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

It’s election day in B.C. (Black Press files)
It’s Election Day in B.C.: Here’s what you need to know to vote

B.C.’s snap election has already broken records for advance voter turnout, mail-in ballots

B.C. Green Party leader Sonia Furstenau outlines her party's climate action platform at Nanaimo's Vancouver Island Conference Centre earlier this month. (News Bulletin file photo)
Green leader Furstenau declared victor in her home riding on Vancouver Island

Cowichan Valley voters elect freshly minted party leader for her second term

John Horgan has been re-elected the MLA for Langford-Juan de Fuca. (File-Black Press)
Horgan trounces challengers to be re-elected in his Vancouver Island riding

MLA has represented constituency of Langford-Juan de Fuca and its predecessors since 2005

Sven Spichiger, Washington State Department of Agriculture managing entomologist, displays a canister of Asian giant hornets vacuumed from a nest in a tree behind him Saturday, Oct. 24, 2020, in Blaine, Wash. Scientists in Washington state discovered the first nest earlier in the week of so-called murder hornets in the United States and worked to wipe it out Saturday morning to protect native honeybees. Workers with the state Agriculture Department spent weeks searching, trapping and using dental floss to tie tracking devices to Asian giant hornets, which can deliver painful stings to people and spit venom but are the biggest threat to honeybees that farmers depend on to pollinate crops. (AP Photo/Elaine Thompson)
Crews vacuum ‘murder hornets’ out of Washington nest, first-ever in U.S.

The nest found in the city of Blaine near the Canadian border is about the size of a basketball

Upgrades underway at the Sunnyside Reservoir, adjacent to Sunnyside Acres Urban Forest, raised concerns among some residents Tuesday (Oct. 20), however, stewards of the park say everything went off without a hitch. (Tracy Holmes photo)
‘No issue’ with South Surrey reservoir drainage, despite trail user concerns: urban forest steward

Forest visitor taken aback by ‘unprecedented flooding’ of trails

(Image by Ulrike Leone from Pixabay)
QUIZ: A celebration of colour

Fall in British Columbia is a time to enjoy a spectrum of vivid colours

Canada’s Chief Public Health Officer Theresa Tam responds to a question during a news conference Friday October 23, 2020 in Ottawa. Canada’s top physician says she fears the number of COVID-19 hospitalizations and deaths may increase in the coming weeks as the second wave continues to drive the death toll toward 10,000. THE CANADIAN PRESS/Adrian Wyld
Canada’s top doctor warns severe illness likely to rise, trailing spike in COVID-19 cases

Average daily deaths from virus reached 23 over the past seven days, up from six deaths six weeks ago

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

BC Hydro map showing where power has been knocked out is dotted with over a dozen outages. (BC Hydro map screenshot)
Thousands without power in Lower Mainland on election day

One outage in Langley and Surrey is affecting over 4,000 customers

file
One dead after fiery crash near Agassiz

Agassiz RCMP report a 56-year-old man died Friday night

The possibility of the Canadian Premier League expanding to the Fraser Valley has been floated online. (Facebook photo)
Canadian Premier League possibly eyeing Fraser Valley expansion

Soccer league looking to add ninth team to the mix, B.C. markets potentially rumoured

Most Read