True North

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 covered the entire hearing live from Toronto.

After four days of testimony from four provincial governments, the next ruling party of Alberta, eleven other groups and the government of Canada itself, the fate of the carbon tax imposed on Ontarians now rests in the hands of five justices of the Court of Appeal for Ontario.

Chief Justice of Ontario George Strathy, Associate Chief Justice of Ontario Alexandra Hoy, and justices Robert Sharpe, James MacPherson and Grant Huscroft opted to reserve their judgement upon the culmination of Thursday’s brief session.

They have up to six months to issue a ruling, though it could come much sooner, a court official told me.

Thursday morning was set aside for the lawyers for the Canadian and Ontarian governments to respond to arguments advanced by each other and the intervenors over the course of the week. They also fielded further questions from the justices themselves.

While much of Thursday’s reply period amounted to rehashes of initial arguments, it was noteworthy how at least one key aspect of the discussion had shifted. On Tuesday, federal lawyer Sharlene Telles-Langdon indicated the Canadian government wasn’t replying on the emergency powers provision of the constitution as the basis for justifying the Greenhouse Gas Pollution Pricing Act, but said it would ultimately accept such a determination from the court.

(The emergency powers option was most forcefully advanced by the David Suzuki Foundation’s and Intergenerational Climate Coalition’s interventions.)

Though this must have been a point of concern for Ontario, as provincial lawyer Joshua Hunter spent a considerable chunk of his Thursday reply combatting the application of emergency powers in this case, and questioning whether the court could even rely on an argument advanced only by intervenors, rather than a party.

The primary questions that emerged throughout this case are as follows:

• Does greenhouse gas pollution constitute an issue of national concern under peace, order and good government doctrine, in that provinces have an inability to effectively act without the federal government?
• Does allowing the federal government to claim national concern jurisdiction open the floodgates for future encroachment into provincial jurisdiction (such as the oft-cited hypothetical of banning wood-fired stoves)?
• Is the primary purpose of the carbon price to raise revenues for government, or influence consumer behaviour? (More pertinent in legal terms, does the carbon price amount to an unconstitutional tax, or a valid regulatory charge?)

There are, of course, other dimensions and aspects, but to avoid bogging down those who haven’t been immersed in this for four days, I include the questions that were most repeatedly and consistently raised by lawyers on both sides of the issue—and by the justices themselves.

To add in some outside context here, Saskatchewan has already argued its similar constitutional challenge in the Saskatchewan Court of Appeal, though no decision has yet been released.

Manitoba’s government announced earlier this month it plans to take the carbon tax to court (though may do so under administrative, rather than constitutional, grounds). Premier-designate Jason Kenney plans to sue the federal government over the carbon tax. New Brunswick doesn’t yet have legal action of its own, but intervened in support of Saskatchewan’s and Ontario’s cases.

This will ultimately be determined by the Supreme Court of Canada, though it will still be interesting to see what decisions are issued beforehand.

The political debate about federally-imposed carbon pricing continues, but at least for now I can rest my coverage of the legal saga.

A huge thank you to those who donated to the crowdfunded campaign that allowed me to take on this story. Because of your support, I was not only able to cover every day of the hearing, but I was the only member of the media present for the entirety of it. Four columns, six videos, two interviews with key lawyers in the case, and more tweets that I can count. We’ll surely do similar projects in the future, but if you’d like to support us in the meantime, consider joining my Heritage Club with a small monthly contribution, or my Patriot Club with a slightly larger one. The benefits for both are outlined at the linked pages.

Daughters of the Vote (DoV), a biennial program that invites 338 young women – one from each federal riding – to Ottawa to get an insider’s look at political life in Canada, made the news this month when some of the delegates protested both Prime Minister Justin Trudeau and Conservative leader Andrew Scheer.

Approximately 40 delegates turned their backs to Trudeau during his speech in the House of Commons on April 3^rd over his decision to eject Jody Wilson-Raybould and Jane Philpott from the Liberal caucus over the SNC-Lavalin scandal. About a dozen delegates also walked out during Conservative Party leader Andrew Scheer’s speech because he has “not been willing to condemn” Islamophobic rhetoric.

DoV is organized by Equal Voice, a multi-partisan non-profit organization that seeks to get more women elected to office in all levels of government. Largely funded by Status of Women Canada, DoV pays for all travel, accommodation, and meal expenses of the 338 delegates.

To participate in the program, all delegates had to complete anti-oppression and anti-racism training and sign a code of conduct with an indigenous land acknowledgment that ordered delegates to “create spaces and avenues for which First Nation, Inuit, and Metis peoples may thrive and feel safe.”

The delegates were also given literature on how to recite a territorial acknowledgment – literature which asked the delegates to reflect on what intentions they have to “disrupt and dismantle colonialism” beyond their acknowledgement.

Right from the get-go, ideological conformity is established. By being required to sign this contract, young women in particular are being targeted and groomed to serve a social and political agenda.

It also seems as if DoV wants to encourage women to be dependent on social supports, or assumes that women need an array of services in order to be able to function.

For the duration of the program, DoV provided the young women with access to a full-time equity coordinator, a full-time indigenous coordinator, support workers onsite 24/7, indigenous elders onsite 24/7, a “decompression room”, a prayer room, and an indigenous forum, among other services.

If some sort of equivalent “Sons of the Vote” program existed, would the male young adults also need all of these services? Do young women really require a plethora of “support services” to participate in political life? How sad.

On April 3^rd, the 338 young women sat in the seats of their respective MP in the House of Commons, and thirty women were given the chance to stand up and address the chamber with a brief speech. The leaders of all of the major political parties also addressed the young women, and Prime Minister Trudeau’s speech was followed by a Q&A session. The sitting was livestreamed on CPAC.

At least five indigenous land acknowledgments were heard throughout the sitting, at least three women cried, and there were countless nods to systematic racism, colonial institutions, oppression, and marginalization.

Green Party leader Elizabeth May thanked the indigenous nations of “Turtle Island” for their “hospitality and generosity”, marked herself as a “cisgender woman, pronouns she and her”, and sang a “Woman Warrior” song of the Musqueam peoples. During the Q&A session with Trudeau, one delegate asked him if there would be “consequences” for the leader of the Conservative party, Andrew Scheer, for “taking pictures with Faith Goldy.”

I can’t imagine what she means by “consequences.”

The same delegate also called for “white nationalists” to be banned from “meeting in online spaces” and travelling internationally, to raucous applause by her peers.

Behind the scenes accounts of the program proved to be even wackier.

DoV delegate for West Nova and Conservative nomination candidate Hannah Dawson-Murphy made a public video statement that has now been viewed over 35,000 times where she recounts her experience with the program. Dawson-Murphy reports that once the DoV delegates found out she and her friends identified as conservatives, “they would call me white woman, they would call me racist and fascist, they would call us colonizers…One girl told me that my cross necklace that I always wear was offensive to her and that the next time that she saw me she might do something about it.”

Another six women went to the media claiming that their experience at DoV “left them feeling unsafe, unacknowledged and traumatized”, and that they had spent much of the four-day event hiding and crying in their Ottawa hotel room. They also claimed the presence of Senator Linda Frum and Conservative MP Kellie Leitch made them “uncomfortable” because of the alleged “anti-immigrant” sentiments they’ve expressed.

On their last night together, the six girls, “along with many others, sat in a room for six hours and cried over their experience.”

Some of the indigenous delegates had also “set up a safe space where they could smudge and participate in a sharing circle because they were upset about Wilson-Raybould and Philpott’s ejection” from Liberal caucus.

There are still many people out there who believe women are too emotional for political office, and therefore unfit to run. I fear that the performative hysterics of the Daughters of the Vote will make more people take this position. Many of the Daughters – let’s presume the majority – were composed and gracious. But the loudest ones were engaged in histrionics that make me embarrassed for my gender.

We young women are not all so intolerant of a diversity of ideas, and we don’t need decompression spaces and 24/7 support services to be able to participate in public life.

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.

We’re all going to die, and only a carbon tax will save us.

Certainly if you believe a few of the arguments put forward in court Wednesday afternoon, that’s the case.

There was a strangely alarmist tone Wednesday afternoon as two of the intervenors in the ongoing constitutional challenge of the Greenhouse Gas Pollution Pricing Act laid out their positions.

The David Suzuki Foundation and the Intergenerational Climate Coalition (ICC) both charge that Justin Trudeau’s carbon pricing scheme should be upheld as constitutional because the federal government has the license to sidestep the separation of powers in order to legislate on things constituting a national “emergency.”

The David Suzuki Foundation’s lawyer opened his intervention by characterizing global warming as a “crisis more dire than any that has come before,” stating we’re nearing a “point of no return” if drastic action isn’t taken.

The rhetoric was matched by the ICC’s lawyer, who literally said we need to “think of the children.”

On a side note, I congratulate Helen Lovejoy on her acceptance to the Ontario bar.

The possibility of classing greenhouse gas emissions as an emergency wasn’t even raised by the federal government before Suzuki’s legal team suggested it. Though Canada’s lawyer did cede that if the judges find it compelling enough, the government will adopt it as a position. I believe they call that arguing in the alternatives you hadn’t even thought of.

An interesting argument championed by the Assembly of First Nations, as well as the United Chiefs and Councils of Mnidoo Mnising, was how Indigenous Canadians are disproportionately affected by climate change (particularly those living in the north). Given their culture’s embrace of living off the land—hunting, fishing, trapping, and the like—it violates their constitution rights if greenhouse gas emissions are not dealt with, they contend. It was a fairly linear argument, even if it had to go through many steps.

What I found noteworthy about it was more the issue of how aboriginal communities are not really covered by provincial legislation. While these communities exist within provincial borders, they don’t within provincial jurisdiction. It would seem they may have their own argument against the federal government for that, though they’ve opted to take aim at the provincial positions.

The real star of the day was the lawyer representing Saskatchewan, who admittedly had a lengthy warm-up a few weeks back when presenting his own province’s case in Saskatchewan’s constitutional challenge.

He adequately argued against employing national concern doctrine, but also noted something Ontario didn’t in its submission—that imposing a carbon price effectively means the federal government is regulating the Ontario private sector, which impacts prices of goods and services in local markets.

He also pointed out that there is an eerily political undertone to the federal government’s mandate of a carbon tax in just four provinces—all with conservative governments.

“You need to slam the door on that Pandora’s box forever,” he said, later adding, “You don’t need to throw out the constitution in order to save the planet.”

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.