The Supreme Court of Canada is seen at sunset in Ottawa, Tuesday September 1, 2020. THE CANADIAN PRESS/Adrian Wyld

Supreme Court considers the constitutionality of the Liberal government’s carbon tax

The main question is whether the provinces or Ottawa have jurisdiction to regulate greenhouse gases

Supreme Court justices pushed lawyers from Saskatchewan and Ontario hard Tuesday, demanding to know how Canada can help stop climate change if any single province chooses not to help.

Two days of hearings have begun in Ottawa to decide three separate appeals related to the federal government’s national carbon tax. Since 2019, Ottawa has imposed a federal carbon price on any province that doesn’t have an equivalent system of its own.

In 2019, appeals courts in Saskatchewan and Ontario determined the policy was constitutional, while in February of this year the Alberta Court of Appeal said it was not.

The main question is whether the provinces or Ottawa have jurisdiction to regulate greenhouse gases. The environment was not a specific power assigned to provinces or the federal government when the Constitution was signed in 1867, and climate change had not even been contemplated at that time.

Lawyers for Saskatchewan and Ontario argued today, however, that the power does lie with the provinces and Ottawa should not be allowed to nab that power for itself.

Mitch McAdam, the director of the constitutional law branch in Saskatchewan’s justice department, said the Greenhouse Gas Pollution Pricing Act, which created the carbon tax program, even says provinces have the ability to regulate greenhouse gases on their own.

Josh Hunter, the deputy director of the constitutional law branch in the office of Ontario’s attorney general, said the carbon tax policy gives Canada wide-reaching powers to regulate anything that affects greenhouse gases and treats provinces like subordinates.

“The way they’ve done it, it’s even worse because it’s not just they say they’re going to regulate it,” he told the court. “They say, ‘You regulate it the way we like it or we will regulate it.’”

Several judges expressed doubt that Ottawa doesn’t have the power to step in when climate change is an “existential” emergency that requires an all-hands-on-deck response from every corner of the country.

Justice Michael Moldaver said “everybody as I understand it agrees that climate change is a serious threat to life on Earth as we know it,” and that even if the provinces have the power to do something about it, they don’t have to.

“If one province decides not to do it, if one province decides to go rogue, this will have an impact potentially on the whole of Canada, and other provinces that are trying their best,” said Moldaver.

Justice Rosalie Abella echoed those sentiments, asking the provincial lawyers to explain what happens if a province doesn’t act.

“They can collectively choose to deal with those issues but they don’t have Plexiglas at their borders and the effect of not choosing to engage in strategies that are ultimately helpful to the rest of the country has enormous implications,” she said. “That’s why we have the national concern test.”

She told Hunter it was not clear to her yet why Ottawa wouldn’t have authority to act just because the provinces could also act.

Abella’s comment about Plexiglas comes as all nine Supreme Court justices were separated from each other by space and transparent walls. The carbon tax hearing is the first in-person hearing of the court in the era of the COVID-19 pandemic.

As such, the court is closed to the public, the number of staff in the courtroom is limited, clerks are wearing masks at all times, and the judges and lawyers presenting wore masks until they got to their seats.

Chief Justice Richard Wagner noted the judges are in two rows instead of one now.

The hearing is also being webcast, although the top court has been livestreaming proceedings since before the pandemic.

Federal government lawyers are set to make their arguments defending the carbon tax law Tuesday afternoon, as are lawyers from British Columbia. Alberta lawyers are also on the schedule to argue against it Tuesday.

Wednesday, the hearings will continue with arguments from other provinces, including Quebec, Manitoba and New Brunswick. Also on the schedule for Wednesday are several First Nations and Indigenous governing bodies, as well as more than a dozen special interest groups.

Mia Rabson, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Federal Carbon Tax

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Cathy Malo, owner of Bird On A Wire Telus Koodo. (Aman Parhar/Omineca Express)
Bird On A Wire: Covering all your cellular, electronic and stationery needs

As a part of small business week, we are featuring local Vanderhoof businesses

Vanderhoof RCMP are seeking witnesses who may have seen a black, 2018 Chevrolet Silverado pickup (similar to the one pictured) with an Alberta licence plate travelling west on Highway 16 towards Vanderhoof prior to a fatal rollover on Sept. 26 at around 6:30 p.m. (Photo submitted)
RCMP seek witnesses in fatal September crash on Highway 16 near Vanderhoof

RCMP are continuing its investigation on a single-vehicle, fatal crash that took… Continue reading

The Prince George RCMP is asking for the public’s help to find 29-year-old Colin Michaud Durrand. He has a history of violence and is considered to pose an increased risk to public safety, according to police, who advise the public not to confront Durrand if he is located. (Photo Submitted by RCMP)
Prince George RCMP ask for help locating violent ‘priority offender’ with ties to Quesnel

RCMP says Colin Michaud Durrand, 29, recently lived in Quesnel but may frequent Hixon, Prince George

The Dupras family has been regulars at the Babine River and have seen plentiful grizzlies over the years. (Jay Dupras photo/Lakes District News)
A family’s close encounter with a grizzly on Babine River bridge

Photo-enthusiasts let the bear access the bridge for photos putting others at risk

Stikine provincial election candidates (clockwise from top left): Nathan Cullen, NDP; Darcy Repen, Rural BC Party; Rod Taylor, Christian Heritage; and Gordon Sebastian, BC Liberals.
‘Where is Annita McPhee?’: Cullen under fire from opening salvo of all-candidates forum

Four Stikine candidates spar during online debate from Prestige Hudson Bay Lodge in Smithers

Provincial health officer Dr. Bonnie Henry presents modelling of COVID-19 spread in B.C., March 25, 2020. (B.C. government photo)
B.C. sets another COVID-19 record with 203 new cases

up to 1,766 active cases in B.C., two more deaths

Jordan Naterer, an electrical engineer from Vancouver, was last seen Saturday Oct. 10. (Facebook photo)
Search efforts to resume for missing Manning Park hiker; Trudeau speaks on case

PM says he’ll do what he can to ‘nudge’ efforts to find Jordan Naterer, yet has little leverage locally

Smartphone showing various applications to social media services and Google. (Pixabay photo)
National media calling for level playing field with Google, Facebook

In Canada, Google and Facebook control 80 per cent of all online advertising revenues

École de L’Anse-au-sable. (Google Maps)
B.C. records first COVID-19 outbreak at school, six weeks after students return to class

Three cases of the virus have been identified at École de L’Anse-au-sable

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Green Party leader Sonia Furstenau is seen as she leaves media event during a campaign stop in West Vancouver, B.C., Tuesday, October 20, 2020. THE CANADIAN PRESS/Jonathan Hayward
B.C. Green leader hopes voters see value in minority government

The Greens received nearly 17 per cent of the popular vote in 2017 yet received just three seats

Local candidates Pam Alexis, Abbotsford-Mission, and Preet Rai, Abbotsford-West, look on as NDP Leader John Horgan main streets in Abbotsford, B.C., Wednesday, October 21, 2020. THE CANADIAN PRESS/Jonathan Hayward
B.C. NDP takes snap election risk during pandemic in quest for majority government

Green Leader Sonia Furstenau said the election was unnecessary and irresponsible during the pandemic

Liberal Leader Andrew Wilkinson speaks during a drive-in car rally campaign stop at a tour bus operator, in Delta, B.C., on October 17, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C. Liberal Leader maintains confidence as campaign tests party identity

Liberal campaign has been disrupted by controversy

Most Read