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 is covering the hearing live from Toronto.

The much-awaited constitutional challenge of the federal government’s carbon tax kicked off Monday at Osgoode Hall, with lawyers for Ontario’s attorney general first up on the docket laying out their objections to the carbon pricing scheme.

It was made clear early on in the provincial government’s submission, as well as its opening argument, that climate change and global warming are not, themselves, on trial. Rather, the federal government’s one-size-fits-all approach to tackling it is.

Whether a carbon tax, a cap-and-trade system, an incentive program or some other penalty for big polluters is the best way to curb environmental issues is a “policy question, not a legal question,” one of Ontario’s lawyers, Joshua Hunter, argued.

Ontario’s legal approach appears, at least on the surface, to be rooted in separating the Greenhouse Gas Pollution Pricing Act’s policy implications from its constitutionality, though a good chunk of the opening argument was nevertheless devoted to pointing out how the federal plan is, in fact, inefficient and ignores other actions undertaken by Ontario.

Hunter argued the Greenhouse Gas Pollution Pricing Act, which imposes a carbon tax on provinces lacking their own pricing schemes meeting the federal government’s standards, focuses solely on the price governments put on emissions and not the broader picture of climate and environmental policy, even when such policy specifically reduces emissions.

One compelling example offered by Hunter is the decision by Ontario’s previous government under Kathleen Wynne to shutter its coal-powered electrical plants. Doing so reduced emissions by 22 per cent—arguably more than a carbon tax ever could—but amounts to nothing in the federal government’s view because it isn’t a pricing scheme.

Hunter also pointed out that the Climate Action Incentive, an income tax rebate given by the federal government to residents of provinces without carbon prices, redistributes carbon tax revenue indiscriminate of actual personal emissions and carbon output. For example, a long-haul truck driver based in Ottawa who burns thousands of dollars of fuel each year will receive the same amount as a Torontonian who walks to work every day.

While this observation speaks to the ridiculousness of Trudeau’s climate plan, it doesn’t appear to advance the idea of unconstitutionality, though I’m no lawyer.

Unfortunately, Canadian courts have opted to weigh in on policy questions in the past rather than taking a strict constitutional view of things, so I won’t dare predict an outcome this early.

Ontario raised a significant concern about where federal government’s claim of jurisdiction could lead on this matter. Hunter argued that if the federal government is able to regulate greenhouse gases per se, it would also give the government license to regulate anything that causes greenhouse gases. This would run the gamut of pretty much all human activity, letting the federal government trump provincial jurisdiction on whether cars are allowed, how people heat their homes, and virtually everything else.

In the afternoon the case got a bit into the weeds on subjects I’ll have to explore further before rendering an opinion. One of Ontario’s lawyers, Padraic Ryan, spent a considerable amount of his time on the semantics of whether Trudeau’s carbon tax is, in fact, a tax.

There’s a political question about whether a price on carbon is different from a tax on carbon. As it turns out, there’s also a constitutional question there. Ryan argued the federal government doesn’t explicitly refer to it as a tax in the legislation authorizing the price on carbon; ergo Parliament hasn’t yet authorized a tax in the eyes of the law. This would make it an unconstitutional tax because it has the practical effect of being a tax without the legal authorization to be one. It occupies a weird twilight zone in Ontario’s view because the price also doesn’t meet the legal threshold to be termed a regulatory charge.

There was a fair bit of attention given to how Ontario defines it, suggesting this will play heavily as the week progresses.

Aren’t you glad I’m sitting in on this and not you?

The court reconvenes Tuesday morning at 10:00 am with the federal government laying out its opening arguments.

Finally! The Liberals have done something to deal with the unsustainable influx of people crossing illegally into Canada, mostly at the Roxham Road crossing along the Quebec border.

The data shows that for both 2017 and 2018 there was a near constant flow of approximately 20,000 people per year. It was a troubling figure and one that showed no signs of decreasing. Thankfully the numbers for January and February of 2019 have shown a decrease but there’s no guarantee the numbers won’t rise again.

While refugee advocates wanted to characterize everyone crossing as genuine refugees fleeing war and famine, there was little evidence to support that.

The majority of asylum claimants came from Haiti and Nigeria – two countries that Canadians certainly wouldn’t consider ideal places to live but aren’t facing major wars displacing people and aren’t ravaged by recent natural disasters. All indication was that these were economic migrants – people who simply wanted to move to Canada. You can’t blame them, Canada’s a pretty great country, but there are rules and processes in place to come here and those need to be followed.

For two years, groups like True North, conservative politicians, various pundits and members of the legal community pointed all of this out, how it’s unsustainable and how there needs to be changes, and the Liberal response was to cry “racist” and other nasty labels.

Good luck with that strategy, I’d always thought.

The various polls over the years showed the majority of people didn’t support what was happening at the border. And there was no way they were going to buy into this cynical messaging that opposing legal immigration was somehow a wholesale racist statement. Meanwhile, recent immigrants and others whose family members were still waiting in the legal queue weren’t happy either.

It looks like the Liberals have realized that despite their Social Justice Warrior inclination towards open borders, the rest of the public aren’t going along with it. Maybe because they’re finally clued in or because of the upcoming election, they’ve decided to do something about it.

Buried within the 2019 budget omnibus bill are changes to the asylum system that aim to deny people have had an asylum claim already rejected in the United States (and other safe third countries such as the U.K.) from then going on to make one in Canada.

It’s to prevent what Border Security Minister Bill Blair calls asylum shopping. This means they wouldn’t be placed in the multiyear waiting line, where they receive government assistance while waiting to hear if their claim will be accepted. Instead they’ll more likely be fast-tracked for rejection and removal.

This won’t actually put that big of a dent in the numbers as the statistics show only about 10% of the current illegal crossers had previously applied for asylum in the United States.

It’s rather humorous to now watch as refugee lawyers and activists display their outrage towards Prime Minister Justin Trudeau, throwing the same sorts of words at him as he previously tossed at others and also threatening legal challenges.

But still, these changes are something and it’s a move in the right direction.

Here are the questions though: Why didn’t they do it sooner? Is this only for election purposes? Will they keep advancing on this file? And was all the name-calling and divisiveness over the past two years worth it?

A common misconception with many in the media is that when Prime Minister Justin Trudeau said “sunny ways” it meant he was going to be nice and warm to get things done. Sunny ways is really all about applying heat to force people to do what you want.

From the very beginning, Prime Minister Justin Trudeau and the Prime Minister’s Office flexed muscle to get people in line.

Vice-Admiral Mark Norman, not too long after the Liberals victory, was made an example of for the rest of the federal employees: leak information or documents and full force of law enforcement will come down on you.

What Norman did, sharing information with a rival shipbuilding company when Irving Shipbuilding was trying to move in on its contract, was not an uncommon practice in Ottawa for federal employees dealing with government contacts.

But when Trudeau took power his PMO wanted to put a chill on any information getting out. Since getting the RCMP to investigate Norman, the Trudeau government is attempting to avoid releasing communications on their involvement in going after him. Norman’s lawyer has been given back requested communications from the PMO that were returned completely redacted.

In true despotic fashion, those redacted documents hide the communications between the Trudeau government’s former right-hand man, Michael Wernick, and the prosecution in the Norman case, where he faces one criminal charge of breach of trust. Norman’s defence team is questioning whether the Trudeau government’s political interference in the SNC-Lavalin scandal wasn’t the first time they interfered in a prosecution.

Wernick’s name should ring a bell.

He started early retirement this year because of his involvement as the intermediary for Trudeau. He was in charge of making it clear to former Attorney General and Justice Minister Jody Wilson-Raybould that the PM was in “that kind of mood,” and he was going to get his way one way or another if Wilson-Raybould wouldn’t give corruption-plagued engineering firm SNC-Lavalin a deferred prosecution agreement instead of letting the company defend its actions in court..

After someone leaked the Omar Khadr settlement, the Trudeau government hunted for the leaker, with the Privy Council Office refusing to say whether it called in the RCMP.

Trudeau — in similar style to an autocrat — is perverting the justice system for his and his friends’ interests. Furthermore, he is getting the police to go after those who are inconveniencing his government by revealing some of its shady backroom dealings.  

One other way autocrats keep a tight grip on power is through complete control of information. Sure, it’s hyperbolic to say the Trudeau government is anywhere near having heavy control over the media (e.g. SNC-Lavalin).

Yet the Trudeau government bribing the media with just under $600 million less than a year before an election, pressuring Facebook, Google and Twitter to censor their platforms, hiring organizations to tell Canadians what is and isn’t news, and reporting on social media accounts they don’t like all show a government interested in controlling what Canadians can see and hear as much as possible.

Finally, and perhaps most importantly, despots use fear to keep citizenry obedient.

Trudeau and much of his cabinet have begun to test out smearing federal Conservative leader Andrew Scheer and Ontario Premier as being closely aligned with the alt-right.

“Andrew Scheer has proudly spoken at the same rallies as white nationalist,” Trudeau declared last week.

Trudeau’s statement was revisionist history, another dictatorial tendency, but it also likely revealed that the Liberals’ election strategy is to strike fear into Canadians by making them think that Conservatives are by and large right-wing extremists and racists.

On top of all this, Trudeau tried to gag Scheer from calling out Trudeau on his inconsistencies in the past few months when answering on the SNC-Lavalin scandal by starting to sue the Conservative leader.  

Thankfully, we still live in a robust democracy despite Trudeau’s anti-democratic actions.

However, it’s vitally important Canadians continue to use their freedom of speech to call out and condemn the Trudeau government’s dictatorial tendencies before they get any more emboldened in attacking Canada’s democracy.