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TORONTO – The Canadian Constitution Foundation (CCF) is disappointed that the Federal Court of Appeal has overturned a Federal Court decision that had found the Trudeau government’s decision to label “plastic manufactured items” as toxic was unreasonable. The CCF intervened in the case to help the Court understand the limits of the federal government’s power to use criminal law to regulate plastics.

In 2021, the federal government issued an Order adding “plastic manufactured items” to the List of Toxic Substances under the Canadian Environmental Protection Act (CEPA), which allowed the government to create regulations banning single-use plastics such as straws and bags.

A coalition of plastics companies challenged the Order, arguing it was too broad, as it applied to all plastics even though most aren’t toxic in the normal sense of the word, and unconstitutional because it imposed on provincial jurisdiction.

In 2023, the Federal Court struck down the Order. Today’s decision reversed that, finding that the criminal law would only come into play once a particular type of plastic is regulated by the federal government, which is not the case with the Order itself.

Justice Rennie wrote in a unanimous decision that: “The fact that the [Cabinet] could in theory at some future date, exercise its discretion to sanction objects beyond the scope of the criminal law power does not invalidate the Order.”

Christine Van Geyn, Litigation Director for the CCF, said that while she is disappointed with the result, the Court did find that regulations banning plastics do still need to be valid exercises of the criminal law power.

“This federal government is always looking for new ways to take control over areas that are not theirs, including using environmental protection as an excuse to centralize power in Ottawa,” Van Geyn said.

“The CCF will be there going forward to ensure environmental protection does not become a cover for expanding federal power beyond what the Constitution intended,” she added.

The Canadian Constitution Foundation was represented in its intervention by Rick Williams, Pierre N. Gemson, Brett R. Carlson and Rebecca Lang of Borden Ladner Gervais LLP.