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Environment - Charter. Biogenie Canada Inc. c. Canada (Food Inspection Agency) [useful]
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
Here the court usefully considered a Charter s.7 'overbreadth' issue, which is sometimes considered in environmental issues:[14] ... Englobe also submitted that even if the Court were to find that these provisions fell within the concurrent jurisdiction over agriculture, they would still breach section 7 of the Charter. According to Englobe, the impugned provisions are overbroad because they target fertilizers that are not used for agricultural purposes (for example, on residential lawns or gardens, golf courses, or municipal parks).
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[20] With respect to the argument based on section 7 of the Charter, the trial judge agreed with the respondent that the prohibition against the manufacturing, sale, importation or exportation of fertilizer and supplements that present a risk of harm to health or the environment is rationally connected with the purpose of ensuring the safety of fertilizers and supplements. Therefore, section 3.1 of the Act and section 2.1 of the Regulations are not overbroad. Accordingly, he rejected Englobe’s arguments that the definition of the terms "“fertilizer”" and "“supplement”" were too broad, and that mere proof of a risk is too low a threshold. In his view, overbreadth cannot result from a disagreement as to the threshold of risk or danger that Parliament is prepared to tolerate.
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C. Did the Federal Court err in finding that section 3.1 of the Act and section 2.1 of the Regulations are not overbroad and therefore not contrary to section 7 of the Charter?
[61] As it did before the Federal Court, the appellant argued that section 3.1 of the Act and section 2.1 of the Regulations are overbroad inasmuch as the concept of "“risk of harm”" and the expansive definitions of "“fertilizer”" and "“supplement”" in section 2 of the Act may include substances that are not dangerous and punish conduct that is beneficial to the environment. It also criticizes the trial judge for finding that the provisions contained an intelligible standard, and it reiterates that they are so imprecise as to violate the principles of fundamental justice.
[62] In my view, the trial judge correctly rejected these submissions, and there is no need to consider them in any detail, especially since the appellant dealt with them only briefly in its memorandum and at the hearing.
[63] A provision is said to be so broad that it violates the principles of fundamental justice when it interferes with conduct that bears no connection to its objective and goes further than required to achieve its purpose: see R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761 [Heywood] at 794; Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford] at para. 101. In other words, as the Supreme Court states in Bedford, "“overbreadth deals with a law that is so broad in scope that it includes ""some ""conduct that bears no relation to its purpose”" (at para. 112, emphasis in original). In such a case, the provision is said to be arbitrary in part. The Supreme Court nevertheless found it appropriate to point out that the courts must show deference to the means selected by the legislature, which must have the power to make policy choices (Heywood at 793).
[64] In this case, Parliament wished to guarantee the safety of fertilizer and supplements, and to that end, it chose to prohibit fertilizer and supplements that present a risk of harm. Contrary to the appellant’s argument, it cannot be said that there is no rational connection between the prohibited conduct and the objective sought. As the trial judge stated, the impugned provisions do not apply to substances that pose no danger, and they therefore cannot be said to prohibit safe products and interfere with conduct that bears no connection to the objective.
[65] Furthermore, section 3.1 of the Act and section 2.1 of the Regulations are not so vague or imprecise as to violate the principles of fundamental justice. In R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, the Supreme Court established that the vagueness doctrine should not be used to prevent State action in furtherance of valid social objectives by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. What is important is that the law be sufficiently precise to give rise to legal debate and to delineate an area of risk within which citizens may make their decisions.
[66] Legislatures have applied the concepts of risk and the prevention of future harm on several occasions, and the courts have found them to be intelligible legal standards: see, for example, R. v. Katigbak, 2011 SCC 48 at paras. 64–71; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 at 595–598; and Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99 at paras. 14 and 20. The Courts have been particularly tolerant in environmental matters and sensitive to the fact that it is not always possible to precisely determine all potential harmful conduct in advance.
[67] The decision in Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, provides an interesting illustration of this principle. At issue in that case was a provision of Ontario’s Environmental Protection Act, R.S.O. 1980, c. 141, paragraph 13(1)(a), that prohibited the emission into the environment of a contaminant that caused or was likely to cause the "“impairment of the quality of the natural environment for any use that can be made of it”". The appellant claimed that the provision was so vague as to violate the principles of fundamental justice. Justice LaForest, for the majority, first noted that environmental protection laws are framed in a manner capable of responding to a wide variety of environmentally harmful scenarios and that none of those laws had been declared void for vagueness. He then described the two choices available to legislators in the area of environmental protection: to enact detailed provisions which prohibit the release of particular quantities of enumerated substances into the natural environment, or to choose a more general prohibition and rely on the courts to determine when the release of a substance violates the prohibition of pollution. He added, at paragraph 53:... The latter option is, of course, more flexible and better able to accommodate developments in our knowledge about environmental protection. However, a general enactment may be challenged (as in the instant case) for failing to provide adequate notice to citizens of prohibited conduct. Is a very detailed enactment preferable? In my view, in the field of environmental protection, detail is not necessarily the best means of notifying citizens of prohibited conduct. If a citizen requires a chemistry degree to figure out whether an activity releases a particular contaminant in sufficient quantities to trigger a statutory prohibition, then that prohibition provides no better fair notice than a more general enactment. The notice aspect of the vagueness analysis must be approached from an objective point of view: would the average citizen, with an average understanding of the subject matter of the prohibition, receive adequate notice of prohibited conduct? If specialized knowledge is required to understand a legislative provision, then citizens may be baffled. [68] I find that these remarks ring true in the case before us. Statutes do not always require precision and scientific certainty, which are often unattainable and could in addition undermine effectiveness, particularly in matters as complex as environmental protection or public health. The case law teaches that it is sufficient to provide an intelligible standard that may be debated before the courts. This is all the more true when, as in the case before us, an administrative document like the Memorandum specifies how the powers conferred on the CFIA will be exercised and how the notion of risk of harm will be interpreted. For these reasons, I am of the view that the appellant’s contentions that section 3.1 of the Act and section 2.1 of the Regulations are overbroad or imprecise must be rejected.
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