Lamer C.J. and Iacobucci J. (dissenting)
The Chief Justice and Iacobucci J. (dissenting) -- This appeal arose as a result of an interim order made in 1989 by the then Minister of the Environment of Canada, the Honourable Lucien Bouchard. It restricted the emission of chlorobiphenyls (“PCBs”) to 1 gram per day. The respondent, Hydro-Québec, was charged with breaching this Interim Order and challenged the charges by claiming that the Interim Order, as well as the underlying provisions supporting it, were ultra vires Parliament as invading provincial territory.
We have had the advantage of reading the lucid reasons of La Forest J. While we share his concern for the protection of the environment, we are of the view that the impugned provisions cannot be justified under s. 91 of the Constitution Act, 1867 , and are therefore ultra vires the federal government. Because of our disagreement with our colleague’s approach, we will set out the relevant factual and judicial background.
1. Facts
The respondent Hydro-Québec was charged with two infractions under s. 6(a) of the Chlorobiphenyls Interim Order, P.C. 1989-296 (hereinafter “the Interim Order”), adopted and enforced pursuant to ss. 34 and 35 of the Canadian Environmental Protection Act, R.S.C., 1985, c.16 (4th Supp.). It was alleged that the respondent: