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

Kim Rai delivers a donation of winter coats to Mark Zenko of Canadian Mental Health Association on Thursday, Oct. 22. Rai and his family handed out 100 jackets in total to various organizations in the Alberni Valley in honour of Rai’s late father, Bookan Singh Rai. (SUBMITTED PHOTO)
Port Alberni family donates coats to keep city’s vulnerable people warm

The Rai family of Port Alberni is ensuring some of Port Alberni’s… Continue reading

Port Alberni Mayor Sharie Minions, centre, and councillor Deb Haggard speak with Graham Hughes and others at a protest in front of the Port Alberni Shelter (Our Home on Eighth). Hughes and supporters have been at the shelter since Friday, Oct. 23, 2020. (SUSAN QUINN/ Alberni Valley News)
BC Housing agrees to review of Port Alberni shelter

City’s mayor, shelter’s executive director welcome news of independent review

Port Alberni RCMP have told protesters at a tent city in front of the Port Alberni Shelter (Our Home on Eighth) to take down their tents and leave the area. (SUSAN QUINN/ Alberni Valley News)
Shelter protest organizer arrested, released in Port Alberni

Supporters told to take down tent city or face arrest, protesters say

The City of Port Alberni and Alberni-Clayoquot Regional District are working on Housing Needs Reports and are seeking public feedback. (SUSAN QUINN / ALBERNI VALLEY NEWS)
City of Port Alberni, ACRD release housing survey

Survey open to Alberni Valley residents until Nov. 16

In this photo illustration, a provincial election mail-in ballot sealed in an Elections B.C. return envelope is seen before being deposited in a Canada Post mailbox, in Richmond, B.C., Saturday, Oct. 17, 2020. The final result of British Columbia’s provincial election won’t be known for at least two weeks because more than 700-thousand mail-in ballots have to be counted by hand. THE CANADIAN PRESS/Darryl Dyck
Mail-in ballots flowing into electoral offices

More than 4,000 received for Mid Island-Pacific Rim riding so far

Over the years, Janice Blackie-Goodine’s home in Summerland has featured elaborate Halloween displays and decorations each October. (File photo)
QUIZ: How much do you really know about Halloween?

Oct. 31 is a night of frights. How much do you know about Halloween customs and traditions?

The North Cowichan/Duncan RCMP are looking for information about William Mack, last seen in Duncan on Oct. 28. (File photo)
Police searching for missing man last seen near Duncan

William Mack, 72, was seen on Gibbins Road on Oct. 28

FILE - In this Jan. 23, 1987 file photo, actor Sean Connery holds a rose in his hand as he talks about his new movie “The Name of the Rose” at a news conference in London. Scottish actor Sean Connery, considered by many to have been the best James Bond, has died aged 90, according to an announcement from his family. (AP Photo/Gerald Penny, File)
Actor Sean Connery, the ‘original’ James Bond, dies at 90

Oscar-winner was knighted by Queen Elizabeth II in 2000

This house at 414 Royal Ave. became notorious for its residents’ and visitors’ penchant for attracting police. It was also the site of a gruesome torture in August 2018. It was demolished in 2019. KTW
6-year sentence for Kamloops man who helped carve ‘rat’ into flesh of fellow gang member

Ricky Dennis was one of three men involved in the August 2018 attack

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

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

Cpl. Nathan Berze, media officer for the Mission RCMP, giving an update on the investigation at 11:30 a.m., Oct. 30. Patrick Penner photo.
VIDEO: Prisoner convicted of first-degree murder still at large from Mission Institution

When 10 p.m. count was conducted, staff discovered Roderick Muchikekwanape had disappeared

Among the pumpkin carvings created this year by Rick Chong of Abbotsford is this tribute to fallen officer Cont. Allan Young.
Abbotsford pumpkin carver’s creations include fallen police officer

Rick Chong carves and displays 30 pumpkins every year

An online fundraising campaign in support of the six-year-old boy, Edgar Colby, who was hit by a car on Range Road Oct. 25 has raised more than $62,000 in a day. (Submitted)
$62K raised in 1 day for boy in coma at BC Children’s after being hit by vehicle in Yukon

The boy’s aunt says the family is “very grateful” for the support they’ve received from the community

Most Read