The precautionary principle emerged in Germany in the 70s, and was introduced on the international scene in the early 80s. Initially limited to environmental issues, its scope of application has since expanded considerably. What's more, since the onset of a number of recent food crises in Europe, the precautionary principle has moved rapidly up the political agenda to feature in legislation relating to food and health.
The precautionary principle has been so popular that its use has sometimes become incantatory. Ignored by some, adored by others, it has been - and still is - a highly controversial principle, reflecting deep-seated state dissidence on the international stage.
Beyond conflicts over its definition and conceptual content, real convictions can serve as a guide: instead of the saying "when in doubt, abstain", the precautionary principle substitutes the imperative "when in doubt, do everything in your power to act to the best of your ability". As a result, the precautionary principle - which comes into play when states and governments wish to prevent certain risks despite the absence of irrefutable scientific proof of the existence of a definite causal link that could cause potential harm - serves action rather than inaction.
Moreover, the precautionary principle, which means considering that safety measures may be necessary before obtaining concrete proof of damage, constitutes active risk management rather than resignation in the face of risk. It therefore introduces a dynamic that enables us to "break the deadlock" by encouraging the development of knowledge. So, even if the precautionary principle is still poorly defined on the international scene, there is every reason to believe that Canada would do well to adopt it formally.
This adoption must be based on a resolutely operational approach. Once the conditions for applying the precautionary principle have been clearly determined (proportionate, non-discriminatory, transparent, consistent, provisional decisions with a cost/benefit analysis), a structured decision-making process based on detailed scientific data and other objective information must be put in place.
The precautionary principle is therefore framed by a scientific approach characterized by a three-stage risk analysis process: risk assessment, risk management and risk communication. The risk communication stage, which forms part of the risk analysis process, is particularly important, as it enables the interactive exchange of information and ideas between risk assessors, risk managers, consumers, industry, the academic community and other interested parties.
In other words, risk communication ensures the bond of trust between public authorities and citizens. Risk communication is a fundamental responsibility of public authorities, and as such must be evaluated. In Canada, the precautionary principle has its own normative value. This means that Canadian administrative tribunals can intervene to verify whether the process adopted by governments fosters the dialogue and debate necessary for decision-making. An examination of the situation reveals that Canada needs to improve its risk communication strategy, particularly with regard to scientific information and food product labelling.
A priori, the precautionary principle's influence is most likely to be on the responsibility of public decision-makers (administrative law), but it is possible to imagine that it could soon be shared with those who influence the decision, such as scientists and companies developing a product or process.
In this respect, the precautionary principle should also have a place in the sphere of strict civil liability: applying the precautionary principle in civil law would mean abolishing the criterion of foreseeability, and thus transforming fault-based liability into strict liability, which is not yet the case. On the other hand, redefining criminal fault in a narrower sense means abandoning the precautionary principle in this area, as running the risk of criminal sanction without recognized criminal liability has no solid foundation and appears completely anachronistic.
In conclusion, the precautionary principle, when properly framed, is a considerable social vehicle that represents a real democratic evolution in society. It guarantees consumers their most fundamental right to information. It gives them access to reliable information, enabling them to make informed choices. As Bruno Latour so rightly points out:
" The profound meaning of the precautionary principle stems from the fact that the laboratory now has the dimension of the world itself, and that it is no longer reduced to the narrow confines of the enclosures over which white coats used to keep watch....] Far from being irrational, as is sometimes said to frighten us, the precautionary principle enables us to move from a short reason, which knows little about the sciences as they are practised and their innumerable links with culture, to a long reason which will oblige us, in the years to come, to rewrite together the rules of the experimental method. In the meantime, to clarify matters, it would be useful to propose as a synonym for the precautionary principle, the expression "collective experimental science" or, better still, "the principle of good government".
