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.