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Recapping day two of Ontario’s carbon tax hearing

As the carbon tax trial continues, Tuesday was the federal government’s turn to defend the constitutionality of Greenhouse Gas Pollution Pricing Act.

The Ontario government is challenging Justin Trudeau’s carbon tax in court, with a four-day constitutional hearing taking place this week at the Court of Appeal for Ontario. Thanks to the support of donors to our crowdfunding campaign, True North fellow Andrew Lawton is covering the hearing live from Toronto.

As the carbon tax trial continues, Tuesday was the federal government’s turn to defend the constitutionality of Greenhouse Gas Pollution Pricing Act.

Federal justice department lawyer Sharlene Telles-Langdon drove the position that because greenhouse gas emissions don’t respect provincial boundaries, it’s an issue of “national concern,” as designated by peace, order and good government (POGG) doctrine, and thus an area in which the federal government is licensed to encroach on what might seem to be provincial turf.

Even so, Telles-Langdon argued such an encroachment is minimal given how “unintrusive” the federal government’s carbon pricing scheme is, as evidenced by Climate Action Incentive tax rebates distributed by the feds.

“We know that climate change is an urgent threat to humanity,” she said.

It’s worth noting that the federal government isn’t claiming authority under emergency provisions, but rather general issues of national concern that can be invoked in areas where provinces are unable to effectively regulate things on their own. (Though the David Suzuki Foundation, in its intervention, suggested the emergency branch is entirely valid—the federal government in reply said it would be open to such an interpretation, should the court decide such.)

Tuesday’s session was far more spirited than Mondays, with numerous probative interjections from the justices. None more than Justice Grant Huscroft, who was fairly silent on Monday. He pushed, at times somewhat aggressively, for an answer to where federal latitude ends if the Canadian government’s position is accepted.

This was the slippery slope argument advanced Monday by Ontario’s lawyer, as I noted then. Three of the five Court of Appeal justices put it to Telles-Langdon, at various points of Tuesday’s session, in an attempt to get a clear answer.

The closest they got to one was when the federal government lawyer said any law would have to be dealt with on a case-by-case basis. This hardly satisfied Huscroft, who noted that the federal government was ultimately asking the court to “change the constitutional balance of power.”

Hence his desire for Telles-Langdon to stipulate “ascertainable limits” to that for which the federal government is arguing.

At another point, she insisted that limits can be built into the legislation itself, which she believes the Greenhouse Gas Pollution Pricing Act does by specifically implementing a measurable pricing scheme and not doing what she called “alarmist hypotheticals” like regulating gas stoves and automobiles.

To her credit, she argued that when POGG’s national concern provision has been invoked in the past, the balance of federalism hasn’t been upset.

Though these discussions about federal limitations were no doubt significant, I found it equally so when the federal lawyer attempted to argue that Ontario isn’t being forced to have a price on carbon under the Greenhouse Gas Pollution Pricing Act.

I don’t have an exact transcript yet, but to paraphrase, Canada’s lawyer argued—to the confusion of the justices—that Ontario isn’t forced to do anything because the federal government is administering the carbon tax should Ontario not have its own policy. Ontario isn’t taking issue with who has to administer the scheme, but rather that it has to, under the federal legislation, exist in the first place.

A tax by any other name is still a tax.

Because the federal government concluded its case ahead of schedule, the day ended with a head start on Wednesday’s docket, specifically the intervention from the province of New Brunswick, represented by William Gould.

New Brunswick’s position is virtually identical to Ontario’s, though it hasn’t fielded a constitutional challenge of its own against the legislation.

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