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TORONTO – The Canadian Constitution Foundation has been granted intervener status in the legal challenge to a federal “plastics ban” being heard on June 25 and 26 at the Federal Court of Appeal. The CCF will argue that the federal “plastics ban” is outside the jurisdiction of Parliament’s criminal law power.

In April 2021, the federal Cabinet issued an Order placing “plastic manufactured items” on the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act. Following this Order, a group of plastic industry companies applied to the Federal Court for a judicial review. They argued that the Order, which amounted to what has been called a “plastics ban,” was unreasonable and unconstitutional.

In November 2023, the Federal Court sided with the plastics consortium and struck down the Order. The Court held that “plastic manufactured items” is too broad a category to include on Schedule 1 of the List of Toxic Substances as there was no evidence to establish that all such products are harmful. The Federal Court also held that the Order extended beyond the federal government’s ability to regulate the environment through the criminal law power. As a result, the Order was quashed. The case is now being heard by the Federal Court of Appeal. 

This case is an important one related to expanding federal overreach into provincial jurisdiction. Federal environmental regulation can pose unique challenges to the division of powers, particularly where a claimed federal environmental target is, like this one, submerged in a sea of local and provincial jurisdiction. If the statute Is not tightly focused on the federal target, or if the federal target is overly broad, the law’s effects can become untethered from a federal aspect and extend too deeply into areas of provincial jurisdiction.  

The CCF will intervene to argue that, when invoked to uphold federal environmental regulation, the criminal law power should be used cautiously. The preservation of constitutional exclusivity requires careful scrutiny of a law’s “effects” and attention to the dividing line between effects that are merely “incidental” and those that cross into impermissible regulation. The CCF will also argue that the preservation of the division of powers in the criminal law context demands a clear and substantive “reasoned apprehension of harm” threshold. 

CCF’s Litigation Director, Christine Van Geyn said the case fits into “the unpleasant and unconstitutional pattern of the current federal government overstepping into provincial jurisdiction.”

“The federal government seems obsessed with trying to overregulate the lives of Canadians and with meddling in the provinces’ business, contrary to our constitutional division of powers. The courts slapped down the Trudeau government’s Impact Assessment Act for overstepping into provincial jurisdiction, and here they are trying the same thing again with this plastics ban, once again in the name of environmental protection,” she added. “Enough is enough. That’s why we are intervening in this case to provide clarity on the scope of the federal criminal law power to regulate the environment.”

The Canadian Constitution Foundation is represented in its intervention by Brett Carlson and Rebecca Lang of Borden Ladner Gervais LLP. 

You can read the CCF’s intervener factum here.