Case Study: R v Hydro

NAME OF LEGAL CASE:

R. v. Hydro Quebec (Supreme Court of Canada [1997] 3 S.C.R. 213)

PARTIES INVOLVED:
Appellant: Attorney General of Canada
Respondent: Hydro-Quebec

INTERVENERS:
Attorney General for Saskatchewan
IPSCO Inc. Societe pour vaincre la pollution inc. (SVP);
Pollution Probe;
Great Lakes United;
Canadian Environmental Law Association;
Sierra Legal Defense Fund

LEGAL ISSUES AT STAKE:

Whether the federal government has the constitutional power to set up a regulatory
scheme for controlling the emission substances that may be harmful to the environment
or dangerous to human health, either under the “criminal law” head of federal powers or
under the federal government’s residual “peace order and good government” jurisdiction.

LEVELS OF COURT INVOLVED:

Court of Quebec Criminal Division
Quebec Superior Court
Quebec Court of Appeal
Supreme Court of Canada

BACKGROUND TO CASE:
Hydro-Quebec released polychlorinated biphenyls (PCBs). Although the release
of PCBs in small quantities is not illegal section 6(a) of the Canadian Environmental
Protection Act (CEPA) stipulates that it is illegal to release PCBs over a certain quantity.
Hydro-Quebec was charged with “releasing PCBs in a quantity greater than that
permitted by section 6(a) of the Chlorobiphenyls Interim Order, adopted and enforced
pursuant to sections 34 and 35 of the CEPA”. They were also charged with a second
offence of failing to report the incident to an inspector as stipulated by sections 34 and 35
of CEPA.
CEPA is a federal statute. Part II and Part III of the act specifically address the
regulation of toxic substances. They define a toxic substance as one that “is entering or
may enter the environment” under conditions “having or that may have an immediate or
long-term harmful effect on the environment”, “constituting or that may constitute a
danger in Canada to human life or health” CEPA section 11.

Upon being by charged with the two violations of CEPA, Hydro-Quebec pleaded
not guilty and moved to have CEPA declared unconstitutional, on the grounds that the
discharge of effluents was a matter of provincial jurisdiction. The constitutional
argument succeeded in the Quebec Court’s Criminal Division. The decision was
Case Study: R v Hydro

appealed and subsequently upheld by the Quebec Superior Court and Quebec Court of
Appeal. All agreed that the above mentioned sections of CEPA were ultra vires (beyond
the powers of) the Federal Government. As a result of these decisions the Federal
Government appealed the decisions to the Supreme Court of Canada

RULING :
In a 5 to 4 split decision, the Supreme Court of Canada allowed the appeal (overturned
the lower courts’ decisions) and found that the regulatory scheme created by CEPA was
indeed within the constitutional powers of the federal government. The majority found
that the CEPA provisions fell within the definition of “criminal law” in that they involved
prohibitions backed by penalties and were directed at a legitimate purpose of preventing
harm to the public, and were not a “colourable” intrusion into a defined area of provincial
jurisdiction. The majority found that because the law fell within the criminal head of
federal power, there was no need to decide whether it fell under the “peace, order and
good government” power.
The dissent found that the law did not fall within the ambit of criminal law. The dissent
agreed with the majority that the law was directed at a legitimate purpose, but found that
the impugned provisions did not have the form of criminal law—i.e. the creation of a
punishable offense based on a blanket prohibition of some activity. Rather, it created a
regulatory scheme allowing the release of toxic substances in accord with terms and
conditions set at the discretion of the federal Cabinet. The dissent also found that
because CEPA used broad language of protecting the environment and human health, the
object of the regulatory scheme lacked the “singleness, distinctiveness and indivisibility”
that would clearly distinguish it from matters of provincial jurisdiction, and did not pick
out matters of potentially shared federal and provincial concern that the provinces would
be incapable of effectively regulating on their own. For these reasons the dissent found
that the CEPA scheme was not a valid exercise of the federal government’s residual
“peace, order and good government” power.

SIGNIFICANCE AND IMPLICATIONS OF THE CASE:

The practical upshot of the Supreme Court decision was to reaffirm a broad federal power
to regulate environmental hazards. From a legal point of view, the way in which the court
did so was to blur the distinction between criminal and regulatory law. The legal
implication of the majority’s reasoning seems to be that criminal law (in the
constitutional context) is not a distinct kind of law (“true crime”, involving blanket
prohibition, mens rea standard of liability, and so on) which only the federal government
can enact, but rather a kind of residual regulatory power over any matter that the
constitution does not expressly place exclusively within provincial jurisdiction.
Law professor David Beatty (1998), while approving of the practical outcome of the
decision, is harshly critical of the majority’s reasoning in the case for two reasons. First,
he argues that the Court’s arbitrary expansion of the interpretation of “criminal law”
threatens to undo fifty years of progress towards rational coherence in Canadian
constitutional jurisprudence. Moreover, by asserting that a regulatory scheme falls under
the federal head of criminal power, it threatens the provinces’ environmental regulatory
Case Study: R v Hydro

powers. Second, he argues that by not upholding CEPA under “peace, order and good
government” the Court failed to build on its previous decisions in Crown Zellerbach and
Oldman River which emphasized federal jurisdiction over the extraprovincial or
transboundary aspects of environmental problems. He suggests that the majority could
have made a convincing case for upholding CEPA on the latter grounds given the lack of
respect toxic chemicals have for provincial and national borders.

REFERENCES:

The Supreme Court decision can be found at:

http://scc.lexum.umontreal.ca/en/1997/1997rcs3-213/1997rcs3-213.html

See also:
Beatty, David M. 1998. “Polluting the law to protect the environment.” Constitutional
Forum 9(2):55-58.