Recapping the final day (day four) of Ontario’s carbon tax hearing

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 covered the entire hearing live from Toronto.

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.

A huge thank you to those who donated to the crowdfunded campaign that allowed me to take on this story. Because of your support, I was not only able to cover every day of the hearing, but I was the only member of the media present for the entirety of it. Four columns, six videos, two interviews with key lawyers in the case, and more tweets that I can count. We’ll surely do similar projects in the future, but if you’d like to support us in the meantime, consider joining my Heritage Club with a small monthly contribution, or my Patriot Club with a slightly larger one. The benefits for both are outlined at the linked pages.

Recapping day three of Ontario’s carbon tax hearing

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.

We’re all going to die, and only a carbon tax will save us.

Certainly if you believe a few of the arguments put forward in court Wednesday afternoon, that’s the case.

There was a strangely alarmist tone Wednesday afternoon as two of the intervenors in the ongoing constitutional challenge of the Greenhouse Gas Pollution Pricing Act laid out their positions.

The David Suzuki Foundation and the Intergenerational Climate Coalition (ICC) both charge that Justin Trudeau’s carbon pricing scheme should be upheld as constitutional because the federal government has the license to sidestep the separation of powers in order to legislate on things constituting a national “emergency.”

The David Suzuki Foundation’s lawyer opened his intervention by characterizing global warming as a “crisis more dire than any that has come before,” stating we’re nearing a “point of no return” if drastic action isn’t taken.

The rhetoric was matched by the ICC’s lawyer, who literally said we need to “think of the children.”

On a side note, I congratulate Helen Lovejoy on her acceptance to the Ontario bar.

The possibility of classing greenhouse gas emissions as an emergency wasn’t even raised by the federal government before Suzuki’s legal team suggested it. Though Canada’s lawyer did cede that if the judges find it compelling enough, the government will adopt it as a position. I believe they call that arguing in the alternatives you hadn’t even thought of.

An interesting argument championed by the Assembly of First Nations, as well as the United Chiefs and Councils of Mnidoo Mnising, was how Indigenous Canadians are disproportionately affected by climate change (particularly those living in the north). Given their culture’s embrace of living off the land—hunting, fishing, trapping, and the like—it violates their constitution rights if greenhouse gas emissions are not dealt with, they contend. It was a fairly linear argument, even if it had to go through many steps.

What I found noteworthy about it was more the issue of how aboriginal communities are not really covered by provincial legislation. While these communities exist within provincial borders, they don’t within provincial jurisdiction. It would seem they may have their own argument against the federal government for that, though they’ve opted to take aim at the provincial positions.

The real star of the day was the lawyer representing Saskatchewan, who admittedly had a lengthy warm-up a few weeks back when presenting his own province’s case in Saskatchewan’s constitutional challenge.

He adequately argued against employing national concern doctrine, but also noted something Ontario didn’t in its submission—that imposing a carbon price effectively means the federal government is regulating the Ontario private sector, which impacts prices of goods and services in local markets.

He also pointed out that there is an eerily political undertone to the federal government’s mandate of a carbon tax in just four provinces—all with conservative governments.

Recapping day two of Ontario’s carbon tax hearing

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.

As the carbon tax trial continues, Tuesday was the federal government’s turn to defend the constitutionality of Greenhouse Gas Pollution Pricing Act.

Federal justice department lawyer Sharlene Telles-Langdon drove the position that because greenhouse gas emissions don’t respect provincial boundaries, it’s an issue of “national concern,” as designated by peace, order and good government (POGG) doctrine, and thus an area in which the federal government is licensed to encroach on what might seem to be provincial turf.

Even so, Telles-Langdon argued such an encroachment is minimal given how “unintrusive” the federal government’s carbon pricing scheme is, as evidenced by Climate Action Incentive tax rebates distributed by the feds.

“We know that climate change is an urgent threat to humanity,” she said.

It’s worth noting that the federal government isn’t claiming authority under emergency provisions, but rather general issues of national concern that can be invoked in areas where provinces are unable to effectively regulate things on their own. (Though the David Suzuki Foundation, in its intervention, suggested the emergency branch is entirely valid—the federal government in reply said it would be open to such an interpretation, should the court decide such.)

Tuesday’s session was far more spirited than Mondays, with numerous probative interjections from the justices. None more than Justice Grant Huscroft, who was fairly silent on Monday. He pushed, at times somewhat aggressively, for an answer to where federal latitude ends if the Canadian government’s position is accepted.

This was the slippery slope argument advanced Monday by Ontario’s lawyer, as I noted then. Three of the five Court of Appeal justices put it to Telles-Langdon, at various points of Tuesday’s session, in an attempt to get a clear answer.

The closest they got to one was when the federal government lawyer said any law would have to be dealt with on a case-by-case basis. This hardly satisfied Huscroft, who noted that the federal government was ultimately asking the court to “change the constitutional balance of power.”

Hence his desire for Telles-Langdon to stipulate “ascertainable limits” to that for which the federal government is arguing.

At another point, she insisted that limits can be built into the legislation itself, which she believes the Greenhouse Gas Pollution Pricing Act does by specifically implementing a measurable pricing scheme and not doing what she called “alarmist hypotheticals” like regulating gas stoves and automobiles.

To her credit, she argued that when POGG’s national concern provision has been invoked in the past, the balance of federalism hasn’t been upset.

Though these discussions about federal limitations were no doubt significant, I found it equally so when the federal lawyer attempted to argue that Ontario isn’t being forced to have a price on carbon under the Greenhouse Gas Pollution Pricing Act.

I don’t have an exact transcript yet, but to paraphrase, Canada’s lawyer argued—to the confusion of the justices—that Ontario isn’t forced to do anything because the federal government is administering the carbon tax should Ontario not have its own policy. Ontario isn’t taking issue with who has to administer the scheme, but rather that it has to, under the federal legislation, exist in the first place.

A tax by any other name is still a tax.

Because the federal government concluded its case ahead of schedule, the day ended with a head start on Wednesday’s docket, specifically the intervention from the province of New Brunswick, represented by William Gould.

New Brunswick’s position is virtually identical to Ontario’s, though it hasn’t fielded a constitutional challenge of its own against the legislation.

Politicians need boundaries when dealing with social media harassment

An excerpt from my latest Loonie Politics column. Read the full piece here. If you aren’t a subscriber yet, use promo code ‘Lawton’ for a discount!

Those who go into politics may surrender some of private life’s comforts, but that doesn’t mean public service should be a free-for-all.

Especially when it comes to elected officials’ families.

It’s hard to find civility on social media, however, where a St. Catherines man attempted to spark a Christmas Day flash mob at Progressive Conservative MPP Sam Oosterhoff’s parents’ house.

“This Christmas, let’s protest @samoosterhoff and his bigot, misogynistic and homophobic personality & upbringing,” wrote Rob Gill on Twitter.  “Let’s protest at his parents (sic) home at (redacted).  Or give them a call at (redacted).”

Included in the original tweet, which has since been deleted, were the Oosterhoff family’s home address and phone number.

The second-term MPP called police upon seeing the tweet, citing concern for his family’s safety.  The OPP says it was unsuccessful at reaching Gill by phone, so instead stopped in on him to “caution (him) regarding sharing personal information on social media which could be perceived as harassing.”

Gill himself tweeted about the episode, lauding the officer as “professional and friendly” while labeling Oosterhoff’s call to the police “pathetic” and meant to intimidate.

From a PR perspective, there’s no right answer for Oosterhoff to deal with someone being so demonstrably irrational.  Were he to call Gill himself, he’d be similarly accused of trying to intimidate.  His way put it to the OPP to decide what the prudent course of action would be.

It sounds as though that’s exactly what happened.  The police investigated, had a courteous and professional conversation with the party involved, and moved on without laying any charges.  I’m unclear on how this could have unfolded in any better way, except for if Gill had never taken aim at the Oosterhoffs in the first place.

Don’t fear the Islamic Party of Ontario

A curious entry on Elections Ontario’s list of reserved political party names has galvanized Ontarians concerned about creeping Sharia.

As first noted by Toronto Sun columnist Tarek Fatah, the provincial elections agency has granted a hold on the name Islamic Party of Ontario, generally the first step towards formally registering a party to field candidates in the province’s elections.

As a preamble to its policies and principles, a page on the would-be party’s website touts the opening line of Canada’s Charter of Rights and Freedoms avowing “Canada is founded upon principles that recognize the supremacy of God and the rule of law” to justify its desire to make all laws in “obedience and according to the will of God.”

After several bullet points about Islamic history and apologetics, the Islamic Party of Ontario unequivocally says its stances on all issues are rooted in the Qur’an and Sunnah.

This means an Islamic government would abandon capitalism in favour of “interest-free capital and worker partnership economy,” enshrine the right to food and shelter, and guarantee equality of opportunity for immigrants and native-born Canadians alike.

Utopic as this may sound to some, the party would also ban gay marriage, abortion, alcohol and gambling, as well as any sexual relations outside of marriage. The party also says “obscenity, vulgarity, nudity and perversion must be checked,” though it doesn’t specify an all-out ban. (Yay?)

While the Islamic party says it upholds freedom of speech, it also commits to a “strict law to ban blasphemy.” I don’t envy the judges who have to balance those rights.

Canadians may find areas of agreement with the Islamic party platform. Several of the social positions would be supported by evangelical Christians, while the economics are on par with those you’d expect from many left-wing parties.

Of course, some interpretations of the Qur’an prescribe the death penalty for apostasy. I couldn’t even manage to get elected while championing tax cuts, which strikes me as an easier sell than this.

Most Canadians will find the Islamic Party of Ontario’s values to be unpalatable even for private belief let alone state enforcement. The party is no more relevant than the Communist Party of Ontario or Go Vegan, which both ran candidates in last year’s Ontario election.

Setting aside the religious fervor most vegans have, the Islamic Party of Ontario would, if registered, be Ontario’s only faith-based party.

In response to backlash from conservatives, I’ve seen some on the left try to compare the Islamic party to the federal Christian Heritage Party. Unlike the IPO, which wants a full-throated Muslim theocracy, the CHP seeks only to make Judeo-Christian values the basis of law. Even so, both parties have about as much a chance at winning a seat, which is to say zero.

Some Muslim voters may support the party based on name alone. It may even find a bit of support in Don Valley West, the riding encompassing the Thorncliffe Park neighbourhood nicknamed “Halal heaven.”

Either way, it will remain a fringe party with no power or credibility in Canada, not worth the fear or scorn so many are affording it.

People should be concerned about the Islamist influences targeting mainstream, electable political parties.

There are suit-wearing apologists for Hamas and the Muslim Brotherhood wandering the corridors of power in Canada who believe the same things as the Islamic Party of Ontario but are far less brazen about expressing them.

It’s quite common to see a couple of notable organizations touted as mainstream and moderate voices for Islam and Muslims, when their values and funding tell a different story.

The anti-Islamophobia motion passed by the Liberals is the by-product of a push from one such group.

The real danger to Canadian institutions and values comes in the subtle and subversive way this influence has come about.

The Islamic Party of Ontario is about as subtle as Madonna twerking in downtown Riyadh.

We must actually watch those who try to overhaul Canadian democracy through legitimate—or seemingly legitimate—organizations. These groups have found audiences with pandering politicians of all stripes because of the political class’s eagerness to shore up support from specific ethnic and religious communities.

These groups also have a war chest that’s allowed them to successfully sue numerous Canadian media companies into silence, meaning they’re rarely, if ever, exposed.

These battles are taking place in the shadows of Canada. We should be grateful the Islamic Party of Ontario is at least being honest about its goals.