Plastic Straws: Are they Criminal?

Original Date: November 17, 2023; Updated January 14, 2024

Author: Tim Platnich

In the recent Federal Court decision: Responsible Plastic Use Coalition v. Canada (Environment and Climate Change), the court held, in effect, that the ban on single use plastics was unconstitutional as being outside of the federal government's criminal law power. So no, plastic straws are not criminal.

The decision concerned an Order-in-Council (akin to an executive order of the President in the United States) that added all plastic manufactured items (PMIs), including single use plastics (SUPs), to a schedule of Toxic Substances under the Canada Environmental Protection Act. Inclusion on this schedule allowed for the prohibition (ban) of some or all of these PMIs as determined by regulations issued from time to time. Certain SUPs, including straws became subject to bans as of December, 2022 (importation and manufacture) with further bans scheduled for December, 2023 (use).

Remember that Canada is a federal state. Legislative powers are divided between the federal government and the provincial governments. The division of powers, among other matters, is dealt with in the Constitution Act of 1867. Simply put, each order of government, federal and provincial, must stay in their own lane, jurisdictionally.

Under subsection 91(27) of the Constitution Act of 1867, the federal government has the jurisdiction to legislate in the area of criminal law. Legislation will fall under this subsection if it contains three elements: 1) a criminal law purpose; 2) a prohibition; and 3) is accompanied by a penalty.

The Supreme Court of Canada (SCC) in R. v. Hydro-Quebec has held that prohibitions of identified toxic substances is a legitimate public objective in the exercise of the criminal law power. This was an expansion of what would historically be considered the subject matter of criminal law: health, security and public order. But in this case, the SCC warned the federal government that the use of the criminal law power must stay within certain 'guardrails' to avoid encroaching upon provincial jurisdiction.

There is an abundance of provincial legislation that looks like criminal law. This legislation contains prohibitions and penalties. For example, provincial legislation prohibits speeding accompanied by a penalty. Speeding could be considered as related to health, security and public order. Yet, the regulation of speeding and most traffic related matters, is under provincial jurisdiction - for reasons that I will not get into here.

The point is that provinces, acting within their jurisdictions, can legislate prohibitions and penalties. This is part of a regulatory process within their jurisdiction. The federal government cannot legislate in matters of provincial jurisdiction by simply deeming a matter to have a criminal law purpose. Where the federal government relies upon its criminal law power, it must show that the purpose of the law is truly a criminal matter and not simply a regulatory matter otherwise under provincial jurisdiction.

In the Responsible Plastic Use case, so far as the issue of the criminal law power was concerned, the federal government had to show that the dominant purpose of including plastics as toxic substances was a criminal matter. The issue came down to: was the inclusion of plastics as Toxic Substances directed to managing and regulating plastics in the economy or was it about banning them as Toxic Substances in the protection of the environment.

The court found that the purpose of the impugned Order-in-Council was to list plastics as Toxic Substances so that they could be regulated federally.

The court noted, based on the record before it, that plastics are ubiquitous in society and most businesses and organizations use plastics. These businesses and organizations are largely under provincial jurisdiction. Furthermore, the plastic industries that produce or use plastics are under provincial regulatory jurisdiction including the environmental aspects of these activities such as production and disposal of waste products.

The court held that to employ its criminal law jurisdiction, the federal government must show that what is being restricted is actually dangerous. Otherwise the restriction amounts to nothing more than economic regulation.

The court found that not all plastics truly have the potential to cause harm to the environment. By including all PMIs as Toxic Substances the federal government exceeded its criminal law jurisdiction.

The court confirmed that protection of the environment is not strictly either a federal or a provincial matter. Both orders of government have jurisdiction to legislate in relation to the environment. However, in so legislating, each level of government must be able to point to a specific jurisdictional basis. The federal government has been held to have two possible jurisdictional bases for legislating environmental law: its criminal law jurisdiction and its jurisdiction under 'peace, order and good government' (POGG). The federal government was successful in arguing that POGG gave it jurisdiction to legislate a carbon tax. It was unsuccessful in using POGG to regulate industries wholly situated within a province (without anything more) see The Impact Assessment Act case. Furthermore, the federal government's wings have now been clipped in relation to its attempts to regulate the environment under its criminal law power in both this case and the Impact Assessment Act case.