- Bruce Curran
Environmental Law: What’s Criminal Law Got To Do With It?
On the evening of Wednesday October 26th, Dr. Silver Donald Cameron will be screening his new documentary at Robson Hall. He will also be giving a talk at noon on Thursday October 27.
Dr. Cameron is a prolific and highly acclaimed Canadian journalist, author, playwright and university teacher whose writing focuses on social justice, nature and the environment. His documentary is entitled Green Rights: The Human Right To A Healthy World. The central thesis of this new documentary is that Canada ought to enact explicit environmental rights into its constitution. According to the promotional material, Canada is one of a very few member nations of the United Nations that does not have environmental rights embedded in its constitution. At first blush, the subject matter of this documentary seems to bear very little relationship to criminal law. However, upon closer look, the two areas of law (environmental law and criminal law) are very much interrelated.
To understand the nature of this interrelationship, it is necessary to first try and understand some basics about Canada’s environmental regime. Sadly, this is not a simple matter. There is no express recognition of a right to environmental quality or protection that exists in Canadian constitutional instruments, such as the Charter of Rights and Freedoms. Furthermore, the “division of powers” provisions in the Constitution Act do not make it clear which level of government has the power for regulating activities that could be deleterious to the environment. Indeed, Justice LaForest called the environment “a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty.” Due to this “abstruseness”, the environment is considered to be a joint power of the federal and provincial governments, with environmental legislation being enacted at both the federal and provincial level. Key examples of such legislation are the federal government’s Canadian Environmental Protection Act (“CEPA”) and Manitoba’s Environment Act. Moreover, to make matters more confusing from the perspective of criminal law, the federal government’s Criminal Code does not contain express provisions for environmental crimes.
In the absence of express environmental crimes in the Criminal Code, the federal and provincial environmental legislation attempt to prohibit certain types of conduct that has negative environmental impacts, and to impose penalties if these prohibitions are violated. It is in these regulatory offences where criminal law and environmental law intersect. There has been considerable debate about the extent to which such regulatory offences ought to be classified as “criminal law” for the purposes of constitutional division of powers. Furthermore, there has also been confusion and debate about the degree of moral blameworthiness that is required in order to justify punishment. As the reader knows, it is a central tenet of criminal law that there should be no criminal punishment without moral blameworthiness. Express environmental rights in the constitution, which exist in other countries and which Dr. Cameron advocates for Canada, might help to clarify the government’s power to enact environmental offences, and the extent of the accuseds’ defences when charged with such offences.
To conclude, there appears at first instance to be a great deal of merit in Dr. Cameron’s proposal of increased environmental protections in Canada’s constitution, assuming that the appropriate criminal law safeguards for the accused would remain in place. Such protections would assist in simplifying the legal analysis, although are unlikely to resolve all uncertainty surrounding the relationship between environmental law and criminal law. I look forward to watching Dr. Cameron’s documentary. As Oliver Wendell Holmes famously said, “The life of the law has not been logic; it has been experience”. I anticipate that this documentary will do an excellent job of illustrating the experiences of other countries where stronger constitutional protections are in play, and informing any changes Canada should consider to its environmental regime.
 Friends of the Oldman River Society v. Canada (Minister of Transport),  1 SCR 3, 1992 CanLII 110 (SCC).
 See, for example: R. v. Sault Ste. Marie,  2 SCR 1299, 1978 CanLII 11 (SCC); R. v. Wholesale Travel Group Inc.,  3 SCR 154, 1991 CanLII 39 (SCC); R. v. Hydro-Québec,  3 SCR 213, 1997 CanLII 318 (SCC)).
Benidickson, Jamie. Essentials of Canadian Law : Environmental Law, 4th ed, (Toronto: Irwin Law, 2000)
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Canadian Environmental Protection Act, S.C. 1999, c. 33.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Criminal Code, R.S.C., 1985, c. C-46.
Environment Act, C.C.S.M., c. E125