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

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

A sign outside Ucluelet’s Blue Room on Monday morning advises patrons that the restaurant has gone back to take-out only. (Andrew Bailey photo)
Some Ucluelet restaurants heading back to take-out only as COVID-19 concerns rise

Ucluelet mayor Mayco Noel urges residents to be respectul of business owners’ decisions.

A sign at the entrance to Ty-Histanis asks visitors to stay out of the community during the COVID-19 pandemic. (Andrew Bailey photo)
Tla-o-qui-aht First Nation announces lockdown after member tests positive for COVID-19

Essential travel only and restricted to Tofino and Ucluelet.

Tofino Sea Kayaking staff Sable Trafton holds a gift card they are contributing ‘12 Days of Jingle’ draw. One lucky local will has the chance to win $500 worth of gift cards to local merchants. (TLCC photo)
Tofino’s 12 Days of Jingle kicks off holiday season

“We wanted to do it early so people could make purchases and send them wherever they need to go.”

FILE – British Columbia provincial health officer Dr. Bonnie Henry wears a face mask as she views the Murals of Gratitude exhibition in Vancouver, on Friday, July 3, 2020. THE CANADIAN PRESS/Darryl Dyck
Masks now mandatory in all public indoor and retail spaces in B.C.

Many retailers and businesses had voiced their frustration with a lack of mask mandate before

A staff member at Ucluelet’s Black Rock Resort has tested positive for COVID-19, according to the resort’s assistant general manager Lara Kemps. (Andrew Bailey photo)
Ucluelet’s Black Rock Resort shuts down restaurant and spa after staff member tests positive for COVID-19

Black Rock’s assistant general manager Lara Kemps says resort was informed on Nov. 18.

People wearing face masks to help curb the spread of COVID-19 cross a street in downtown Vancouver, on Sunday, November 22, 2020. The use of masks is mandatory in indoor public and retail spaces in the province. THE CANADIAN PRESS/Darryl Dyck
B.C. reports 17 COVID deaths, 1,933 new cases as hospitalizations surge over the weekend

There are 277 people in hospital, of whom 59 are in ICU or critical care

An aerial shot of Cedar Valley Lodge this past August, LNG Canada’s newest accommodation for workers at the project site in Kitimat. This is where several employees are isolating after a COVID-19 outbreak was declared last Thursday (Nov. 19). (Photo courtesy of LNG Canada)
Forty-one positive COVID-19 cases associated with the LNG Canada site outbreak in Kitimat

Thirty-four of the 41 cases remain active, according to Northern Health

Brenda Schroeder thought she was reading it wrong when she won $100,000 from a Season’s Greetings Scratch & Win. (Courtesy BCLC)
New home on the agenda after scratch ticket win in Saanich

Victoria woman set to share her $100,000 Season’s Greetings lottery win

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
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
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Workers arrive at the Lynn Valley Care Centre seniors home, in North Vancouver, B.C., on Saturday, March 14, 2020. It was the site of Canada’s first COVID-19 outbreak in a long-term care facility. THE CANADIAN PRESS/Darryl Dyck
Rapid tests ‘not a panacea’ for care homes, Dr. Bonnie Henry says

B.C. lacks capacity for daily tests of thousands of workers

(Delta Police Department photo)
Cannabis edibles found in Halloween bag lead B.C. police to illegal lab

Delta police arrested a man and a woman while executing a warrant at a residential property Nov. 20

A woman being arrested at a Kelowna Value Village after refusing to wear a mask on Nov. 22.(@Jules50278750/Twitter)
VIDEO: Woman arrested for refusing to wear mask at Kelowna Value Village

RCMP claims the woman was uncooperative with officers, striking them a number of times and screaming

B.C. Liberal MLA Shirley Bond questions NDP government ministers in the B.C. legislature, Feb. 19, 2020. (Hansard TV)
Cabinet veteran Shirley Bond chosen interim leader of B.C. Liberals

28-member opposition prepares for December legislature session

Most Read