R. v. Hydro-Qu6bec: Federal Environmental
Regulation as Criminal Law
Sven Deimann”
This case comment explores some of the doctrinal
and policy implications of the Supreme Court of Canada’s
recent ruling in R. v. Hydro-Qudbec. The commentary
seeks to place the decision in its doctrinal context, and dis-
cusses the consequences of holding regulatory powers in
relation to toxic substances under the Canadian Environ-
mental Protection Act (“CEPA”) as criminal law. It argues
that the majority’s ratio has significantly expanded the am-
bit of the criminal law power, especially regarding the
permissible form of criminal law. The importance of sec-
tion 91(27) as an appropriate jurisdictional pillar for im-
plementing the precautionary principle at the federal level
is emphasized. While the ruling has confirmed the possi-
bility for Parliament to play an important role in the pro-
tection of the environment, there are a number of counter-
vailing tendencies that have the potential for restricting
regulatory action at the federal level. In addition, the article
examines the potential for Charter-based challenges to en-
forcement actions under the CEPA by juxtaposing the ma-
jority’s reasoning in holding the relevant provisions crimi-
nal law with the test developed by the Court to dispose of
vagueness claims under section 7 of the Canadian Charter
of Rights and Freedoms. Finally, this case comment cau-
tions against decentralization of environmental policy
which leads to deregulation. It stresses the importance of
effective regulation at all levels of government so as to af-
ford –
all Canadians an acceptable
environmental quality.
(re)distributively –
Ce commentaire d’arr& explore certains aspects doc-
trinaux et politiques dcoulant de l’arr& rdcent de la Cour
supreme du Canada R. c. Hydro-Qugfbec. II place la d6ci-
sion dans son contexte doctrinal et discute des consdquen-
ces de la ddtermination que les pouvoirs r6glementaires sur
les substances toxiques en vertu de la Loi canadienne sur la
protection de l’environnement (
rel~vent de Ia
competence du Parlement f~dral en droit criminel. Selon
l’auteur, le ratio decidendi de la majorit a significative-
ment largi le champ d’application du pouvoir de ldgif6rer
en mati~re de droit criminel, surtout en ce qui conceme la
forme que peuvent prendre les dispositions de nature pd-
nale. L’auteur met 6galement en relief l’importance de
l’alinha 91(27) en tant que fondement d’une compdtence
lgislative dans la mise en oeuvre du principe de precaution
au niveau ft6dral au Canada. Bien que l’arret ait confim
le pouvoir du Parlement f~ddral d’assumer un r6le impor-
tant en mati~re de protection de ‘environnement, ce com-
mentaire fait l’analyse des tendances contraires restreignant
potentiellement la capacit6 r6glementaire f&16rale. De plus,
ce texte jette un regard sur la possibilit6 de recours bases
stir la Charte canadienne des droits et libertis contre les
’empire de la LCPE. 11 juxtapose
mesures prises sous
l’argumentation suivie par la Cour afm d’arriver A une d6-
termination de ,
” See CCME, Communiqu6 “Environmental Harmonization Accord Approved by Twelve Jurisdic-
tions” (29 January 1998), online:
1998). Ironically, the consequence of the Quebec government’s decision not so sign the Accord will
be that of all the provinces, Quebec will be the province where federal agencies and inspectors will
definitely continue to have to assume the full extent of their constitutional powers and duties. The
author is grateful to Franklin Gertler for drawing his attention to this aspect of the Quebec govern-
ment’s refusal to endorse the Accord.
“Supra note 9 at Objectives arts. 2, 4 [emphasis added].
‘2IbiL at Sub-Agreement, art. 2 [emphasis added].
1 CCME, Canada-Wide Environmental Standards Sub-Agreement, online: CCME, supra note 9.
” See ibic, s. 4.4.
5 See ibid., s. 6.3.
‘6 Supra note 1.
1998]
S. DEIMANN – R. V. HYDRO-QUIBEC
927
an appropriate supplement for regulatory action at the provincial level. At the same
time, however, this comment will attempt to show possible limits to Hydro-Quibec
and to the criminal law power as the foundation for federal environmental policy.
First, a brief overview of the case’s history will be provided.
1. R. v. Hydro-Qu6bec: Environmental Protection as a Public
Purpose Sufficient to Support a Criminal Prohibition
A. The Rulings in the Quebec Courts: Focussing on National
Concerns
The litigation arose out of charges brought against Hydro-Quebec in the Court of
Quebec for allowing polychlorinated biphenyls (“PCBs”) to be released into the envi-
ronment in quantities greater than allowed by section 6(a) of the Interim Order,” and
for failing to report the spillage to a federal inspector’ contrary to section 36(1)(a) of
the CEPA.” Hydro-Qu6bec pleaded not guilty to the charges and brought a motion to
have section 6(a) of the Interim Order as well as sections 33, 34, 35 and 36 of the
CEPA declared ultra vires. Counsel for Hydro-Qu6bec essentially argued that the pro-
visions in question sought to regulate conduct that occurred exclusively within a
province and which had no extra-provincial or international effects. It was argued that
the matter, squarely fell within exclusive provincial jurisdiction under sections 92(10)
and 92(13) of the Constitution Act, 1867? Moreover, counsel for Hydro-Qudbec
submitted that the provisions in question qualified neither as criminal law nor as
regulation under the national-concerns branch of Parliament’s power to adopt laws for
the “Peace, Order, and good Government of Canada,”
Counsel for the Attorney General of Canada sought to justify the provisions at is-
sue as regulation of a matter of national concern under the test laid down by the Su-
preme Court of Canada in Crown Zellerbach.’ It was argued that failure on the part of
one province to regulate effectively the release of toxic substances into the environ-
ment could entail serious risks for human health and the environment beyond its bor-
ders. In addition, counsel for the Attorney General of Canada submitted that the In-
terim Order as well as the other provisions at issue qualified as criminal law within
the meaning of section 91 (27) of the Constitution Act, 1867
“Supra note 5.
“See the facts as reported by Trottier J. in Hydro-Quibec (C.S.), supra note 2 at 2161 and LaForest
J. in Hydro-Qubec, supra note I at para. 88.
,Supra note 4.
20Supra note 6.
“Ibid s. 91.
2 Supra note 7.
‘ Supra note 6.
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Hydro’s position prevailed both before the trial judge and the provincial appellate
court. Both Babin J. in the Court of Quebec and Trottier J. of the Quebec Superior
Court granted the motion declaring section 6(a) of the Interim Order ultra vires par-
liament. Trottier J. first enquired into the ambit of the overall legislative scheme by
examining how the CEPA defined key concepts such as “environment” or “toxic sub-
stance “’24 Holding the relevant definitions’ to be comprehensive, the honourable Judge
found the whole scheme purporting to apply, on its face, not only to spills having ex-
tra-provincial effects, but also to those with purely local impact. Trottier J. then ex-
amined whether the subject matter of the impugned provisions so defined fell within
Parliament’s residuary power to pass laws for the “Peace, Order, and good Govern-
ment of Canada” as regulation of a matter of national concern.
The learned Judge found the provision to be running afoul of the requirement to
have an “effet sur la comp6tence provinciale qui soit compatible avec le partage fon-
damental des pouvoirs l6gislatifs effectu6 par la Constitution.” ‘ Given the breadth of
the definition of the term “toxic” in section 11(a) of the CEPA,’ Parliament had, ac-
cording to Trottier J., arrogated itself an indefinite regulatory power that purported to
catch all activity involving toxic substances and their effects. Hence, Parliament
sought to regulate the environmental consequences of matters otherwise falling within
the exclusive competence of the provinces” under sections 92(10) and 92(13) of the
Constitution Act, 18672′ Allowing such a matter to fall within Parliament’s residuary
power as a matter of national conern would, in the opinion of the learned Judge, have
amounted to vesting comprehensive jurisdiction with respect to the environment in
Parliament. Thus, the provinces would have been completely excluded from what was
generally recognized as being a matter of shared competence. 2 Finally, Trottier J. re-
jected the appellant’s submission that the impugned provision qualified as criminal
law within the meaning of section 91(27) of the Constitution Act, 1867. In this re-
See Hydro-Qudbec (C.S.), supra note 2 at 2162ff.
2 The CEPA, supra note 4, defines, in s. 3(l), “environment” as encompassing “the components of
the Earth” and as including “(a) air, land and water, (b) all layers of the atmosphere, (c) all organic
and inorganic matter and living organisms, and (d) the interacting natural systems that include com-
ponents referred to in paragraphs (a) to (c):’ A substance (within the meaning ascribed to that term by
s. 3(1)) is defined in s. 11 as toxic if:
it is entering or may enter the environment in a quantity or concentration or under con-
ditions (a) having or that may have an immediate or long-term harmful effect on the
environment; (b) constituting or that may constitute a danger to the environment on
which human life depends; or (c) constitution or that may constitute a danger in Can-
ada to human life-r health.
26See Hydro-Quibec (C.S.), supra note 2 at 2163.
“See ibid. at 2164ff.
“Ibi& at 2165, citing Crown Zellerbach, supra note 7 at 432.
9Supra note 4.
o See Hydro-Quibec (C.S.), supra note 2 at 2164ff.
” Supra note 6.
“See Hydro-Qudbec (C.S.), supra note 2 at 2165.
1998]
S. DEIMANN – R. v. HYDRO-QUIBEC
spect, the learned Judge found the whole scheme to be of a regulatory, rather than a
prohibitory nature, thus precluding its characterization as criminal law.3
In the Court of Appeal, Tourigny J.A. essentially followed the line of reasoning
adopted by Trottier J. in dismissing the appeal brought by the Attorney General for
Canada. Tourigny J.A. first examined the pith and substance of the impugned provi-
sions3′ and found it to be not just the protection of human life and health but protec-
tion of the environment writ large.” Not unlike Trottier J. in the Quebec Superior
Court, Tourigny J.A. held that such a subject matter lacked the “singleness, distinct-
iveness and indivisibility that clearly distinguishes it from matters of provincial con-
cern,” the requirements that would have to be met under the third prong of the test set
forth by LeDain J. in Crown Zellerbach36 to determine whether a matter qualifies as
one of national concern. Finally, Tourigny J.A. also held the criminal sanction at-
taching to violations of the legislative scheme at issue to be no more than a colourable
attempt to invade areas within provincial jurisdiction, and thus rejected the appellant’s
submission that the impugned provisions could be sustained as criminal law under
section 91(27) of the Constitution Act, 1867″
In refusing to characterize the Interim Order’s prohibition to release the substance
in question into the environment in excess of the prescribed quantities as being crimi-
nal law, the Quebec courts appeared to have overturned R. v. Canada Metal Co.9 In
that case, prohibitions to release certain substances into the air in excess of quantities
laid down in permits under the former federal Clean Air Act’ and the regulations
adopted thereunder were held to be criminal law within the meaning of section 91(27)
(in addition to being a matter of national dimensions coming within the purview of
Parliament’s POGG-power).
Moreover, all the judgments handed down by the Quebec courts seem to be
premised on the view that the legislation at issue also applied to purely local spills.
Indeed, the assumption is that the incident which led to Hydro-Quebec being charged
concerned a purely local spill that was wholly devoid of extra-provincial effects. As
one commentator has observed,” it is highly debatable whether this factual assump-
3 See ibid. at 2166.
34See Hydro-Quibec (C.A.), supra note 2 at 403.
35See ibid. at 405.
36Supra note 7 at 431-32.
37 See Hydro-Quebec (C.A.), supra note 2 at 406.
38 See ibid. at 408ff.
” (1982), 144 D.L.R. (3d) 124, 19 Man. R. (2d) 268 (Q.B.).
40 S.C. 1970-71-72, c. 47. Some of the provisions of the Clean Air Act have since been incorporated
into the CEPA, supra note 4. See in particular ss. 61ff. (Part V, InternationalAir Pollution).
41 See Curley, supra note 3 at 93. As Curley rightly points out, this assumption underlying Trottier
J.’s ruling appears particularly questionable in light of the facts of this case. The St. Maurice River
spills into the St. Lawrence River which, in turn, flows into the Atlantic. The substances spilled could
thus quite easily have been transported across provincial boundaries into the Maritime Provinces and
there led to contamination of fish.
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tion (which directly contradicted one of Parliament’s explicitly stated motives in the
preamble of the CEPA for adopting the legislation)’2 stands up to scrutiny, given the
well-known mobility of toxic substances not only across different environmental me-
dia, but also over huge distances due to their bio-accumulative effect and long-range
atmospheric transport. As the House of Commons Standing Committee on Environ-
ment and Sustainable Development found:
Because many of these substances can travel long distances through air or wa-
ter, can cross environmental media, are sometimes used widely, and in some
cases originate from non-point sources, it is often difficult to control them at
the local level. In orther words, the threat they pose is broad and pervasive. As
the Inuit Tapirisat and other aboriginal representatives testified, this is espe-
cially true in the Canadian Arctic, where industrial and agricultural pollutants
originating from southern Canada and other countries have been found in the
fatty tissues of some of the animals northerners eat.!3
B. R. v. Hydro-Qu6bec: Moving from National Concerns to Criminal
Law
Bearing in mind these rulings in the lower courts, it would have appeared that the
principal issue facing the Supreme Court was whether the regulation of toxic sub-
stances satisfied the national concern test stated by LeDain J. in Crown Zellerbach.’
The matter would then fall within Parliament’s residuary power to pass laws for the
“Peace, Order, and good Government of Canada’ as stated in the introductory clause
to section 91 of the Constitution Act, 1867. By the time the case reached the Court,
other litigation concerning the constitutionality of the Tobacco Products Control Act”
intervened. The ruling in RJR-MacDonald v. Canada (A.G.)’ significantly shifted the
focus for disposing of the jurisdictional issue in Hydro-Qudbec by re-directing much
of the argument to the criminal law power in section 91(27) of the Constitution Act,
1867. As LaForest J. reminded the intervenors appearing before the Court:
42 See the CEPA, supra note 4, preamble: “Whereas toxic substances, once introduced into the envi-
ronment, cannot always be contained within geographic boundaries”
‘ House of Commons, Standing Committee on Environment and Sustainable Development, It’s
About Our Health: Towards Pollution Prevention: CEPA Revisited (Ottawa: Canada Communications
Group, 1995) at 5.
” LeDain J. elaborated on the requirements Beetz J. had laid down in Reference Re Anti-Inflation
Act, [1976] 2 S.C.R. 373, 68 D.L.R. (3d) 452 [hereinafter Reference Re Anti-Inflation cited to S.C.R.],
by adding the so-called “provincial inability” test. Under the latter, a matter will be deemed to have
the requisite “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern” if a “provincial failure to deal effectively with the control or regulation of the in-
tra-provincial aspects of the matter” can be shown to have adverse effects on extra-provincial interests
(Crown Zellerbach, supra note 7 at 432).
43R.S.C. 1985 (4th Supp.), c. 14.
[1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1 [hereinafter RJR-Macdonald cited to S.C.R.].
1998]
S. DEIMANN – R. v. HYDRO-QUIBEC
There was a marked attempt to raise concerns appropriate to the national con-
cern doctrine under the peace, order and good government clause to the crimi-
nal law power in a manner that, in my view, is wholly inconsistent with the
nature and ambit of that power as set down by this Court from a very early pe-
riod and continually reiterated since, notably in specific pronouncements in the
most recent cases on the subject.!7
In RJR-MacDonald, Laforest J., writing for the majority on the jurisdictional
question, reiterated the Court’s expansive conception of Parliament’s power to adopt
laws in relation to the criminal law under section 91(27) of the Constitution Act, 1867:
“[t]he criminal law power is plenary in nature and this Court has always defined its
scope broadly.” Moreover, his Lordship indicated that Parliament enjoys consider-
able discretion when singling out a public purpose to undergird substantively the form
of penal laws under the definition of criminal law offered by Rand J. in the Reference
as to the Validity of Section 5(a) of the Dairy Industry Act:
A crime is an act which the law, with appropriate penal sanctions, forbids; but
as prohibitions are not enacted in a vacuum, we can properly look for some evil
or injurious or undesirable effect upon the public against which the law is di-
rected. That effect may be in relation to social, economic or political interests;
and the legislature has had in mind to suppress the evil or to safeguard the in-
terest threatened.49
Given the broad range of interests capable of lending a substantive element to the
form of criminal law, it is perhaps not surprising that the focus of the argument with
respect to jurisdictional authority in relation to toxic substances regulation should
have shifted from national concern to criminal law power. This is the case especially
after LaForest J’s finding of a valid public purpose capable of containing provisions
of a penal nature in RJR-MacDonald where the various prohibitions under the To-
bacco Products Control Act” were not seen as addressing conduct that directly im-
pinged on the identified underlying criminal wrong –
the consumption, sale, or
manufacture of tobacco products – but rather the motivation to engage in the directly
harmful conduct.
The issues thus facing the Supreme Court following its ruling in RJR-MacDonald
may be summarized as follows: first, does environmental protection qualify as a le-
gitimate public purpose that can strengthen federally enacted penal sanctions, and
save them from a verdict of colourability under the test set out by Rand J.; and sec-
ond, if so, do the legislative tools employed by Parliament in sections 34 and 35 of the
47Hydro-Quibec, supra note 1 at para. 117. See also para. 109.
” RJR-MacDonald, supra note 46 at para. 28.
49 [1949] S.C.R. I at 49, [1949] 1 D.L.R. 433, aff’d [1951] A.C. 179, [1950] 4 D.L.R. 689 (P.C.)
[hereinafter Margarine Reference cited to S.C.R.] cited in RJR-MacDonald, ibid. at para. 29ff., La-
Forest J.
‘0 Supra note 45.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 43
CEPA remain within the legislative means Parliament has at its disposal under the
authority of section 91(27) of the Constitution Act, 1867.
Both the majority and minority had little difficulty finding environmental protec-
tion a valid public purpose which could legitimately result in prohibitory legislative
measures of a criminal nature.’ However, the majority and minority reached funda-
mentally different conclusions on the second question.
Against Hydro-Qu6bec’s attack of the provisions’ regulatory nature, LaForest J.,
writing for the majority, relied on previous cases in which federal legislation with
regulatory elements had been upheld as valid criminal law. Drawing a parallel with
the federal Food and Drugs Acte2 and citing RJR-MacDonald, his Lordship analyzed
the operation of section 34 of the CEPA in the following manner:
In short, s. 34 precisely defines situations where the use of a substance in the
List of Toxic Substances in Schedule I is prohibited, and these prohibitions are
made subject to penal consequences. This is similar to the techniques Parlia-
ment has employed in providing for and imposing highly detailed requirements
and standards in relation to food and drugs, which control their import, sale,
manufacturing, labelling, packaging, processing and storing….
What Parliament is doing in s. 34 is making provision for carefully tailoring the
prohibited action to specified substances used or dealt with in specific circum-
stances. This type of tailoring is obviously necessary in defining the scope of a
criminal prohibition, and is, of course, within Parliament’s power 3
As LaForest J.’s subsequent citation from R. v. Furtne makes clear, in his judg-
ment, the operation of section 34 of the CEPA is, for purposes of determining the
criminal law nature of the provision, no different from the criminal code exemptions
for provincially licensed lotteries.?
Although holding sections 34 and 35 of the CEPA valid criminal law, LaForest J.
elaborated to explain that this result does not prevent the provinces from enacting and
applying regulatory measures dealing with very similar issues:
[I]t is well at this point to recall that the use of the federal criminal law power in
no way precludes the provinces from exercising their extensive powers under s.
5′ See Hydro-Qubec, supra note 1 at paras. 123-30, LaForest J. and at paras. 37-38, Lamer C.J.C.,
dissenting.
52R.S.C. 1985, c. F-27.
Hydro-Queibec, supra note 1 at paras. 150-51, LaForest J. [footnotes omitted]. See also at para.
135 where LaForest J. describes the overall content of Part II of the CEPA:
Part II does not deal with the protection of the environment generally. It deals simply
with the control of toxic substances that may be released into the environment under
certain restricted circumstances, and does so through a series of prohibitions to which
penal sanctions are attached.
5 [1991] 3 S.C.R. 89, 66 C.C.C. (3d) 498 [hereinafter Furtney cited to S.C.R.].
51 See Hydro-Qudbec, supra note 1 at paras. 151-52.
1998]
S. DEIMANN – R. v. HYDRO-QUtBEC
92 to regulate and control the pollution of the environment either independently
or to supplement federal action.!
Thus, a finding of federal jurisdiction under one of the enumerated heads of power in
section 91 allows for the concurrent operation of both federal and provincial
legislation:
In truth, there is a broad area of concurrency between federal and provincial
powers in areas subjected to criminal prohibitions, and the courts have been
alert to the need to permit adequate breathing room for the exercise of jurisdic-
tion by both levels of government.
This type of approach is essential in dealing with amorphous subjects like
health and the environment.5 7
In fact, his Lordship furnishes what might be termed a policy reason for holding the
provisions at issue criminal law, and thus obviating an enquiry into whether the regu-
lation of toxic substances comes within the purview of Parliament’s residuary power
under the national concerns branch. Unlike jurisdiction under one of the enumerated
heads of power, jurisdiction under Parliament’s residuary power operates to the exclu-
sion of provincial regulation:
In saying that Parliament may use its criminal law power in the interest of pro-
tecting the environment or preventing pollution, there again appears to have
been confusion during the argument between the approach to the national con-
cern doctrine and the criminal law power. The national concern doctrine oper-
ates by assigning full power to regulate an area to Parliament. Criminal law
does not work that way. Rather it seeks by discrete prohibitions to prevent evils
falling within a broad purpose, such as, for example, the protection of health.’8
‘Ibid. at para. 131.
” Ibid. at para. 153, citing Schneider v. R., [1982] 2 S.C.R. 112 at 134, 139 D.L.R. (3d) 417, Dick-
son J.
5 Hydro-Quibec, ibid. at para. 128. It is a matter of some argument, however, whether federal juris-
diction under the national concerns branch of Parliament’s peace, order and good governmentpower
[hereinafter “POGG”] does so operate to the exclusion of provincial jurisdiction. See J.-Y Morin & J.
Woehrling, Les Constitutions du Canada et du Quifbec du rigimefranfais a1 nos jours, vol. 1, 2d ed.
(Montreal: Thmis, 1994) at 321, n. 608. While Beetz J. in Reference Re Anti-Inflation, supra note 44,
attributed an exclusive nature to federal legislation under POGG, LeDain J.’s reasoning, in Crown
Zellerbach, supra note 7 at 431, on the specific question of federal jurisdiction to regulate pollution of
marine waters, leaves some room for ambiguity. See D. VanderZwaag, Canada and Marine Environ-
mental Protection: Charting a Legal Course Towards Sustainable Development (London: Kluwer
Law International, 1995) at 294; L. Willis, “The Crown Zellerbach Case on Marine Pollution: Na-
tional and International Dimensions” (1988) 26 Can. Y.B. Int’l L. 235 at 244; K. Swinton, “Federal-
ism under Fire: The Role of the Supreme Court of Canada” (1992) 55 L. & Contemp. Probs. 121 at
132. See also S.A. Kennett, Managing Interjurisdictional Waters in Canada: A Constitutional Analy-
sis (Calgary: Canadian Institute of Resources Law, 1991) at 212-26. Kennett draws parallels with the
Court’s previous jurisprudence to argue that the ruling in Crown Zellerbach can hardly be taken as
authority for the proposition that the provinces are to be excluded from the field of water pollution in
its entirety.
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This passage is preceded by an extensive quote from the 1987 report Our Com-
mon Future by the World Commission on Environment and Development which en-
visaged the following division of labour between national and subnational govern-
mental units in the regulation of toxic substances:
The regulations and standards should govern such matters as air and water
pollution, waste management, occupations health and safety of workers, energy
and resource efficiency of products or processes, and the manufacture, mar-
keting, use, transport, and disposal of toxic substances. This should normally
be done at the national level, with local governments being empowered to ex-
ceet but not to lower, national norms.59
Hence, it is, at least in part, the preferability of concurrency in a field such as the
environment that tips the scales against federal jurisdiction on the basis of the national
concerns branch. This idea had previously been expounded in scholarly writing,’ but
does not currently seem to be finding much favour with political actors who are keen
to reduce the very potential for the concurrent operation of environmental protection
statutes” that LaForest J. appears to have in mind:
In Crown Zellerbach, I expressed concern with the possibility of allocating
legislative power respecting environmental pollution exclusively to Parliament.
I would be equally concerned with an interpretation of the Constitution that ef-
fectively allocated to the provinces, under general powers such as property and
civil rights, control over the environment in a manner that prevented Parliament
from exercising the leadership role expected of it by the international commu-
nity and its role in protecting the basic values of Canadians regarding the envi-
ronment through the instrumentality of the criminal law power.”2
II. Federal Environmental Jurisdiction under the Criminal Law
Power
The ruling in Hydro-Quibec is the Supreme Court’s latest pronouncement on the
subject of jurisdiction in relation to environmental policy. As such it marks an impor-
tant step in the doctrinal evolution of Parliament’s criminal law power under section
91(27) of the Constitution Act, 1867.’
‘9 Hydro-Quibec, ibid. at para. 126 [emphasis added], citing World Commission on Environment
and Development, Our Common Future (Oxford: Oxford University Press, 1987) at 219-20 [herein-
after Our Common Future].
60 See J. Leclair, “Aperqu des virtualit6s de la comp6tence f6d6rale en droit criminel dans le contexte
de la protection de renvironnement” (1996) 27 R.G.D. 137 at 140.
6′ See supra note 9 and accompanying text
62Hydro-Quibec, supra note I at para. 154.
Supra note 6.
1998]
S. DEIMANN – R. v. HYDRO-QUtBEC
A. Penal Finality and Regulatory Form
The ruling represents a significant expansion of the federal criminal law power,
especially as regards the legislative tools and techniques which are available to Par-
liament under section 91(27) of the Constitution Act, 1867. Traditionally, it had al-
ways been thought that the criminal law power does not sustain regulatory schemes.’
In the environmental field in particular, doubts had been expressed about whether the
criminal law power could furnish sufficient jurisdictional authority for some of the
more elaborate environmental management schemes.’ Prior to Hydro-Quibec, regu-
latory elements had been upheld as exemptions that could be appended to a criminal
ban and its corresponding sanctions in order to define the precise ambit of a crime.”
In likening section 34 of the CEPA to such techniques, LaForest J. has substan-
tially removed some of the fetters attaching to the form of criminal law under section
91(27) of the Constitution Act, 1867. The precise wording of the section bears re-
peating in this context:
34. (1) Subject to subsection (3),
where an order has been made to add a substance to the list of toxic
substances in schedule 1, the Governor in Council may, on the rec-
ommendation of the Ministers and after the federal-provincial advi-
sory comittee is provided an opportunity to render its advice under
section 6, make regulations with respect to the substance, including
regulations providing for or imposing requirements respecting
(a)
the quantity
or concentration of the substance that may be released into the
environment either alone or in combination with any other sub-
stance from any source or type of source
As is readily apparent, the section contains no prohibition at all. On the contrary,
rather than proscribing, the provision, on a literal interpretation, authorizes conduct,
i.e. the making of regulations in relation to substances that have been added to the List
of Toxic Substances in Schedule I of CEPA. The addressee of the section is not an in-
dividual citizen who, on pain of suffering a criminal sanction, is given a binding
“See P.W. Hogg, Constitutional Lav of Canada, 4th ed. (Scarborough, Ont.: Carswell, 1996) c.
18.10; Fitzgerald, supra note 3 at 94.
“See R. Cotton & A.R. Lucas, Canadian Environmental Law, 2d ed. (Toronto: Butterworths, 1992)
at para. 3.21.
“See Furtney, supra note 54. In addition, regulatory schemes in areas other than the environment
had been upheld as preventive measures. See Goodyear 7ire & Rubber Co. of Canada v. R., [1956]
S.C.R. 303, 2 D.L.R. (2d) 11; R. v. Swain, [1991] 1 S.C.R. 933, 5 C.R. (4th) 253. In the latter case, the
relevant provision of the Criminal Code, R.S.C. 1985, c. C-46 was struck down as infringing the Ca-
nadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
67 CEPA, supra note 4.
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command not to engage in a particular conduct, but rather the Governor in Council
who is vested with comprehensive authority to regulate virtually every aspect of a
substance appearing on the List of Toxic Substances.”
The wording and legislative technique which are manifest in section 34 of the
CEPA thus stand in marked contrast to the provisions in the Tobacco Products Control
Act’ or the Food and Drugs Act,” legislation that his Lordship relied upon for his con-
clusion on the essential similarity between provisions in Part II of the CEPA and
regulatory exemptions from penal provisions defining a criminal act. The relevant
provisions in the Tobacco Products Control Act, for instance, read:
4. (1) No person shall advertise any tobacco product offered for sale in
Canada.
17.
The Governor in Council may make regulations
(a) exempting a tobacco product from the application of sections 4
and 7 where, in the opinion of the Governor in Council, that
product is likely to be used as a substitute for other tobacco
products and poses less risk to the health of users than those
other products;7′
The Food and Drugs Act employs a similar technique:
5. (1) No person shall label, package, treat, process, sell or advertise any food
in a manner that is false, misleading or deceptive or is likely to create an er-
roneous impression regarding its character, value, quantity, composition,
merit or safety.
(2) An article of food that is not labelled or packaged as required by, or is
labelled or packaged contrary to, the regulations shall be deemed to be la-
belled or packaged contrary to subsection (1).
30. (1) The Governor in Council may make regulations for carrying the pur-
poses and provisions of this Act into effect, and, in particular, but without
restricting the generality of the foregoing, may make regulations …
(b)
respecting
(i) the labelling and packaging and the offering, exposing and
advertising for sale of food, drugs, cosmetics and devices’
Something the Chief Justice was at pains to point out in his dissent (see Hydro-Quibec, supra
note I at para. 52). It may be questioned whether the regulatory authority vested in the Executive by
virtue of s. 34(1)(a) of the CEPA, ibiL, in fact extends to banning a substance, i.e. prohibiting its re-
lease into the environment completely. Unlike paragraph (1), paragraph (a) does not mention the pos-
sibility of a prohibition but rather speaks of “the quantity or concentration” of a substance “that may
be released into the environment,” a wording which suggests as a matter of abstract principle a pre-
sumption that generally substances may be emitted.
‘ Supra note 45.
70 Supra note 52.
7 Supra note 45, ss. 4(1), 17(a).
2Supra note 52, ss. 5, 30(1)(b)(i).
7″
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S. DEIMANN – R. v. HYDRO-QUtBEC
937
Here, whatever regulatory authority is vested with the Governor in Council is pre-
ceded by general clauses which are addressed not to the Governor in Council but to
individual citizens who are, moreover, faced with a straightforward command: “Do
not advertise tobacco products offered for sale in Canada!” In contrast, the CEPA does
not enjoin the citizen from emitting or discharging toxic substances in a similar fash-
ion. CEPA, unlike some of the provincial environmental protection statutes,” does not
set out a broadly-worded general ban (“No person shall”) on emitting or discharging
toxic substances into the environment.’
In nevertheless holding section 34 of the CEPA criminal law, LaForest J. espouses
a construction of the criminal law power which allows, for purposes of pith and sub-
stance analysis, a provision’s penal finality or objective to prevail over its regulatory
form.” The Court has thus dissipated any doubt as to whether the criminal law power
can sustain what are, in form at least, complex regulatory schemes.
B. Prohibition and Precaution
Hydro-Quibec marks an important step in the doctrinal development of the
criminal law power not only with respect to the forms and techniques of criminal law
within the meaning of section 91(27) of the Constitution Act, 1867.”‘ The ruling is also
confirmation of Parliament’s considerable latitude in identifying a valid public pur-
pose that is required to undergird substantively the form of criminal law. Hydro-
Quibec recognizes Parliament’s authority under the criminal law power to designate
harm to the environment, irrespective of any tributory harm to human health, a valid
object of penal prohibitions and corresponding sanctions.
The margin of appreciation that is incumbent upon Parliament when determining
the object of penal provisions had previously found judicial confirmation in the con-
text of food and drugs legislation and whether a particular substance poses a serious
7″ Compare, for instance, s. 20 of the Quebec Environmental Quality Act, R.S.Q. c. Q.-2:
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 concentra-
tion than that provided for by regulation of the Government.
A notable exception is made in the CEPA, supra note 4, s. 26, for substances that are new to Can-
ada within the meaning of the Act. These substances may not be manufactured or imported (“no per-
son shall manufacture or import”) unless the requirements in s. 26(l)(a) and (b) are complied with.
See also L. Giroux, “Les nouvelles technologies et le rgime de la protection de ‘environnement au
Canada: la nouvelle Loi canadienne sur Ia protection de l’environnement” (1989) 30 C. de D. 747 at
760,766.
75 See Leclair, supra note 60 at 156, who laid the doctrinal groundwork. In his opinion, LaForest J.
expressly relies on Leclair’s analysis of s. 91(27) in an environmental context as part of the basis for
his judgment. See Hydro-Quibec, supra note 1 at para. 118.
76 Supra note 6.
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risk of harm. Thus in Standard Sausage Co. v. Lee,” Macdonald J.A. held that this
determination fell within Parliament’s discretion:
The primary object of this legislation is the public safety – protecting it from
threatened injury. If that is its main purpose –
and not a mere pretence for the
invasion of civil rights –
it is none the less valid because it may be open to a
criticism, from which few acts are free, that its purpose would be served
equally well by accepting the opinion of others, viz., that sulphur dioxide might
with safety be added to the list of usable preservatives. Tampering with food by
the introduction of foreign matter, however good the intentions, should prop-
erly be regarded as a public evil and it may properly be regarded as highly dan-
gerous to lower the bars, or to remove restrictions which, rightly or wrongly,
Parliament in its wisdom thought fit to prescribe
In light of Hydro-Que’bec and its jurisprudential precursors, the sole limit that
continues to apply to the criminal law power arises in situations reverse to the one
contemplated in Standard Sausage: situations not of scientific uncertainty regarding
the possible harmfulness of a substance but rather of scientific certainty as to its in-
nocuousness. Both the Margarine Reference” and Labatt Breweries of Canada v.
Canada (A.G.)’ stand for the proposition that Parliament may not have recourse to the
criminal law power (on the pretext of invading areas under provincial jurisdiction)
where, on production of appropriate extrinsic evidence, use of a substance is demon-
strably without risk of harm.”
Parliament enjoys the discretion to identify real as well as potential evil, injurious
or undesirable effects upon the public against which the law is directed. Thus, the
criminal law power uniquely invests Parliament with appropriate constitutional
authority to further a central element of modem, sustainability-oriented environmental
policy, namely the precautionary principle. It is precisely the ability to regulate poten-
tially harmful substances or conduct, while full scientific proof of harm is not yet
‘ [1933] 4 D.L.R. 501, 60 C.C.C. 265 (B.C.C.A.) [hereinafter Standard Sausage cited to D.L.R.].
” Ibid. at 507. See also Berry Canning Co. v. R., [1974] FC. 590 (T.D.).
71 Supra note 49.
‘0 [1980] 1 S.C.R 914, 110 D.L.R. (3d) 594 (holding ultra vires Parliament’s prescription of prod-
uct categories such as “lite” beer as “legal recipes” for products that in and of themselves are not dan-
gerous).
8″ In that the extent of federal environmental jurisdiction under the criminal law power resembles the
preconditions for exercising federal environmental jurisdiction under other heads of power, see R. v.
Fowler, [1980] 2 S.C.R. 213, 113 D.L.R. (3d) 513. In Crown Zellerbach, supra note 7, recourse to the
national concerns branch of Parliament’s residuary power in s. 91 became necessary because the
comprehensive ban in the Ocean Dumping ControlAct, S.C. 1974-75-76, c. 55, now the CEPA, supra
note 4, Part VI, of the dumping of any substance into marine waters, including those lying within the
boundaries of a province – whether deleterious to marine life or not –
could not be sustained either
under s. 91(12) or s. 91(27) of the Constitution Act, 1867, supra note 6. See Crown Zellerbach, ibid.
at 420-23 per LeDain J. and 441-43 per LaForest J., dissenting.
1998]
S. DEIMANN – R. V. HYDRO-QUtBEC
939
available, that is at the heart of the precautionary principle. 2 In addition, attributing to
democratically legitimated decision-makers the ultimate decision as to whether a sub-
stance requires regulation –
and hence the decision whether a substance poses a seri-
ous risk that warrants such intervention –
acknowledges the inherent limitations of
scientific methods and judgments. Science can produce vastly differing computations
of risk, and hence lend itself to diametrically opposed conclusions on the necessity to
take action.”
Moreover, constitutional authority for informing environmental policy with the
precautionary principle would appear to be of increasing relevance as Canadian envi-
ronmental law is in the process of moving into new areas to respond to hitherto un-
known risks arising from novel production methods and products such as biotechnol-
ogy, seedlings or food stuffs containing genetically modified organisms or ingredi-
ents.” Consistent with the precautionary principle and the peculiar risk posed by bio-
technology, Bill C-32 proposes to insert enabling clauses into the CEPA which would
allow the Executive to regulate substances or activities pertaining to the use of ani-
mate products of biotechnology irrespective of the Governor in Council being satis-
fied as to a substance’s toxicity.’
” See the proposed legislative definition in the preamble to Bill C-32, An Act respecting pollution
prevention and the protection of the environment and human health in order to contribute to sustain-
able development, 1st Sess., 36th Parl., 1997-98 [hereinafter Bill C-32]:
Whereas the Government of Canada is committed to implementing the precautionary
principle that, where there are threats of serious or irreversible damage, lack of full sci-
entific certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degredation.
See W.E. Wagner, ‘he Science Charade in Toxic Risk Regulation” (1995) 95 Col. L. Rev. 1613.
This is so because scientific assessments of risk, as Wagner rightly points out, can rarely be justified
solely by reference to empirical observation. They are frequently enmeshed with normatively-guided
policy judgments (e.g. regarding the precise risk assessment technique to apply or the choice of an
extrapolatory model with which to interpret results obtained through animal testing). See ibid at
1618-27.
The special risks associated with the use of biotechnology and appropriate regulatory (and other
policy) responses have recently been examined by the German Council of Environmental Advisors
(“SRU’), an expert advisory body to the German Federal Government. The Council noted the scarcity
of reliable empirical data on the possible long-term ecological consequences of wide-spread uses of
transgenetic plants in agriculture and called for continuous supplementary monitoring where transge-
netic seedlings are used. It also recommended appropriate regulatory measures to take into account
hypothetical risks, i.e. risks that can be assumend to exist not on the basis of empirical data but solely
on the basis of theoretical calculations and hypotheses. Only purely speculative risks cannot, in the
eyes of the Council, justify measures directed against effects flowing from transgenetic plants. See
SRU, Enviromnental Report 1998. Environmental Protection: Securing Achievements – Breaking
New Ground (Bonn: Federal Environmental Agency, 1998), online:
accessed: October 19, 1998) at paras. 69-97.
” See Bill C-32, supra note 82, s. 114. Currently, regulatory authority under s. 33 of the CEPA, su-
pra note 4, in respect of toxic substances is tied to the Governor in Council being satisfied as to a sub-
stance’s toxicity. A suspicion of toxicity, however, can entail interim regulatory measures under s. 29
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Unfortunately, developments in international fora may frustrate efforts to make
full use of Parliament’s powers under section 91(27) of the Constitution Act, 1867,
especially in their precautionary dimensions.’
C. The Environment as a Cross-Cutting Subject Matter
In basing federal environmental jurisdiction in relation to the regulation of toxic
substances on the criminal law power, LaForest J. also reinforces the Court’s overall
approach related to the appropriate allocation of powers with respect to the environ-
ment. As a matter of principle, the Court views the environment as a subject matter
that should best not be allocated exclusively to either level of government:
It must be recognized that the environment is not an independent matter of
legislation under the Constitution Act, 1867 and that it is a constitutionally ab-
struse matter which does not comfortably fit within the existing division of
powers without considerable overlap and uncertainty.
It will be seen that in exercising their respective legislative powers, both levels
of government may affect the environment, either by acting or not acting.”
Regarding the environment, in this fashion, as a subject matter of de facto”
concurrency also accords well with another central element of sustainability, i.e. the
idea that environmental or ecological considerations should as much as possible be
integrated into wider socio-economic concerns and decision-making.Y Since impor-
tant parameters for Canada’s socio-economic development are set at both levels of
government, defacto concurrency in respect of the environment would seem to be the
most appropriate jurisprudential policy choice that allows both levels of government
to play an important role in environmental policy.’
Concurrency of jurisdiction also mirrors the inherent tension that exists between
the potentially all-encompassing nature of the environment as a subject matter and the
territoriality of law in federal systems.” The environment, due to the
inter-
connectedness of eco-systems, seemingly pushes towards greater central decision-
making –
and this in a comprehensive fashion to take account of the holistic nature
of the Act in respect of substances that do not appear on the Domestic Substances List. See also Gi-
roux, supra note 74 at 761.
‘ See Part 3.D., below.
“Friends of the Oldman River, supra note 8 at 64-65, LaForest J.
” Of course, de jure, the Canadian division of powers under ss. 91 and 92 of the Constitution Act,
1867, supra note 6, remains one of exclusive jurisdiction. See also Scovby v. Glendinning, [1986] 2
S.C.R. 226 at 236ff., 32 D.L.R. (4th) 161, Estey J., holding a provincial human rights code which
provides for provincial inquiry into allegations of arbitrary arrest and detention contrary to the code
ultra vires the province as an invasion of the federal criminal law power.
9 See Our Common Future, supra note 59 at 62-65.
See M. Walters, “Ecological Unity and Political Fragmentation: The Implications of the
Brundtland Report for the Canadian Constitutional Order” (1991) 29 Alta. L. Rev. 421 at 425ff.
9′ See ibid. See also S.A. Kennett, “Federal Environmental Jurisdiction After Oldinan” (1993) 38
McGill L.J. 180 at 195.
1998]
S. DEIMANN – R. V. HYDRO-QUtBEC
of ecological issues. In contrast, a system of government which acts precisely on the
premise that public affairs should not be decided in such a broad manner by one level
of government alone militates in favour of greater differentiation and abstraction from
a holistic approach to environmental policy.92
Similarly, concurrency of powers reflects two seemingly contradictory strains in
the concept of sustainability. Sustainable development calls for greater centralization
to facilitate global and comprehensive approaches, not least of all to frustrate strategic
behaviour on the part of governments and economic actors to circumvent regulatory
policies established at a local or regional level. However, the importance of local in-
volvement in environmentally relevant decision-making has also been stressed.” The
latter presupposes that a sufficient number of issues remain susceptible to local or re-
gional influence, and that communities are appropriately empowered to pursue sus-
tainable practices within their confines.’
Ill. Sustainability and the Limits to Environmental Policy Based
on Criminal Law
While Hydro-Qudbec has thus significantly expanded the potential for environ-
mental policy under the criminal law power in section 91(27) of the Constitution Act,
1867, the ruling also raises a number of doctrinal and policy issues that point to the
limits of the criminal law power in an environmental policy context.
92 See D. Gibson, “Constitutional Jurisdiction Over Environmental Management in Canada” (1973)
23 U.T. L.J. 85. Espousing an approach that prefers defacto operation of federal and provincial envi-
ronmental protection statutes also avoids the delicate task of deciding whether particular instances of
environmental policy satisfy the provincial inability test. This test was set forth by LeDain J. in Crown
Zellerbach, supra note 7, to determine whether a subject matter features the requisite “singleness” and
“indivisibility” to qualify as a matter of national concern under Parliament’s residuary power. The
provincial inability test, while resembling the concept of subsidiarity in European Community law,
has come under criticism for involving the judiciary in policy decisions by requiring them to assess
the effectiveness of provincial regulations. See P.W. Hogg, “Subsidiarity and the Division of Powers
in Canada” (1993) 3 N.J.C.L. 341; R. Howse, “Subsidiarity in All But Name: Evolving Concepts of
Federalism in Canadian Constitutional Law” in Canadian Comparative Law Association et al., eds.,
Contemporary Law 1994: Canadian Reports to the 1994 International Congress of Comparative
Law, Athens, 1994 (Cowansville, Que.: Yvon Blais, 1995) 701; A. Tremblay, Droit constitutionnel:
Principes (Montreal: Thrmis, 1993) 244; K. Swinton, The Supreme Court and Canadian Federalism:
The Laskin-Dickson Years (Toronto: Carswell, 1990) 167-69.
93 See P. Elder, “Sustainability” (1991) 36 McGill L.i. 831 at 837, 841.
94See J. Moffet & F Bregha, “The Role of Law Reform in the Promotion of Sustainable Develop-
ment” (1996) 6 J.E.L.P. I at 1 iff.
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A. Penal Purposes in Regulatory Form and “Fair Notice” under
Section 7: The CEPA on unChartered Ground?
The language LaForest J. employs in his reasoning to conclude that the pith and
substance of section 34 of the CEPA is criminal law does not accord well with some
of the arguments that the Court has advanced in other contexts for disposing of
vagueness claims brought under section 7 of the Charter.” Undoubtedly, under the
Court’s contextual approach to Charter claims under section 7,’ the legislation at is-
sue in Hydro-Quibec would qualify – being criminal law with considerable regula-
tory elements –
for the relaxed standard of review the Court has developed for regu-
latory offences. Yet, Justice LaForest’s description of the legislative technique mani-
fest in section 34 is not readily compatible with the standard of review applied by the
Court to adjudicate vagueness claims in relation to regulatory offences.
At first glance, the threat of polluters challenging the CEPA-based prosecutions
on Charter grounds may seem more theoretical than real. The Canadian constitutional
order does not seem to share the concern of many continental European legal systems
with a statutory form of criminal law as a further safeguard against arbitrary defini-
tions of criminal conduct. However, in his dissent, the Chief Justice did note the odd-
ity of a crime whose definition remained entirely at the discretion of the Executive.”
United Nurses of Alberta v. Alberta” stands for the proposition that section 7 of the
Charter does not require the definition of a crime to be made exclusively by way of
statutory legislation. Thus, the fact that without the exercise of executive discretion
pursuant to section 34 no offence is even defined by the Act, as the Chief Justice ob-
served in his dissent,” does not in and of itself render the provision incompatible with
the principles of fundamental justice.
In a similar vein, the Court has rejected challenges to provincial regulatory of-
fences in the environmental field based on section 7 of the Charter. In Ontario v. Ca-
nadian Pacific Ltd,”‘ Gonthier J. rejected the appellant corporation’s claim that section
13(1)(a) of the Ontario Environmental Protection Act”‘ violated section 7 of the
Charter for being unconstitutionally vague and overbroad. In upholding the legisla-
tion, Gonthier J. stressed the importance of a contextual approach when adjudicating
vagueness claims in relation to regulatory offences. His Lordship indicated the
9 Supra note 66.
“See especially R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161
[hereinafter Wholesale Travel Group cited to S.C.R.].
9See Hydro-Quebec, supra note 1 at para. 55.
“‘ [1992] 1 S.C.R. 901, 89 D.L.R. (4th) 609.
” See Hydro-Quebec, supra note 1 at para. 55.
“0 [1995] 2 S.C.R. 1031, 17 C.E.L.R. (N.S.) 129 (1995) [hereinafter Canadian Pacific cited to
S.C.R.].
“‘ R.S.O. 1980, c. 141, now s. 14 (1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19.
1998]
S. DEIMANN – R. V. HYDRO-QUIBEC
943
Court’s willingness to exercise considerable judicial restraint when reviewing legisla-
tion that seeks to further legitimate social objectives:
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. … The s. 7 doctrine
of vagueness must not be used to straitjacket the state in social policy fields. 02
Moreover, applying the test for vagueness elaborated in R. v. Nova Scotia Phar-
maceutical Society,’3 his Lordship placed considerable reliance on the very breadth
and scope of the impugned provision that in the appellant’s submission rendered it
imprecise and unconstitutionally vague. Under the vagueness test developed in Nova
Scotia Pharmaceutical Society, a law will be vague only where it is so “lack[ing] in
precision as not to give sufficient guidance for legal debate” a requirement predicated
upon the need to give fair notice to citizens as to what conduct is prohibited and the
corresponding need to proscribe enforcement discretion.'” It was in particular with re-
spect to the notice function that Gonthier J. found the impugned provision’s generality
innocuous:
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.”3
Indeed, in the peculiar environmental protection context, his Lordship found de-
tailed proscriptions not necessarily conducive to providing citizens with fair notice of
prohibited conduct:
Is a very detailed enactment preferable? In my view, in the field of environ-
mental 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 no-
tice than a more general enactment.0 6
Yet, in the light of Canadian Pacific, sections 34 and 35 of the CEPA would likely run
afoul of the requirement under section 7 of the Charter to prohibit by way of a “gen-
eral indictment”. For in holding these provisions criminal law, LaForest J. attributed to
the criminal law the characteristic of seeking “by discrete prohibitions to prevent evils
falling within a broad purpose, such as, for example, the protection of health.”” In a
’02 Canadian Pacific, supra note 100 at 1071-72 (citing R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606 at 642,93 D.L.R. (4th) 36 [hereinafter Nova Scotia Pharmaceutical Society cited
to S.C.R.]).
103 Ibid.
” See Canadian Pacific, supra note 100 at 1069, citing Nova Scotia Pharmaceutical Society, ibid.
at 643.
‘0o Canadian Pacific, ibid. at 1073.
’07 Hydro-Qudbec, supra note I at para. 128 [emphasis added].
IbidL at 1074.
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like manner, his Lordship held that the provisions were not broad and general pollu-
tion bans but rather provisions
for carefully tailoring the prohibited action to specified substances used or
dealt with in specific circumstances. This type of tailoring is obviously neces-
sary in defining the scope of a criminal prohibiton.&
If the standard set forth in Nova Scotia Pharmaceutical Society were applied for de-
termining whether a law violates the principles of fundamental justice by being
impermissibly vague, could it be concluded that section 34 of the CEPA provides
“sufficient guidance for legal debate.’ especially as regards “the scope of prohibited
conduct?””‘ Since the provision is not preceded by any general command not to en-
gage in releasing a substance classified as “toxic” under the Act, it would appear that
no such guidance can be derived from the provision in and of itself.”‘ Only a com-
bined reading of section 34, the regulations that have been adopted under its authority
and section 113(f) of the CEPA can provide a basis for determining the specific con-
duct that is prohibited and thus subject to criminal sanctions.”‘
B. Punishment and Sustainability
Apart from raising further constitutional issues as to its Charter compatibility, en-
vironmental law as criminal law begs policy-related questions which concern the ap-
propriateness and usefulness of the criminal law for achieving sustainability. While
Hydro-Quibec has freed the federal criminal law power from much of the rigidity of
conventional penal legislation, i.e. a prohibition coupled with a sanction in the form of
fines or imprisonment, it is dubious”‘ whether the newly-found flexibility in pursuing
a public purpose under section 91(27) alone will be sufficient
in achieving
sustainability at the federal level.
Even under the expansive concept of criminal law espoused by LaForest J., legis-
lation adopted under the authority of the criminal law power still needs to be tied to a
penal objective. In other words, while Parliament may employ various regulatory
… Ib at para. 151 [emphasis added].
” Canadian Pacific, supra note 100 at 1070.
“o See also Giroux, supra note 74 at 766 who notes that, while the Act imposes certain obligations
consequential to a spill directly, the precise circumstances in which the relevant provisions apply are
attendant upon the Executive having made use of its regulatory authority.
.. That the Charter’s procedural guarantees can give rise to a number of complex constitutional is-
sues in a regulatory context was also noted by Professor Leclair as the doctrinal proponent of the
“regulatory” construction of the criminal law power. See Leclair, supra note 60 at 170, n. 176.
112 This doubt, of course, arises only on the presupposition that the challenge of achieving sustain-
able development requires appropriate policy responses at the federal level, and should not be left in
its entirety to programmes at the provincial level. The latter alternative is apparently what Professor
Leclair prefers lest any attempt on the part of Parliament to implement a policy of sustainability at the
federal level will invade areas traditionally under provincial jurisdiction and, indeed, consume provin-
cial legislative powers. See Leclair, ibid. at 169, n. 171.
1998]
S. DEIMANN – R. v. HYDRO-QU BEC
techniques to prevent injury to the environment, the ulterior motive behind such leg-
islation must still be retribution (or at least the threat of retribution) should injury oc-
cur and preventive regulatory measures fail. There can be no doubt that certain forms
of behaviour which show wanton disregard for the environment as an essential and
indispensable public collective good merit this type of approach. Similarly, where the
economic differentials are such as to furnish an overwhelming incentive to circumvent
whatever norms and standards might be established in a non-penal fashion, the deter-
rent of the criminal law may be needed to give teeth to environmental norms and
standards.”3
Achieving sustainability, however, will require more subtle policy approaches
than the logic of prohibition and punishment.”‘ In addition to proscribing particularly
egregious forms of environmental misbehaviour, sustainability –
understood as eco-
nomic development that meets the needs of the present without compromising the
ability of future generations to meet their own needs”5 –
requires anticipating future
needs. Hence there is a need to identify policy responses to economic or social prac-
tices that may not pose any serious risk of environmental harm today, but that may do
so in the longterm. This is an ongoing process that takes account of evolving scientific
knowledge.”6 Whether legislation which may have been freed from the bounds of the
conventional form of penal legislation but that in substance continues to be tied to the
notion of punishment will be of much use in meeting this challenge must be a matter
of some debate.”7 Significantly, in a number of jurisdictions outside Canada,”‘ the re-
sponse to the challenge of sustainability has focussed on policy measures that do not
‘. Waste disposal may be one area of environmental law where the economics render recourse to
tough regulatory and indeed criminal legislation indispensable. Here any attempt at implementing
fully the “polluter pays” principle by charging producers of waste the full (social and environmental)
cost of waste disposal immediately creates an incentive for illegal waste disposal. See S. Rose-
Ackerman, Controlling Environmental Policy. The Limits of Public Law in Germany and the United
States (New Haven: Yale University Press, 1995) c. 3B.
” See, for instance, R Elder, supra note 93 at 847ff.
‘”See Our Common Future, supra note 59 at 8. See also the definition in s. 3 of Bill C-32, supra
note 82.
.6 See Elder, supra note 93 at 849.
‘ The Canadian legislator, at any rate, seems to perceive a growing need to pursue environmental
policy goals using, on the enforcement side, policy tools other than the punitive imposition of fines or
other criminal sanctions. See Bill C-32, supra note 82, Part 10, ss. 295ff. which provides for the pos-
sibility of Environmental Protection Alternative Measures as a response in lieu of prosecution for
certain contraventions under the CEPA, supra note 4.
,3’ See M. Phillipson, “Implementing Sustainable Development in New Zealand: The Resource
Management Act 1991” (1994) 4 J.E.L.P. 222. Some European jurisdictions have sought to spell out
consensus-based environmental policy plans that lay down binding policy goals and targets for the
implementation of sustainability. See e.g. Luxembourg, Ministhre de ‘Environnement, Avant Projet
de Plan National pour un Diveloppement Durable (Luxemburg: Minist~re de l’Environnement,
1997), online: Ministhre de l’Environnement du Luxembourg
(date accessed:19 October 1998) which is inspired by the Netherlands’ National Environmental Policy
Plan, online: Resource Renewal Institute
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revolve around the pursuit of penal objectives but rather encompass policy tools ori-
ented more towards persuasion and consensus.”
C. Internal Limits
Hydro-Qudbec’s judicial reinforcement of Parliament’s regulatory capacities co-
incides with deregulatory trends which may be developing in other fora and contexts.
The propensity for the Accord”a to undo, through the mechanisms of Canadian
executive federalism, what has been finely crafted at the judicial level has already
been noted. It should be remarked, of course, that harmonization in and of itself is not
necessarily an impediment to further developing environmental policy in a federal
system. Indeed, acknowledging the co-existent responsibility of vertically differenti-
ated actors in a system of multi-layered government inevitably gives rise to issues of
co-ordination and co-operation. What is crucial in such a context, however, is that, as
the European experience demonstrates, 2′ harmonization does not inhibit the ability of
one of the participants to engage in environmental unilateralism, and to create a dy-
namic for upward harmonization by adopting more stringent rules and addressing
new concerns.” Whether the Accord is paying more than mere lip-service'” to this
“‘ It would seem though that the Canadian response in this respect has been to provide fora for the
elaboration of more consensus-based goals. See e.g. National Round Table on the Environment and
the Economy Act, S.C. 1993, c. 31.
, oSupra note 9.
2 See E. Rehbinder & R. Stewart, “Legal Integration in Federal Systems: European Community
Environmental Law” (1985) 33 Am. J. Comp. L. 371
.. It is precisely this possibility for upward harmonization and environmental unilateralism that is
enshrined in the concept of defacto concurrency of federal and provincial environmental protection
statutes under ss. 91 and 92 of the Constitution Act, 1867. Under the paramountcy doctrine, the exis-
tence of federal standards, based on the criminal law power for instance, does not preclude the opera-
tion of more stringent provincial standards, since compliance with the latter standard does not auto-
matically entail violation of the former. See Leclair, supra note 60 at 140, n. 10 (citing O’Grady v.
Sparling, [1960] S.C.R. 804, 25 D.L.R. (2d) 145 and Ross v. Registrar of Motor Vehicles, [1975] 1
S.C.R. 5,42 D.L.R. (3d) 68). For the concept of environmental unilateralism see H. Ward, “Environ-
mental Unilateralism in the European Union” [1996] 1 ELM Newsletter 2. For the difficulties that
harmonization of standards in a context of divergent economic and ecological conditions can pose see
P.M. Johnson & A. Beaulieu, The Environment and NAFTA. Understanding and Inplementing the
New Continental Law (Washington, D.C.: Island Press, 1996) at 47-51.
‘= The main Accord, supra note 9, does contain a qualified assurance that “the environmental meas-
ures established and implemented in accordance with this Accord will not prevent a government from
introducing more stringent environmental measures to reflect specific circumstances or to protect en-
vironments or environmental values located within its jurisdiction” (ibid., Principle I I [emphasis
added]). The Standards Sub-Agreement, in contrast, is replete with language stressing a clear demar-
cation of roles and responsibilities (see supra note 13 and accompanying text).
1998]
S. DEIMANN – R. V. HYDRO-QUEBEC
947
principle may again be a matter of debate, given that the factual assumptions under-
lying its conceptual starting-point have been questioned.'”
D. External Limits
More significant still may be developments under international trade law. It is
perplexing to note in this context that the Canadian government has been most ac-
tively involved in efforts to impose trade disciplines on itself as well as other WTO
members that would, for all practical purposes, render nugatory the very powers (es-
pecially in their precautionary dimension) to regulate that have been attributed to Par-
liament by the Supreme Court of Canada by virtue of section 91(27) of the Constitu-
tion Act, 1867.
Canada, in 1997, joined the United States in an action before the WTO that
sought to challenge under the Uruguay Round’s Agreement on the Application of
Sanitary and Phytosanitary Measures'” the ability of the European Community (EC)
to ban the use of synthetic or specifically administered natural growth hormones in
bovine meat production and to prohibit imports of meat coming from treated ani-
mals.’2″ Following a series of scandals involving the illicit use of oestrogens in the
1980s, the Community authorities had introduced a comprehensive ban in reaction to
growing consumer concerns.”
In the face of criticism from the United States and Canada –
and ultimately a le-
gal challenge based on the obligation to base sanitary and phytosanitary measures on
“2 For a summary of some of the criticism see Canada, Standing Committee on Environment and
Sustainable Development, Harmonization and Environmental Protection: An Analysis of the Har-
monization Initiatives of the Canadian Council of Ministers of the Environment (Ottawa: The Com-
mittee, 1997) [hereinafter Harmonization and Environment]. It is indeed difficult to see how there can
be “physical” overlap after a decade of government downsizing and deregulation that –
in the case of
some provincial ministries of environment –
has led to budgets being slashed by almost one half.
See S. Fine, “Environmental Protection Thinning” The Globe and Mail (19 August 1997) Al, A8.
‘2’ Agreement Establishing the World Trade Organization, (1994), Annex IA, online, WTO
(last modified:19 October 1998) [hereinafter SPS
Agreement].
,26
]t is submitted that the decision to join in an action which strikes at the heart of the precautionary
principle constitutes a prime example of a “lack of co-ordination and integration among federal enti-
ties and across jurisdiction” that the Commissioner of the Environment and Sustainable Development
recently reiterated in his 1998 report as one of the key “weaknesses in the federal government’s man-
agement of environmental and sustainable development issues” (Canada, Commissioner of the Envi-
ronment and Sustainable Development, 1998 Report of the Commissioner of the Environment and
Sustainable Development (Ottawa: Office of the Auditor General, 1998) c. 3, at para. 3.67, online: Of-
fice of the Auditor General of Canada and the Commissioner of the Environment and Sustainable De-
velopment
‘ See EC, Council Directive 81/602/EEC of 7 August 1981, [1981] O.J. L. 222 at 32ff.; EC, Coun-
cil Directive 88/146/EEC of 16 March 1988, [1988] OJ. L. 70 at 16ff.; EC, Council Directive
88/229/EEC of 21 May 1988, [1988] O.J. L. 128 at 36ff.; the ban was re-enacted and legislatively
consolidated by EC, Council Directive 96/22/EC of23 May 1991, [1996] OJ. L. 125 at 3ff.
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an assessment of risks under article 5.1 of the SPS Agreement’28 –
the EC sought to
justify its measure by reference to the precautionary principle and the views of a mi-
nority of scientists. In particular, the EC cited a 1987 study by the International
Agency for Research on Cancer (“IARC”) which had concluded an appreciable health
risk existed in relation to a group of substances to which one of the growth hormones
at issue was said to belong.’2
The original Dispute Settlement Panel dismissed the Community authorities’ de-
fence and held that the EC had failed to demonstrate that its more stringent measures
were based on a risk assessment within the meaning of article 5.1 of the SPS Agree-
ment.’0 In addition, the Panel found the EC measures to run afoul of another provision
of the SPS Agreement that requires WTO members to be consistent in their level of
protection and not to engage in discrimination against other WTO members nor dis-
guised restrictions to international trade.” The EC had violated the latter obligation
not only because under the relevant EC legislation it continued to be legal to use po-
tentially cancerogenic substances in the comparable situation of pig-farming, but also
because the EC had failed to regulate naturally occurring levels of growth hormones
not only in beef but in any product. 2
Although the WTO’s Appellate Body reversed the original Panel on this as well
it confirmed the Panel’s ruling with respect to the
as on a number of other points,’
limited applicability of the precautionary principle within the ambit of the SPS
‘ Supra note 125.
‘ EC – Measures Concerning Meat and Meat Products (Hormones) (Complaint by the United
States) (1997), WTO Doc. WT/DS26/RIUSA at paras. 4.109-4.239, (Panel Report) [hereinafter Hor-
mones (U.S.)], online: WTO
1998). Essentially identical arguments were made in the proceedings brought by Canada, see EC
Measures Concerning Meat and Meat Products (Hormones) (Complaint by Canada) (1997), WrO
Doc. WYDS4&8RCAN, (Panel Report), online: WTO
accessed: 19 October 1998).
‘” Hormones (U.S.), ibid. at paras. 8.91-8.159.
‘3’ See art. 5.5 of the SPS Agreement, supra note 125:
With the objective of achieving consistency in the application of the concept of appro-
priate level of sanitary or phytosanitary protection against risks to human life or health,
or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable
distinctions in the levels it considers to be appropriate in different situations, if such
distinctions result in discrimination or a disguised restriction on international trade.
at
para.
221
m Hormones (U.S.), supra note 129 at paras. 8.167-8.245.
. EC – Measures Concerning Meat and Meat Products (Hormones) (1998), WTO Doc.
online: WTO
WTIDS26,48/AB/R
point on which the Appellate Body reversed the Panel concerned the nature and status of international
norms and guidelines. Under the Panel’s construction of the SPS Agreement, supra note 125, hitherto
non-binding guidelines by international bodies such as the Codex Alimentarius Commission (which
function with little if any democratic oversight or accountability) would have acquired the status of
binding norms.
(Appellate
Report),
Body
1998]
S. DEIMANN – R. v. HYDRO-QUIBEC
949
Agreement.'” In particular, the Appellate Body upheld the Panel’s conclusion that the
EC had failed to demonstrate that its measures had been based on a risk assessment
within the meaning of article 5.1 of the SPS Agreement, and that the 1987 study by
the IARC was not relevant to the case because it considered the toxicity of substances
in abstracto and not in their concrete application as growth hormones in cattle rear-
ing.’35
In other words, while as a matter of Canadian constitutional law,’ 3 it is incumbent
upon Parliament to pass policy judgments in the face of inexistent or inconclusive sci-
entific evidence, such legislative responses are, as a matter of WTO law, subject to re-
view in the WTO’s dispute settlement fora and possibly to far-reaching trade disci-
plines. WTO law thus seeks to impose fetters on democratically legitimated decision-
makers where Canadian constitutional law stresses the privileged position of Parlia-
ment to decide – on the side of precaution if it so wishes – matters of policy.’37
Conclusion: The Rationale for (Federal) Environmental Regulation
The ruling in Hydro-Quibec amounts to a welcome confirmation of the federal
role in environmental policy-making. Hydro-Quebec is a useful reminder that all lev-
3 Ibid. at para. 124. The Appellate Body’s ruling on this point remained ambiguous. On the one
hand, it agreed with the EC’s submission that the provisions of the SPS Agreement, supra note 125,
could not, contrary to the Panel’s assertion, be taken to exhaust the precautionary principle. On the
other, the Appellate Body ultimately held that regardless of the principle’s status in international envi-
ronmental law it could not override the text of the provisions of the SPS Agreement, and hence was of
limited application to measures falling within the ambit of the SPS Agreement.
… Ibid. at paras. 192-209. Presumably this means that the EC can only come to a conclusion as to
the existence of an appreciable health risk on the same basis the Codex Alimentarius Commission
(and in its wake the United States and Canada) had reached the opposite conclusion (administering
the substances in question to castrated rhesus macaque monkeys and ovariectomized cynomolgus
monkeys to test their cancerogenicity). It should be pointed out that a consequential dispute has arisen
between Canada and the United States on the one hand and the EC on the other as to the precise im-
port of the Appellate Body’s ruling. On 29 May 1998, in an arbitration procedure requested by all the
parties pursuant to article 21.3(c) of the Understanding on Rules and Procedures Governing the Set-
tlement of Disputes, Agreement Establishing the World Trade Organization (1994), Annex 2, 33
I.L.M. 1226, online: WTO
the EC submission (and the view expressed here), the Appellate Body had found the EC measures not
to be based on a deficient risk assessment but rather as bearing no reasonable relation to whatever risk
assessment had been performed by the Community authorities in addition to the IARC studies. See
EC-Measures Concerning Meat and Meat Products (Hormones) (1998), WTO Doc. WT/DS25/15-
WT/DS48/13
online:
WTO
36 See supra note 70 and accompanying text.
1
‘ “The recent report on the Accord, supra note 9, by the House of Commons Standing Committee
on Environment and Sustainable Development also observed the apparent conflict between central
elements of modem environmental policy and recent developments in WTO law, see Harmonization
and Environment, supra note 124 at conclusion no. 9.
Arbitrator),
of
the
(98-2227)
(Award
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els of government need to shape their respective policies with a view to accomplish-
ing environmental quality goals, given the cross-cutting nature of the problem that
does not stop at provincial boundaries, and that has all the potential –
because of its
real or perceived implications for competitiveness ‘ –
for dragging governments into
strategic behaviour.
It is unfortunate in this respect, however, that what has been recognized at the ju-
dicial level should be undone at the executive level or through the disciplines of inter-
national trade law. While harmonization projects such as the Canada-Wide Accord
can make an important contribution towards developing further environmental policy
across different jurisdictions –
provided they do not inhibit lead jurisdictions from
forwarding stricter standards –
the mutual reinforcement of standards or the race to
the top does not necessarily appear to be the principal aim of the CCME-sponsored
initiative. Similarly, international trade law should not undermine the ability of gov-
ernments to err on the side of caution in favour of the environment, especially not if
the power to review democratically legitimated decisions is based on the spurious no-
tion of science being capable of providing a definitive answer to the question of
whether regulation is appropriate in particular circumstances.”‘
As an American commentator has shown, arguments for decentralization, in-
spired by an economic analysis of environmental policy and federalism,'” frequently
… See Johnson & Beaulieu, supra note 122 at 44-47.
“9 See supra note 77. In other words, WTO law (with its emphasis on science as the predominant, if
not exclusive, justification for environmental regulation) ignores what Canadian constitutional juris-
prudence wisely recognized –
the potential for science to be instrumentalized. See J. Atik, “Science
and International Regulatory Convergence” (1997) 17 Nw. J. of Int’l L. & Bus. 736. As Atik indi-
cates, the relevant provisions in the SPSAgreement raise the spectre of WTO members targetting eco-
nomically and scientifically weak WTO members to obtain the repeal of regulatory measures that
have also been enacted by stronger WTO members and that may have adverse effects on trade rela-
tions and the volume of trade, in particular on exports by the WTO member seeking to challenge a
particular instance of regulation (see ibid. at 755, n. 67). Rephrased, WTO provisions –
unlike Cana-
dian constitutional law –
require members to “outscience” one another when wishing to engage in
regulation. What the necessity to outscience can mean in terms of delay for appropriate and necessary
anti-pollution measures was vividly demonstrated by Canadian efforts to combat acid rain, efforts that
required active collaboration on the part of the United States authorities which was forthcoming only
once Canadian regulators had managed to outscience their American counterparts. See G.B. Doern &
T. Conway, The Greening of Canada: Federal Institutions and Decisions (Toronto: University of To-
ronto Press, 1994) at 124ff.
,40 An influential article in the American debate on the appropriate role of federal and state regula-
tors in environmental policy proved to be W.E. Oates & R. M. Schwab, “Economic Competition
Among Jurisdictions: Efficiency Enhancing or Distortion Inducing?” (1988) 34 J. of Pub]. Economics
333. The arguments advanced in this article for decentralized environmental policy-making are taken
up by R.L. Revesz, “Rehabilitating Interstate Competition: Rethinking the ‘Race to the Bottom’ Ra-
tionale for Federal Environmental Regulation” (1992) 67 N.Y.U. L. Rev. 1210. For a convincing re-
buttal, especially as regards the underlying factual assumptions behind the Oates-Schwab model, see
D.G. Esty, “Revitalizing Environmental Federalism” (1996) 95 Mich. L. Rev. 570; P. P. Swire, “The
Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdic-
1998]
S. DEIMANN – R. v. HYDRO-QUtBEC
coincide with arguments for deregulation.” Against the precepts of neo-classical eco-
its narrow focus on allocative resource efficiency “‘ at the expense of
nonic theory –
an equitable distribution of benefits and burdens, including environmental endow-
it is imperative to bear in mind the underlying rationale for economic
ments’
regulation, including environmental regulation. This has been stated with exceptional
clarity by Cory J.:
–
The realities and complexities of a modem industrial society coupled with a
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.
Regulatory legislation is essential to the operation of our complex industrial so-
ciety; it plays a legitimate and vital role in protecting those who are most vul-
nerable 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.TM
tions in Environmental Law” (1996) 13 Yale J. of Regulation 67. Swire provides an equally inspiring
criticism of regulatory “competition” in environmental policy. Economics-inspired analyses are also
rapidly gaining ground in the interpretation of the subsidiarity clause in article 3b of the EC-Treaty,
Treaty of Rome, thus raising the concrete spectre of deregulation through decentralization of environ-
mental policy in Europe. See Centre for Economic Policy Research, ed., Making Sense of Subsidiar-
ity: How Much Centralization for Europe? (London, U.K.: CERP, 1993), c. 3, 7; R. van den Bergh,
M. Faure & J. Lefevere, ‘The Subsidiarity Principle in European Environmental Law: An Economic
Analysis” in E. Eide & R. van den Bergh, eds., Law and Economics of the Environment (Oslo: Ju-
ridisk Forlag, 1996) 121.
“‘ See J.P. Trachtman, “International Regulatory Competition, Externalization, and Jurisdiction”
(1993) 34 Harv. Int’l L. J. 47 at 65, n. 79.
14′ See M.S. Common, Sustainability and Policy: Limits to Economics (Cambridge: Cambridge
University Press, 1995), c. 6, 7. For the mindset of some of the economic analysis of law and public
policy, including environmental policy, see also S. Rose-Ackerman, “Economics, Public Policy, and
Law” (1996) 26 Victoria Univ. of Wellington L. Rev. 1. Rose-Ackerman also furnishes an alternative
economic perspective on federalism issues in environmental policy that lends considerable support to
a lead role of centralized decision-makers in order to avoid strategic behaviour –
the trap posed by
the game-theoretical category of the prisoners’ dilemma – on the part of decentralized decision-
makers. See S. Rose-Ackerman, supra note 113, c. 3.
143 For an important attempt to recover the (re-)distributional element in environmental policy from a
narrow focus on allocative efficiency see R.J. Lazarus, “Pursuing ‘Environmental Justice’: The Dis-
tributional Effects of Environmental Protection” (1993) 87 Nw. U. L. Rev. 787 at 809ff. For a very
similar analysis in the international context, see E. Brown-Weiss, “The Imperative for the Twenty-
First Century” in W. Lang, ed., Sustainable Development and International Law (London: Graham &
Trotman, 1995) 17 at 22ff.
‘” Wholesale Travel Group, supra note 96 at 233, 234.
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There can be no doubt that the environment too constitutes a vulnerable element that
is worthy of nation-wide protection through appropriate regulation at all levels of
government.
