13(1)(a) provides the basis for coherent legal debate as to what constitutes a "contaminant", an "impairment" and a "use" of the "natural environment".  In other words, can the scope of s. 13(1)(a) be reasonably interpreted, in order for an "area of risk" to be discerned?

 

51               In developing the interpretive context for a s. 7 vagueness analysis, it is first necessary to have regard to the purpose and subject matter of the impugned legislative provision.  The purpose of the EPA, as stated in s. 2, "is to provide for the protection and conservation of the natural environment".  The social importance of environmental protection is obvious, yet the nature of the environment does not lend itself to precise codification.  On this point, the comments of the Law Reform Commission of Canada, Crimes Against the Environment (1985), Working Paper 44, are apposite.  There, the Commission proposed the formulation of a Criminal Code prohibition against environmental pollution, and at p. 46 recommended that the prohibition should be framed in "general terms":

 

                   To be as effective as possible, a Criminal Code prohibition against environmental pollution should be formulated in general terms as regards the substances, contaminants, and range of activities which could fall within its scope.  The advantage thereby gained is that the offence could be as all-inclusive as possible, not excluding as a potential focus of criminal liability a specific form of conduct, a particular element of the environment, or a specific substance or contaminant only because they were not expressly referred to in the Code offence.  If each substance, emission standard or type of activity had to be expressly listed in a Criminal Code offence, it would have to be revised each time a new pollutant, hazard or activity not originally foreseen came into existence, and each time a new emission standard was formulated, or an existing one revised....

 

                   To be as effective as possible, a Code prohibition of pollution should accommodate a wide range of activities.  The environment and consequently human life and health, can after all, be harmed or endangered either by direct acts or in the course of many kinds of activity.  The primary harm and danger points as regards a wide variety of potentially hazardous goods, wastes and contaminants are their manufacture, their transportation, their use, their storage and their disposal.  In the interests of both comprehension and specificity, all these activities and stages which could in some circumstances, attract criminal liability, should be expressly included in the formulation of the Code offence.

 

52               In the context of environmental protection legislation, a strict requirement of drafting precision might well undermine the ability of the legislature to provide for a comprehensive and flexible regime.  As the Law Reform Commission suggests, then, generally framed pollution prohibitions are desirable from a public policy perspective.  This explains why s. 13(1)(a) prohibits any emission of a contaminant which causes or is likely to cause impairment of the quality of the natural environment for any use that can be made of it.  In my view, the generality of s. 13(1)(a) ensures flexibility in the law, so that the EPA may respond to a wide range of environmentally harmful scenarios which could not have been foreseen at the time of its enactment.

 

53               Moreover, the precise codification of environmental hazards in environmental protection legislation may hinder, rather than promote, public understanding of what conduct is prohibited, and may fuel uncertainty about the "area of risk" created by the legislation.  This is a point raised in Nova Scotia Pharmaceutical Society, supra, at p. 642.  In the area of environmental protection, legislators have two choices.  They may enact detailed provisions which prohibit the release of particular quantities of enumerated substances into the natural environment.  Alternatively, they may choose a more general prohibition of "pollution", and rely on the courts to determine whether, in a particular case, the release of a substance into the natural environment is of sufficient magnitude to attract legislative sanction.  The latter option is, of course, more flexible and better able to accommodate developments in our knowledge about environmental protection.  However, a general enactment may be challenged (as in the instant case) for failing to provide adequate notice to citizens of prohibited conduct.  Is a very detailed enactment preferable?  In my view, in the field of environmental protection, detail is not necessarily the best means of notifying citizens of prohibited conduct.  If a citizen requires a chemistry degree to figure out whether an activity releases a particular contaminant in sufficient quantities to trigger a statutory prohibition, then that prohibition provides no better fair notice than a more general enactment.  The notice aspect of the vagueness analysis must be approached from an objective point of view:  would the average citizen, with an average understanding of the subject matter of the prohibition, receive adequate notice of prohibited conduct?  If specialized knowledge is required to understand a legislative provision, then citizens may be baffled.

 

54               Of course, the question remains as to whether sufficient notice is provided to meet the standard demanded by s. 7.  On this point, in Nova Scotia Pharmaceutical Society, supra, I observed that there are two aspects to the fair notice requirement:  procedural and substantive.  Procedural notice involves the mere fact of bringing the text of a law to the attention of citizens.  As I noted at p. 633, the idea of giving fair notice to citizens would be rather empty if procedural notice were sufficient, particularly since citizens are presumed to know the law.  Therefore, whether or not citizens are familiar with the text of a law is not a central concern of vagueness analysis.  Instead, the focus of the analysis is the substantive aspect of fair notice, which I described at pp. 633-34 as "an understanding that some conduct comes under the law".

 

55               Whether citizens appreciate that particular conduct is subject to legislative sanction is inextricably linked to societal values.  As I stated in Nova Scotia Pharmaceutical Society, supra, at p. 634:

 

The substantive aspect of fair notice is therefore 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.

 

Societal values are highly relevant in assessing whether a general pollution prohibition, such as s. 13(1)(a) EPA, provides fair notice to citizens of prohibited conduct.  It is clear that over the past two decades, citizens have become acutely aware of the importance of environmental protection, and of the fact that penal consequences may flow from conduct which harms the environment.  Recent environmental disasters, such as the Love Canal, the Mississauga train derailment, the chemical spill at Bhopal, the Chernobyl nuclear accident, and the Exxon Valdez oil spill, have served as lightning rods for public attention and concern.  Acid rain, ozone depletion, global warming and air quality have been highly publicized as more general environmental issues.  Aside from high-profile environmental issues with a national or international scope, local environmental issues have been raised and debated widely in Canada.  Everyone is aware that individually and collectively, we are responsible for preserving the natural environment.  I would agree with the Law Reform Commission of Canada, Crimes Against the Environment, supra, which concluded at p. 8 that:

 

... a fundamental and widely shared value is indeed seriously contravened by some environmental pollution, a value which we will refer to as the right to a safe environment.

 

                   To some extent, this right and value appears to be new and emerging, but in part because it is an extension of existing and very traditional rights and values already protected by criminal law, its presence and shape even now are largely discernible.  Among the new strands of this fundamental value are, it may be argued, those such as quality of life, and stewardship of the natural environment.  At the same time, traditional values as well have simply expanded and evolved to include the environment now as an area and interest of direct and primary concern.  Among these values fundamental to the purposes and protections of criminal law are the sanctity of life, the inviolability and integrity of persons, and the protection of human life and health.  It is increasingly understood that certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health.  [Emphasis in original text.]

 

Not only has environmental protection emerged as a fundamental value in Canadian society, but this has also been recognized in legislative provisions such as s. 13(1)(a) EPA.

 

56               In 1988, when the pollution in the instant case took place, few citizens would have been aware of the actual terms of s. 13(1)(a) EPA.  However, the average citizen in Ontario would have known that pollution was statutorily prohibited.  It therefore would not have come as a surprise to citizens that the EPA prohibited the emission of contaminants into the environment that were likely to impair a use of the natural environment.  In my view, the purpose and terms of s. 13(1)(a) are so closely related to the societal value of environmental protection that substantive notice of the prohibition in s. 13(1)(a) is easy to demonstrate.

 

57               In addition to the purpose and subject matter of s. 13(1)(a) EPA, and the societal values underlying the provision, the interpretive context in the instant case is further coloured by the regulatory nature of the offence contained in s. 13(1)(a).  In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, Cory J. held at p. 227 that, "the contextual approach requires that regulatory and criminal offences be treated differently for the purposes of Charter review", with the result that regulatory offences are subject to a lower standard of Charter scrutiny.  He offered two justifications for differential treatment.  The first, the licensing justification, is not implicated in the instant case.  However, the second, the vulnerability justification, is highly relevant.  As Cory J. explained, at p. 233:

 

                   The realities and complexities of a modern industrial society coupled with the very real need to protect all of society and particularly its vulnerable members, emphasize the critical importance of regulatory offences in Canada today.  Our country simply could not function without extensive regulatory legislation.  The protection provided by such measures constitutes a second justification for the differential treatment, for Charter purposes, of regulatory and criminal offences.

 

Cory J. emphasized the principle that the Charter should not be used as an instrument to roll back legislative protections enacted on behalf of the disadvantaged, vulnerable and comparatively powerless members of society.  He then reached the following conclusion, at p. 234:

 

                   Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves.  The extent and importance of that role has increased continuously since the onset of the Industrial Revolution.  Before effective workplace legislation was enacted, labourers -- including children -- worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno.  It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century.  The differential treatment of regulatory offences is justified by their common goal of protecting the vulnerable.

 

58               In the environmental context, each one of us is vulnerable to the health and property damage caused by pollution.  Where the legislature provides protection through regulatory statutes such as the EPA, it is appropriate for courts to take a more deferential approach to the Charter review of the offences contained in such statutes.

 

59               I therefore conclude that the purpose and subject matter of s. 13(1)(a) EPA, the societal values underlying it, and its nature as a regulatory offence, all inform the analysis of CP's s. 7 vagueness claim.  Legislators must have considerable room to manoeuvre in the field of environmental regulation, and s. 7 must not be employed to hinder flexible and ambitious legislative approaches to environmental protection.

 

60               Keeping this in mind, it is now necessary to consider the actual terms of s. 13(1)(a).  In order to secure a conviction under s. 13(1)(a), the Crown must prove three elements:  (1) that the accused has emitted, or caused or permitted the emission of a contaminant; (2) that the contaminant was emitted into the natural environment; and (3) that the contaminant caused or was likely to cause the impairment of the quality of the natural environment for any use that can be made of it.

 

61               The term "contaminant" is defined in s. 1(1)(c) EPA as:

 

(c). . . any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from the activities of man that may,

 

(i)impair the quality of the natural environment for any use that can be made of it,

 

                   (ii)cause injury or damage to property or to plant or animal life,

 

(iii)cause harm or material discomfort to any person,

 

(iv)adversely affect the health or impair the safety of any person,

 

(v)render any property or plant or animal life unfit for use by man;

 

(vi)cause loss of enjoyment of normal use of property, or

 

(vii)interfere with the normal conduct of business.

 

The term "natural environment" is defined in s. 1(1)(k) as "the air, land and water, or any combination or part thereof, of the Province of Ontario".  Subject to my comments below, which are relevant to the interpretation of s. 1(1)(c)(i), I have no trouble concluding that these statutory definitions provide the basis for legal debate as to what constitutes a "contaminant" and the "natural environment".

 

62               The term "impairment" is not defined in the EPA.  However, I agree with Galligan J.A. in the court below, who found it significant that the concept of "impairment" has been the subject of legal debate in the context of drinking and driving for decades.  In the recent decision of the Ontario Court of Appeal in R. v. Stellato (1993), 78 C.C.C. (3d) 380, aff'd, [1994] 2 S.C.R. 478, that court had the opportunity to review the legal debate surrounding the interpretation of "impaired", as the term is used in s. 253(a) of the Criminal Code (operation of a motor vehicle while impaired).  Labrosse J.A., writing for the court at p. 382, observed that some courts have adopted an interpretation of "impaired" which requires a "marked departure from what is usually considered as the normal" (R. v. McKenzie (1955), 111 C.C.C. 317 (Alta. Dist. Ct.); R. v. Smith (1992), 73 C.C.C. (3d) 285 (Alta. C.A.)), whereas other courts have concluded that the term "impaired" covers even a slight departure from the norm (R. v. Winlaw (1988), 13 M.V.R. (2d) 112 (Ont. Dist. Ct.); R. v. Bruhjell, [1986] B.C.J. No. 746 (C.A.); R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269 (P.E.I.C.A.)).  Labrosse J.A. himself favoured the latter interpretation, at p. 384:

 

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.  If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

 

In my view, the decision in Stellato demonstrates conclusively that the term "impairment" provides the basis for legal debate.

 

63               I next turn to the "use" requirement in s. 13(1)(a), which is the focus of CP's s. 7 challenge.  It is notable that the existence of the "use" condition actually narrows the scope of s. 13(1)(a), and that CP is therefore alleging vagueness in relation to an element of s. 13(1)(a) which operates to limit CP's liability.  If the "use" element were not present, then s. 13(1)(a) would cover a much broader range of pollution activity.  However, the "use" condition requires the Crown to establish not only that a polluting substance has been released, but also that the release of the substance has actually impeded, or is likely to impair, someone's or something's "use" of the environment.  The instant case illustrates this point.  If CP had employed controlled fires on its right-of-way in a remote and unpopulated region of Northern Ontario, and wind conditions had caused the smoke to spread beyond the confines of CP's property, then CP could argue that it did not infringe s. 13(1)(a) because no discernible "use" of the environment had been, or was likely to have been, impaired.  However, the smoke in Kenora filled residential homes, and diminished visibility on nearby roads.  Thus, identifiable human "uses" were affected by the smoke, resulting in CP's liability under s. 13(1)(a).

 

64               The term "use" is not defined in the EPA.  Nevertheless, I am of the view that judicial interpretation of what constitutes a "use" of the natural environment is easily accomplished.  Various interpretive techniques are of assistance.  First, as I observed in Nova Scotia Pharmaceutical Society, supra, at pp. 647-48, legislative provisions must not be considered in a vacuum.  The content of a provision "is enriched by the rest of the section in which it is found and by the mode of inquiry adopted by courts as they have ruled under it".  Thus, it is significant that the expression challenged by CP as being vague (i.e., "for any use that can be made of [the natural environment]") appears in s. 13(1)(a) alongside various other environmental impacts which attract liability.  It is apparent from these other enumerated impacts that the release of a contaminant which poses only a trivial or minimal threat to the environment is not prohibited by s. 13(1).  Instead, the potential impact of a contaminant must have some significance in order for s. 13(1) to be breached.  The contaminant must have the potential to cause injury or damage to property or to plant or animal life (s. 13(1)(b)), cause harm or material discomfort (s. 13(1)(c)), adversely affect health (s. 13(1)(d)), impair safety (s. 13(1)(e)), render property or plant or animal life unfit for use by man (s. 13(1)(f)), cause loss of enjoyment of normal use of property (s. 13(1)(g)), or interfere with the normal conduct of business (s. 13(1)(h)).  The choice of terms in s. 13(1) leads me to conclude that polluting conduct is only prohibited if it has the potential to impair a use of the natural environment in a manner which is more than trivial.  Therefore, a citizen may not be convicted under s. 13(1)(a) EPA for releasing a contaminant which could have only a minimal impact on a "use" of the natural environment.

 

65               Second, interpreting the concept of "use" in s. 13(1)(a) in a restrictive manner is supported not only by its place in the legislative scheme, but also by the principle that a statute should be interpreted to avoid absurd results.  Pierre‑André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), observes at pp. 383-84 that consideration of the consequences of competing interpretations will assist the courts in determining the actual meaning intended by the legislature.  Since it may be presumed that the legislature does not intend unjust or inequitable results to flow from its enactments, judicial interpretations should be adopted which avoid such results.  One method of avoiding absurdity is through the strict interpretation of general words (at p. 330).  Driedger on the Construction of Statutes (3rd ed. 1994) states the relationship between the absurdity principle and strict interpretation as follows, at p. 94:  "Absurdity is often relied on to justify giving a restricted application to a provision".  Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature.  In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision.  In this respect, the absurdity principle is closely related to the maxim, de minimis non curat lex (the law does not concern itself with trifles).  The rationale of this doctrine was explained by Sir William Scott in the case of The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482, at pp. 269-70 and p. 1484:

 

The Court is not bound to a strictness at once harsh and pedantic in the application of statutes.  The law permits the qualification implied in the ancient maxim De minimis non curat lex. -- Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe.  If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.

 

The absurdity, strict interpretation and de minimis principles assist in narrowing the scope of the expression "for any use that can be made of [the natural environment]", and determining the area of risk created by s. 13(1)(a) EPA.  Where an accused has released a substance into the natural environment, the legal debate must focus on whether an actual or likely "use" of the "natural environment" has been "impaired" by the release of a "contaminant".  This legal debate is clearly facilitated by the application of generally accepted interpretive principles.  In particular, these principles demonstrate that s. 13(1)(a) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable.  A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.

 

66               Third, reference may be made to judicial consideration of the term "use" in contexts other than environmental law.  On this point, it is worth observing that the "use" concept has been judicially considered and interpreted in a variety of different contexts, examples of which include:  "use" of property under the Income Tax Act (Qualico Developments Ltd. v. M.N.R. (1984), 51 N.R. 387 (F.C.A.)); "use" of a patent (Galt Art Metal Co. v. Pedlar People Ltd., [1935] O.R. 126 (H.C.)); "use" of a motor vehicle (Elias v. Insurance Corp. of British Columbia (1992), 95 D.L.R. (4th) 303 (B.C.S.C.), Watts v. Centennial Insurance Co. (1967), 62 W.W.R. 175 (B.C.S.C.)); "use" of a place as a common gaming house (Rockert v. The Queen, [1978] 2 S.C.R. 704); "use" of writing purporting to be an affidavit (Stevenson v. R. (1980), 19 C.R. (3d) 74 (Ont. C.A.)); "use" for human habitation (Conlin v. Prowse (1993), 109 D.L.R. (4th) 243 (Ont. Ct. (Gen. Div.))).

 

67               A review of these cases indicates that courts have generally looked to dictionary definitions of the word "use" as a starting point in the interpretive process.  However, the proper legal interpretation of "use" is context- and fact‑specific, and this may require a refinement of the definition in a particular circumstance.  For example, in Pickering Twp. v. Godfrey, [1958] O.R. 429, the Ontario Court of Appeal was faced with the issue of whether the digging of a gravel pit, for the purpose of selling gravel, was a "use of land" that could be regulated or prohibited by municipal by-law.  The answer depended on the interpretation of the word "use" in s. 390 of The Municipal Act, R.S.O. 1950, c. 243.  Morden J.A., writing for the court, held as follows at p. 437:

 

                   Counsel did not refer to any decisions interpreting the words "use of land" as they appear in s. 390 and I could find none.  The dictionary definitions of "use" are numerous and diverse.  An examination of them and some authorities, to which I will refer, has led me to the opinion that the word when used in conjunction with such commodities as food and water connotes the idea of consumption, but when applied to more durable forms of property means the employment of the property for enjoyment, revenue or profit without in any way otherwise diminishing or impairing the property itself.

 

Morden J.A. went on to find that the grant of power under s. 390 to regulate the "use of land" could not be interpreted to allow municipalities to prohibit an owner from selling his land or any part of it.  Therefore, a by-law passed under s. 390 could not prevent a land owner from digging and removing gravel or other substances from his land.

 

68               A similar contextual and fact-sensitive analysis is required in interpreting the expression "for any use that can be made of [the natural environment]".  The kinds of environmental "uses" that can be made of a particular area, and the question of whether the release of a contaminant has impaired these "uses" in a manner which is more than trivial or minimal, will involve certain factual inquiries.  The character of the neighbourhood in which the contaminant has been released, the nature of the released contaminant, and the amount released, will all be important factors.  The decision of Hackett Prov. Div. J. in Commander Business Furniture Inc., supra, illustrates this kind of factual inquiry.  In that case, the defendant company was charged under s. 13(1) EPA (as amended, S.O. 1988, c. 54, s. 10; now s. 14(1), R.S.O. 1990, c. E.19) with emitting "volatile organic compound" emissions which caused a recurrent odour problem in a nearby residential neighbourhood.  Hackett Prov. Div. J. heard testimony from six residents concerning the odours.  As well, a scientific survey was admitted into evidence, which confirmed the nature and extent of the problem.  Hackett Prov. Div. J. considered this evidence, along with the character of the neighbourhood, and reached the following conclusion, at p. 207:

 

                   The residential area in question is adjacent to a commercial/industrial strip in which Commander is located.  I find that "normal use of property" in this residential area must include the full use of yards and community parks.  As set forth earlier, it is clear that these six residents lost the full use of their own yards and community parks.  When the odour occurred, many of them described having to go inside or stay indoors.  In my view, these are not trivial or inconsequential effects, as argued by the defence.  On all of the evidence, including the frequency, nature and duration of these experiences, I conclude that the Crown has proved beyond a reasonable doubt that these residents significantly lost the normal use of property which would be reasonable in such a mixed-use neighbourhood at the relevant time.

 

Hackett Prov. Div. J. thus determined that a human "use" of property had been impaired, and that this impairment was neither trivial nor inconsequential.  Such a factual and legal inquiry is precisely the kind in which courts engage on a daily basis.

 

69               Extrinsic materials provide additional assistance in interpreting the term "use" in the environmental context.  In particular, I have in mind the 1986 Report of the Experts Group on Environmental Law of the World Commission on Environment and Development (WCED), entitled Legal Principles for Environmental Protection and Sustainable Development (U.N. Doc. WCED/86/23/Add. 1 (1986), A/42/427, Annex I).  This Report was prepared by 13 legal experts, who were appointed by the United Nations-mandated WCED.  In it, the Experts Group formulated 22 legal principles, which were intended to serve as a guide for the development of domestic environmental protection legislation.  For the purposes of the instant case, the most significant principle is Art. 4, which requires states to take measures "aimed at preventing or abating interferences with natural resources or the environment".  In the "Use of Terms" section of their Report, the Experts Group provided the following definition of "environmental interference":

 

                   (f)  "environmental interference" means any impairment of human health, living resources, ecosystems, material property, amenities or other legitimate uses of a natural resource or the environment caused, directly or indirectly, by man through polluting substances, ionizing radiation, noise, explosions, vibration or other forms of energy, plants, animals, diseases, flooding, sand-drift or other similar means; [Emphasis added.]

 

The Experts Group also adopted the following definition of the expression, "use of a natural resource":

 

                   (a)  "use of a natural resource" means any human conduct, which, directly or indirectly, takes advantage of the benefits of a natural resource in the form of preservation, exploitation, consumption or otherwise of the natural resource, in so far as it does not result in an environmental interference as defined in Paragraph (f);

 

In my view, it is significant that 13 experts in environmental law, working under a United Nations mandate, adopted the "use" concept as a legal principle for domestic environmental law, and proceeded to define it in their Report.  This is evidence that the term "for any use that can be made of the [natural environment]" is capable of forming the basis for legal debate.  Moreover, where a court is considering the application of s. 13(1)(a) EPA in a particular fact situation, it would be entitled to have recourse to the definition of "use" adopted by the Experts Group, since this definition has important persuasive value.

 

70               Thus, after taking into account interpretive principles and aids which narrow and define the scope of the term "use" in the environmental context, I see no reason to believe that the "use" concept in s. 13(1)(a) poses any greater interpretive challenge to the judiciary than it does in other contexts.  Therefore, I conclude that the scope of s. 13(1)(a) EPA is reasonably delineated, and that legal debate can occur as to the application of the provision in a specific fact situation.  This is all that s. 7 of the Charter requires.

                                

(4)  The Role of "Reasonable Hypotheticals" in Section 7 Vagueness Analysis

 

71               In the instant case, Daub J.P., Fraser J. and the Ontario Court of Appeal all concluded that CP could not rely on hypotheticals involving third parties to demonstrate the vagueness of s. 13(1)(a) EPA.  In reaching this conclusion, the lower courts relied on the ruling of the United States Supreme Court in Hoffman Estates, supra, in which the court held, at p. 495, that "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."  Prior to the instant case, this position had been adopted by the Ontario Court of Appeal in Morgentaler, supra, R. v. Zundel (1987), 58 O.R. (2d) 129, and R. v. LeBeau (1988), 41 C.C.C. (3d) 163.

 

72               Like the lower courts, I have no difficulty in concluding that CP's conduct in Kenora on April 6 and 11, 1988 fell squarely within the pollution prohibition contained in s. 13(1)(a) EPA.  CP emitted noxious smoke which contaminated the natural environment, and which interfered with its use by several home owners and drivers in a manner which was more than trivial or minimal.  In fact, I do not understand CP's argument to be that s. 13(1)(a) is vague in relation to the conduct which gave rise to the charges in the instant case.  CP argues instead that the expression "for any use that can be made of [the natural environment]" is vague because it is not qualified as to time, degree, space or user, and thus fails to delineate clearly an "area of risk" for citizens generally.

 

73               CP is advancing an argument based on peripheral vagueness, which arises where a statute applies without question to a core of conduct, but applies with uncertainty to other activities.  CP's conduct fell within the core of polluting activity prohibited by s. 13(1)(a), yet CP is relying on hypothetical fact situations which fall at the "periphery" of s. 13(1)(a), and to which it is uncertain whether liability attaches.  I would note that the core-periphery problem is encountered in relation to virtually every legislative provision, and is an inevitable result of the imprecision of human language.  This point was raised in Nova Scotia Pharmaceutical Society, supra, at p. 639:

 

Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.

 

The role of the courts, then, is to interpret and clarify the language of an enactment, and thereby determine the area of risk.

 

74               The question then becomes whether CP's s. 7 challenge must necessarily fail because its polluting activity in Kenora on April 6 and 11, 1988 fell within the "core" of conduct prohibited by s. 13(1)(a) EPA.  If I were to agree with the position of the United States Supreme Court in Hoffman Estates, supra, as adopted by the Ontario Court of Appeal, then I would reject CP's attempt to stray beyond its own fact situation in the instant case.

 

75               It may be trite, but nevertheless worth repeating, that while American rights jurisprudence can be of assistance in interpreting provisions of the Charter, Canadian courts should not simply import American constitutional principles into our law.  What may be appropriate in the American constitutional setting may be unacceptable, or even unworkable, in the unique Canadian milieu.  For this reason, the Hoffman Estates principle must be approached with considerable caution.

 

76               A review of American constitutional jurisprudence on the subject of the use of reasonable hypotheticals indicates that the issue has been approached as one of standing.  Christina L. Jadach, "Pre-enforcement Constitutional Challenges to Legislation after Hoffman Estates:  Limiting the Vagueness and Overbreadth Doctrines" (1983), 20 Harv. J. on Legis. 617, explained the standing rationale, at p. 620:

 

                   Generally courts evaluate a statute by considering whether the provision impairs the rights of the complaining party in light of the attending circumstances.  This traditional standing rule prohibits petitioners from invoking rights of third parties in individual claims.

 

In the predecessor case to Hoffman Estates, Parker v. Levy, 417 U.S. 733 (1974), the United States Supreme Court confirmed that an appellant who is alleging unconstitutional vagueness cannot rely on hypothetical fact situations, and at pp. 755-56, supported this conclusion by reference to the traditional American approach to standing in constitutional claims.  In fact, resort to hypothetical fact situations is only possible in the area of overbreadth claims under the First Amendment.  This narrow exception is justified because of the historical pre-eminence of free speech in American constitutional law, and particularly because of the concern that an overly broad limitation on speech will result in the "chilling" of legitimate and valuable expression:  Thornhill v. Alabama, 310 U.S. 88 (1940).

 

77               The traditional hostility of the American courts to the use of hypothetical fact scenarios in constitutional adjudication has not been shared by this Court.  In R. v. Smith, [1987] 1 S.C.R. 1045, and R. v. Goltz, [1991] 3 S.C.R. 485, this Court approved the use of reasonable hypotheses in assessing legislation under s. 12 of the Charter.  Moreover, in R. v. Heywood, [1994] 3 S.C.R. 761, Cory J. held that a court could have resort to reasonable fact scenarios other than that of the particular appellant where overbreadth is alleged under s. 7.

 

78               In light of the different approach taken by this Court in relation to constitutional standing (a matter elaborated upon by Chief Justice Lamer in his concurring reasons), I cannot adopt the rationale underlying the Hoffman Estates principle.  Nevertheless, I take the view that reasonable hypotheticals have no place in the vagueness analysis under s. 7.

 

79               Where a court is faced with a vagueness challenge under s. 7, the focus of the analysis is on the terms of the impugned law.  The court must determine whether the law provides the basis for legal debate and coherent judicial interpretation.  As I stated above, the first task of the court is to develop the full interpretive context surrounding the law, since vagueness should only be assessed after the court has exhausted its interpretive function.  If judicial interpretation is possible, then an impugned law is not vague.  A law should only be declared unconstitutionally vague where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible.  In a situation, such as the instant case, where a court has interpreted a legislative provision, and then has determined that the challenging party's own fact situation falls squarely within the scope of the provision, then that provision is obviously not vague.  There is no need to consider hypothetical fact situations, since it is clear that the law provides the basis for legal debate and thereby satisfies the requirements of s. 7 of the Charter.

 

80               The analysis of overbreadth under s. 7, and of cruel and unusual treatment or punishment under s. 12, are quite different from vagueness analysis.  Where a party alleges that a law is overbroad, or that punishment is cruel and unusual, a court must engage in proportionality analysis.  In Goltz, supra, for example, I discussed the test for determining violations of s. 12 of the Charter, and stated, at p. 498, "that a sentence which is grossly or excessively disproportionate to the wrongdoing would infringe s. 12".  Cory J. asserted a similar proportionality test in Heywood, supra, at p. 793:  "The effect of overbreadth is that in some applications the law is arbitrary or disproportionate".

 

81               Proportionality analysis involves an assessment of whether a law, the terms of which are not vague, applies in a proportionate manner to a particular fact situation.  Inevitably, courts will be required to compare the law with the facts.  In that situation, the use of reasonable hypotheticals will be of assistance, and may be unavoidable (Goltz, supra, at p. 515).

 

82               In the context of vagueness, proportionality plays no role in the analysis.  There is no need to compare the purpose of the law with its effects (as in overbreadth), or to compare the punishment with the wrongdoing (as with cruel and unusual punishment).  A court is required to perform its interpretive function, in order to determine whether an impugned provision provides the basis for legal debate.  Given this, I see no role for the consideration of reasonable hypotheticals in vagueness analysis.

 

(5)  The Overbreadth Claim

 

83               Having dispensed with CP's vagueness claim, it is now necessary to turn to the issue of overbreadth.  In its submissions, CP argued in part that s. 13(1)(a) EPA is vague because it is overbroad.  In light of my reasons above, however, I think that this submission must fail.  

                         

84               Environmental protection is a legitimate concern of government, and as I have already observed, it is a very broad subject matter which does not lend itself to precise codification.  Where the legislature is pursuing the objective of environmental protection, it is justified in choosing equally broad legislative language in order to provide for a necessary degree of flexibility.  Certainly, s. 13(1)(a) captures a broad range of polluting conduct.  However, my reasons in relation to the vagueness claim illustrate that the provision does not capture pollution with only a trivial or minimal impact on a use of the natural environment.  Moreover, the "use" condition limits the application of s. 13(1)(a) by requiring the Crown to establish not only that a polluting substance has been released, but also that an actual or likely use of the environment, which itself has some significance, has been impaired by the release.  Speculative or purely imaginary uses of the environment are not captured by the provision.  These limits on the application of s. 13(1)(a) prevent it from being deployed in situations where the objective of environmental protection is not implicated.  In my view, then, the breadth of s. 13(1)(a) matches the breadth of the objective of environmental protection.  There is no overbreadth.

 

85               In his concurring reasons, Lamer C.J. has concluded that the literal interpretation of s. 13(1)(a) results in overbreadth, since the provision applies on its face to "any conceivable use" of the environment.  He then applies the presumption of constitutionality for the purpose of limiting the scope of s. 13(1)(a).  With respect, I cannot agree that the term "use" has a plain and literal meaning in the context of environmental protection.  The term is open to interpretation, and I prefer a construction which avoids the kinds of absurd applications of s. 13(1)(a) which are identified by Lamer C.J.  In my view, the first step in the overbreadth analysis requires a court to exhaust its interpretive function.  Only then can overbreadth be assessed.  In the instant case, having interpreted s. 13(1)(a) (and in particular, the terms "use" and "impairment"), I have concluded that the appellant's overbreadth claim must fail.

 

86               Before concluding, I wish to add a caveat to my overbreadth analysis.  My reasons should not be taken to endorse the view that the independent principle of overbreadth, as outlined in Heywood, supra, is available to the appellant in the circumstances of this case.  My point is simply that s. 13(1)(a) is clearly not overbroad.  Since neither CP nor the respondent were aware of this Court's decision in Heywood, the matter was not argued.  I therefore prefer to defer consideration of the Heywood principle to a future case, where it is actually necessary to the result.

 

VI - Conclusion

 

87               I agree with the courts below 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.  Section 13(1)(a) is also proportionate and not overbroad.  The objective of environmental protection is itself broad, and the legislature is justified in choosing broad, flexible language to give effect to this objective.  I would therefore dismiss the appeal and answer the second and third constitutional questions as follows:

 

2.Is s. 13(1)(a) of the Environmental Protection Act so vague as to infringe s. 7 of the Canadian Charter of Rights and Freedoms?

 

A.No.

 

3.If the answer to Question 2 is in the affirmative, is s. 13(1)(a) nevertheless justified by s. 1 of the Charter?

 

A.                This question does not arise.

 


                   Appeal dismissed.

 

                   Solicitor for the appellant:  Canadian Pacific Legal Services, Montreal.

 

                   Solicitors for the respondent:  The Ministry of the Attorney General and the Ministry of Environment and Energy, Toronto.

 

                   Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste‑Foy.

 

                   Solicitor for the intervener the Attorney General of Manitoba:  The Attorney General of Manitoba, Winnipeg.

 

                   Solicitor for the intervener the Attorney General for Saskatchewan:  W. Brent Cotter, Regina.

 

                   Solicitor for the intervener Canadian Environmental Law Association:  Canadian Environmental Law Association, Toronto.

 

 

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