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Environment - Precautionary Principle. Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court considers, but declines, to integrate the 'precautionary principle' into the Charter s.1 Oakes stage:(b) The Role of the Precautionary Principle and a Flexible Approach
[196] The respondents and numerous interveners, including the Attorney General of Canada, argued before this Court that the “precautionary principle” applies, or should apply, as a part of the Oakes test. In this novel argument, they seek to transpose a principle that this Court has applied in the environmental law context into the constitutional domain to support greater deference to legislative choices made in circumstances involving threats of serious harm in situations of scientific uncertainty. The application judge cited and relied on this principle when conducting the s. 1 analysis. The appellants argue that this was an error, and that the precautionary principle plays no role in the s. 1 analysis.
(i) What Is the Precautionary Principle?
[197] The precautionary principle originated in the context of environmental policy. At the 1990 United Nations Bergen Conference on Sustainable Development, the Environment Ministers of 34 countries, including Canada, laid out the following formulation of the principle in a Ministerial Declaration, the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, U.N. Doc. A/CONF.151/PC/10, Ann. I, August 6, 1990 (Bergen Declaration):In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. [p. 19] [198] According to this definition, the principle applies when governments set environmental policies. It calls for a preventive and anticipatory mindset to address the causes of environmental harms and states that the lack of full scientific certainty should not be used to justify inaction in the face of the threat of serious or irreversible environmental damage. This precautionary principle has become an important and oft-cited principle in the realm of international law and has been incorporated into numerous domestic environmental statutes.
(ii) Canadian Judicial Treatment of the Precautionary Principle
[199] This Court has considered the precautionary principle when interpreting provisions relating to environmental law in three cases. It was first considered in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, where this Court was asked to interpret a bylaw that restricted the use of pesticides (J. Abouchar, “The Precautionary Principle in Canada: The First Decade” (2002), 32 E.L.R. 11407). While the bylaw did not refer to the principle, the Court cited the statement from the Bergen Declaration. It noted that the bylaw “respects international law’s ‘precautionary principle’”, and that there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (Spraytech, at paras. 31-32, quoting Bergen Declaration, at para. 7, and J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), 29, at p. 52).
[200] In Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, this Court interpreted a provision of the Environmental Protection Act, R.S.O. 1990, c. E.19. Again, while the principle was not referenced explicitly in the statute, the Court considered that the provision in question “gives effect to” and is “consistent with” the precautionary principle, following Spraytech (para. 20).
[201] Finally, this Court affirmed the Bergen Declaration definition of the precautionary principle in Reference re Impact Assessment Act, 2023 SCC 23. Here, the statute expressly stated that the Impact Assessment Act, S.C. 2019, c. 28, s. 1, itself must be administered in a manner that applies the precautionary principle (para. 145).
[202] Each of these cases involved interpreting a statute or bylaw on an environmental matter. This case raises new questions regarding the precautionary principle outside of the well-established spheres of international law and domestic environmental law.
[203] Some lower courts have relied on the precautionary principle beyond the environmental context (see, e.g., R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81, at para. 102; Procureur général du Québec v. Gallant, 2021 QCCA 1701). In addition, certain courts have also cited the precautionary principle in cases involving the COVID-19 pandemic in recent years, including when conducting a s. 1 analysis (see Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134, 166 O.R. (3d) 81; Grandel v. Saskatchewan, 2022 SKKB 209; Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711; Spencer v. Canada (Attorney General), 2021 FC 361, 490 C.R.R. (2d) 1).
(iii) Section 1 and the Precautionary Principle
[204] We are now asked to use the precautionary principle to assess whether Charter-infringing government action passes constitutional muster under s. 1. We accept that the precautionary principle has an important role to play in certain contexts. It draws attention to the link between the threat of serious harm and the level of scientific knowledge available at any given time. It puts safety first and promotes life, in various forms. It has similarities to, and may even intersect with, the inquiries into a law’s objective and the means used to achieve that objective. These same factors underpin s. 1 and the Oakes test. For these reasons, it is not an error of law to refer to the precautionary principle in a s. 1 analysis.
[205] However, for the practical and conceptual reasons that follow, there is no need to embed the precautionary principle into the s. 1 analysis in the formal manner proposed in this case.
[206] Transposing the precautionary principle onto the Oakes test would create problems of clarity and consistency. The principle originates in social science. It does not provide a clear legal framework and would import confusion into the s. 1 analysis (see É. Labelle Eastaugh, “The Precautionary Principle as a Justification for Limiting Constitutional Rights” (2025), 62 Alta. L. Rev. 818). Fundamental methodological questions remain unanswered about how it operates, where in the s. 1 analysis it applies, and what preconditions a government must establish before it can invoke it to justify restrictions on Charter rights.
[207] This uncertainty is mirrored in the submissions of the parties and interveners. A number of them invited us to apply the precautionary principle in the s. 1 analysis, but there is little agreement on how to do so. While the Attorney General of Canada posits that the precautionary principle relates to all stages of the s. 1 analysis, the Attorneys General for Prince Edward Island and the Yukon situate it within the minimal impairment stage of the Oakes test. Others, such as the Attorneys General for Saskatchewan, Nunavut, and New Brunswick, identify the precautionary principle in broader terms, relating to the determination of what level of deference is to be owed. This uncertainty also affected the application judge’s reasons in which the precautionary principle was cited as context, before applying Oakes, and also discussed briefly at the minimal impairment stage. This lack of clarity in how the precautionary principle would apply within a s. 1 analysis militates against adopting it as a freestanding principle alongside Oakes.
[208] This said, the concerns underlying the precautionary principle are already reflected under s. 1. The Oakes test is applied flexibly and with a full understanding of the context of the state action in issue. The government is already accorded significant deference on complex policy issues, including where the evidence is inconclusive (Hutterian Brethren, at para. 53; Canada (Attorney General) v. JTI‐Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43). Such deference directly affects how courts assess the justifiability of an infringement, and establishes benchmarks for the nature and sufficiency of the evidence required (Harper, at para. 75; Bryan, at paras. 11 and 28). When there is a range of possible state responses to a serious policy issue, such as situations which involve emergent, novel, and urgent threats to human life, “[t]here may be room for debate about what will work and what will not, and the outcome may not be scientifically measurable. Parliament’s decision as to what means to adopt should be accorded considerable deference in such cases” (JTI‐Macdonald Corp., at para. 41).
[209] Courts recognize that governments enjoy a margin of appreciation, that a deferential approach can be applied to every stage of the Oakes test, and that each such stage contains a contextual standard. This recognition responds to the underlying concerns of the precautionary principle.
[210] The first stage of the Oakes test focuses on purpose and requires that the infringing measure pursue a pressing and substantial objective of sufficient importance to warrant limiting a constitutionally protected right or freedom in a free and democratic society (Oakes, at p. 138; see also Big M, at p. 352). As the state exists in part to protect society from harm, preventing a reasonably apprehended risk of “threats of serious or irreversible damage”, will likely qualify as a pressing and substantial objective, consistent with the principles of the Charter and a free and democratic country. While rights-limiting laws enacted in compliance with the precautionary principle will therefore tend to pass the first stage of Oakes, it adds little or nothing to ask whether compliance with the precautionary principle is itself a pressing and substantial objective.
[211] The next step of Oakes asks whether this measure is rationally connected to the pressing and substantial objective. The language of the Charter requires that the measure be “demonstrably justified”. This analysis cannot be one of intuition or pure deference to the choice of the legislature; the government must put forward a reasoned demonstration of the proportionality of the measure (RJR-MacDonald, at paras. 128-29). But this Court has never required scientific certainty and has made it clear that a rational connection to the objective can be established by reason, logic, or social science evidence (see, e.g., JTI‐Macdonald Corp., at para. 41; Harper, at para. 78; R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, at p. 503; Keegstra, at pp. 768 and 776; RJR-MacDonald, at para. 137; Thomson Newspapers, at paras. 104-7; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45). Government may rely upon a reasoned apprehension of harm and need only show “that it is reasonable to suppose that the limit may further the goal, not that it will do so” (Hutterian Brethren, at para. 48; see also Harper, at para. 77). There is no need to invoke the precautionary principle to justify government actions in the absence of full certainty.
[212] On the question of minimal impairment, the court must determine whether the challenged measure infringes the right in such a way that it is measured and carefully tailored to the pressing and substantial objective sought to be achieved (RJR-MacDonald, at para. 160). Again, governments have latitude to respond to complex policy issues, especially where the evidence is inconclusive (Hutterian Brethren, at para. 53; JTI‐Macdonald Corp., at para. 43; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 994). Laws do not fail this step simply because a litigant may, with the benefit of hindsight, point to a less infringing alternative. Indeed, “[s]ome deference to the legislator is warranted — if the law falls within a range of reasonable options, the court will not insist on the smallest infringement conceivable” (Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, at para. 63). In this sense, the precautionary principle’s animating concern to encourage action during a crisis already finds home in this stage of Oakes without addition or amendment.
[213] At the final stage of Oakes, the court must weigh the proportionality of the effects of the measures which limit the Charter right or freedom against the objective of that measure (p. 139). The evidentiary burden at this stage also allows the salutary effects to be established by a reasoned apprehension (Hutterian Brethren, at para. 85; Sharpe, at para. 103) and does not require legislatures to show that the law will produce the forecasted benefits. This is because “[i]f legislation designed to further the public good were required to await proof positive that the benefits would in fact be realized, few laws would be passed and the public interest would suffer” (Hutterian Brethren, at para. 85). In other words, this Court has already recognized at this stage, too, that a lack of scientific certainty is not a reason to postpone government action.
[214] As a whole, the Oakes test already captures any wisdom offered by the precautionary principle. We therefore conclude that the precautionary principle is not a part of the s. 1 analysis, nor should it be inserted or injected into the analysis in the formal manner proposed. The Oakes test remains the governing test and it is a responsive, flexible and nuanced standard for assessing whether a limit on a Charter right or freedom, even one enacted in an emergency, is justified in a free and democratic society. . Canada (Attorney General) v. Responsible Plastic Use Coalition [precautionary principle]
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.
The court considers the 'precautionary principle', here as embodied in the CEPA:[66] The 1999 amendments expanded the range of substances canvassed by CEPA and introduced Part 4 "“Pollution Prevention,”" which aimed at fortifying CEPA’s ability to pre-empt environmental harm. The precautionary principle was also established as a binding administrative duty under paragraph 2(1)(a) and the "“ecosystem approach”" was embedded in a new paragraph of the preamble. The addition of "“biological diversity”" and "“environment”" in section 64 introduced the assessment of harm to ecosystems and reflected Canada’s increasing obligations under international environmental commitments (see, for example, the 2018 Ocean Plastics Charter, which commits G7 nations to greater plastics stewardship).
....
[74] The precautionary principle is a mandatory consideration in the GIC’s administration of CEPA, 1999 (para. 2(1)(a)), along with the duty to "“act expeditiously and diligently to assess [substances]”" (para. 2(1)(k)). Paragraph 2(1)(a) stipulates that full scientific certainty shall not be a reason to postpone cost-effective measures to prevent environmental degradation where there are threats of serious or irreversible damage. The addition of the word "“may”" throughout section 64 in the 1999 amendments to CEPA infused the precautionary principle into the scheme’s framework for controlling toxic substances, underscoring CEPA, 1999’s risk-based approach to thwarting environmental harm before it occurs. . Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)
In Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR dismissal, here brought against "a decision made by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) on February 17, 2023, to refuse to re-issue aquaculture licenses to salmon farms operating in the Discovery Islands".
Here the court cites some case-relevant provisions of the Fisheries Act, including the statutory 'precautionary principle':[32] Of note are the following considerations that the Minister must consider when making decisions in furtherance of the powers conferred by the Act:Fisheries Act, R.S.C. 1985, c. F-14
Loi sur les pêches, L.R.C. (1985), ch. F-14
2.4 When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
2.4 Le ministre prend toute décision sous le régime de la présente loi en tenant compte des effets préjudiciables que la décision peut avoir sur les droits des peuples autochtones du Canada reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982.
2.5 Except as otherwise provided in this Act, when making a decision under this Act, the Minister may consider, among other things,
2.5 Sauf disposition contraire de la présente loi, dans la prise d’une décision au titre de la présente loi, le ministre peut prendre en considération, entre autres, les éléments suivants :
(a) the application of a precautionary approach and an ecosystem approach;
a) l’application d’approches axées sur la précaution et sur les écosystèmes;
(b) the sustainability of fisheries;
b) la durabilité des pêches;
(c) scientific information;
c) l’information scientifique;
(d) Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister;
d) les connaissances autochtones des peuples autochtones du Canada qui lui ont été communiquées;
(e) community knowledge;
e) les connaissances des collectivités;
(f) cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement;
f) la collaboration avec les gouvernements provinciaux, les corps dirigeants autochtones et les organismes — de cogestion ou autres — établis en vertu d’un accord sur des revendications territoriales;
(g) social, economic and cultural factors in the management of fisheries;
g) les facteurs sociaux, économiques et culturels dans la gestion des pêches;
(h) the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and
h) la préservation ou la promotion de l’indépendance des titulaires de licences ou de permis dans le cadre des pêches côtières commerciales;
(i) the intersection of sex and gender with other identity factors.
i) l’interaction du sexe et du genre avec d’autres facteurs identitaires. [33] One of the responsibilities of the Minister, as head of the DFO, is to regulate aquaculture operations. The department is responsible for issuing all aquaculture licenses for marine finfish, including aquaculture licenses necessary for the operation of salmon farms. According to subsection 7(1) of the Act, the Minister may, "“in his absolute discretion”", issue such licenses. The breadth of that discretion is obviously not unlimited, and it must be exercised in keeping with the Minister’s overarching duties to manage and conserve fisheries. Operators also require introduction and transfer licences to transfer fish into or between aquaculture sites, pursuant to section 56 of the Fisheries (General) Regulations, SOR/93-53 (the Regulations). It is worth noting that receiving a licence pursuant to that provision does not imply or confer any right to be issued a licence in the future: see subsection 16(2) of the Regulations; Anglehart v. Canada, 2018 FCA 115 at paras. 28 and 44-46. . Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)
In Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR dismissal, here brought against "a decision made by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) on February 17, 2023, to refuse to re-issue aquaculture licenses to salmon farms operating in the Discovery Islands".
Here the court considers the statutory 'precautionary principle' set out in the Fisheries Act (and elsewhere):[83] I agree with the Federal Court that these reasons are more than sufficient and adequate to explain why the Minister decided not to adopt DFO’s recommendations. As previously mentioned, the Minister was explicitly entitled to consider the application of a precautionary approach in making her decision to renew Mowi’s licences or not (see ss. 2.5(a) of the Act). This principle, which is derived from environmental law, has been codified in many domestic statutes, including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6), the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, para. 2(1)(a), Federal Sustainable Development Act, S.C. 2008, c. 33, subpara. 5(a.1)(iii), Canada National Marine Conservation Areas Act, S.C. 2002, c. 18, ss. 9(3), Pest Control Products Act, S.C. 2002, c. 28, ss. 20(2), Endangered Species Act, S.N.S. 1998, c. 11, para. 2(1)(h) and ss. 11(1), Health Protection and Promotion Act, R.S.O. 1990, c. H.7, ss. 77.7(2). This principle is to the effect that "“when there is a risk of serious or irreversible environmental damage, one should err on the side of caution even when there is not full scientific certainty with respect to the risk”": Bergen Ministerial Declaration on Sustainable Development (1990), as cited in 114957 Canada Ltée (Spraytech Société d’arrosage) v. Hudson (Town), 2001 SCC 40 at para. 31. The more serious the risk is, the earlier a decision maker may intervene to prevent its occurrence. It stands to reason that when a risk is particularly threatening and could have dramatic impacts were it to materialize, less will be required in terms of probabilities to justify offsetting measures. . 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)
In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001) the Supreme Court of in an historic environmental case, considered the international 'precautionary principle' where a Quebec town by-law restricting pesticide use to non-cosmetic purposes:30 To conclude this section on statutory authority, I note that reading s. 410(1) to permit the Town to regulate pesticide use is consistent with principles of international law and policy. My reasons for the Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 70, observed that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. As stated in Driedger on the Construction of Statutes, supra, at p. 330:[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.] 31 The interpretation of By-law 270 contained in these reasons respects international law’s “precautionary principle”, which is defined as follows at para. 7 of the Bergen Ministerial Declaration on Sustainable Development (1990):In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. Canada “advocated inclusion of the precautionary principle” during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).
32 Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment” (D. Freestone and E. Hey, “Origins and Development of the Precautionary Principle”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in ibid., at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at p. 241 (“the precautionary principle has indeed crystallised into a norm of customary international law”). The Supreme Court of India considers the precautionary principle to be “part of the Customary International Law” (A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53, at para. 27). See also Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241. In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under their rubric of preventive action.
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