First published at True North on April 19, 2019.
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.