The Canadian Constitution Foundation (CCF) has been granted intervenor status in the legal challenge to a federal plastics ban being heard on June 25 and 26 at the Federal Court of Appeal (FCA). CCF 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,” said Van Geyn in a Thursday press release. “The courts slapped down the [Justin] 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.”The CCF said the federal plastics ban is outside the jurisdiction of Parliament’s criminal law powers. In 2021, cabinet issued an order placing plastic manufactured items on the List of Toxic Substances in Schedule One of the Canadian Environmental Protection Act. Following this order, a group of plastic industry companies applied to the Federal Court of Canada (FCC) for a judicial review. The plastics companies argued the order was unreasonable and unconstitutional.In November, the FCC sided with the plastics consortium and struck down the order. It held plastic manufactured items is too broad a category to include on Schedule One of the List of Toxic Substances, as there was no evidence to establish all such products are harmful.It said the order extended beyond the Canadian government’s ability to regulate the environment through criminal law. When it comes to expanding federal overreach into provincial jurisdiction, the CCF said this case matters. It added federal environmental regulation can pose unique challenges to the division of powers, particularly where a claimed federal environmental target is connected to local and provincial jurisdiction.It is intervening to argue criminal law powers invoked to uphold federal environment regulations should be used cautiously. This is because the preservation of constitutional exclusivity requires careful scrutiny of a law’s effects and attention to the line between incident effects and those crossing into impermissible regulation.The CCF is represented in its intervention by Borden Ladner Gervais LLP lawyers Brett Carlson and Rebecca Lang. Van Geyn concluded by saying 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,” she said. Environment and Climate Change Minister Steven Guilbeault said in November cabinet will likely appeal the FCC’s ruling about plastics regulations. READ MORE: Guilbeault to appeal Liberal’s plastics ban after ruled unconstitutional“The Government of Canada is carefully reviewing the Federal Court judgment and is strongly considering an appeal,” said Guilbeault.“We will have more to say on next steps soon.”
