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Charter - Discretion. Canada (Attorney General) v. Responsible Plastic Use Coalition
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
Here the court considers constitutional/Charter interpretive aspects of 'discretion':[163] The existence of executive discretion, on its own, is not unconstitutional (GGR, at paras. 84–86). This is not a new point, nor is it unique to the division of powers; it has been applied in the context of the 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 [Charter] as well. A statutory provision that grants discretion cannot be interpreted in a manner to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078):[...] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [164] I do not agree, therefore, with the argument that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. A statutory grant of discretionary power should be read on the basis that it will be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter or the Constitution Act, 1867. This principle resonates in the context of matters of health and the environment where broad grants of regulatory powers are essential (Slaight, at 1078; Brown v. Canada (Attorney General), 2022 FCA 104).
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