Canada will be co-hosting a press freedom summit in July with the United Kingdom, which I need your help to cover.
It’s an interesting juxtaposition for Canada to be lecturing the world on the importance of a free press when, this week, Canadians learned the federal will be putting together an A-list of approved media outlets to serve as the basis for who gets to benefit from a fund of tax money meant to bolster news subscriptions.
The problem for Canadians is that this creates an economic imbalance between government-funded outlets, and those not on the dole. It also raises integrity questions about the quality of content emanating from outlets wishing to stay in the government’s good books–literally.
Whatever you may think of Tommy Robinson, no one can argue he’s been given a fair shake by the media or the British government.
To be fair, he’s thumbed his nose at both quite a bit over the years, but due process is meant to be for everyone.
Everyone except him, that is.
An appellate court already found last summer his rights had been violated when a Leeds judge had Robinson arrested, charged, tried, convicted, sentenced and hauled off to jail in a matter of hours. When I was in London last October I overheard British mainstream media journalists conspiring to lie about Robinson and professing his guilt before the judge even entered the courtroom.
That judge, the most senior at the famous Old Bailey, said thanks to a statement provided by Robinson there was enough ambiguity about whether he was, in fact, guilty of contempt of court that the case should be referred to the Attorney General of the United Kingdom, Geoffrey Cox.
It was, and Cox ordered a new hearing, sending Robinson back to court on a charge for which he’s already served 10 weeks of a 13 month sentence that’s been tossed out.
On Tuesday, government will argue in a two-hour hearing that Robinson should be subjected to another contempt of court hearing. Robinson’s legal team will argue he shouldn’t.
Yes, I flew across the Atlantic for a two-hour procedural matter. I am grateful to have received a grant covering my flight and hotel costs, raised by Ezra Levant and The Rebel. I’m paying for everything else out of my own pocket. Though I’m happy to do so, as Robinson’s case really is about the procedure.
After all, it was a supposed procedural infraction that the initial Leeds judge said justified imprisoning Robinson in the first place. Covering, as an activist journalist, a case the mainstream media had been ignoring was his “crime.”
I’m here again because as the prosecution of Robinson mounts, so too do questions about the state of free speech and press freedom in Western nations.
Despite all this the governments of Canada and the United Kingdom are co-hosting a press freedom summit in London–where I am right now–in July. Last week I launched a crowdfunding campaign through True North to attend and cover the summit, being spearheaded by Foreign Affairs Minister Chrystia Freeland.
If you support independent voices fighting to stand up for these freedoms, please make a contribution of what you can afford, whether it’s a few dollars or a few hundred dollars.
I take no joy in needing to cover these things, but take comfort in knowing how many people there are who support the effort.
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.
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.
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.
The much-awaited constitutional challenge of the federal government’s carbon tax kicked off Monday at Osgoode Hall, with lawyers for Ontario’s attorney general first up on the docket laying out their objections to the carbon pricing scheme.
It was made clear early on in the provincial government’s submission, as well as its opening argument, that climate change and global warming are not, themselves, on trial. Rather, the federal government’s one-size-fits-all approach to tackling it is.
Whether a carbon tax, a cap-and-trade system, an incentive program or some other penalty for big polluters is the best way to curb environmental issues is a “policy question, not a legal question,” one of Ontario’s lawyers, Joshua Hunter, argued.
Ontario’s legal approach appears, at least on the surface, to be rooted in separating the Greenhouse Gas Pollution Pricing Act’s policy implications from its constitutionality, though a good chunk of the opening argument was nevertheless devoted to pointing out how the federal plan is, in fact, inefficient and ignores other actions undertaken by Ontario.
Hunter argued the Greenhouse Gas Pollution Pricing Act, which imposes a carbon tax on provinces lacking their own pricing schemes meeting the federal government’s standards, focuses solely on the price governments put on emissions and not the broader picture of climate and environmental policy, even when such policy specifically reduces emissions.
One compelling example offered by Hunter is the decision by Ontario’s previous government under Kathleen Wynne to shutter its coal-powered electrical plants. Doing so reduced emissions by 22 per cent—arguably more than a carbon tax ever could—but amounts to nothing in the federal government’s view because it isn’t a pricing scheme.
Hunter also pointed out that the Climate Action Incentive, an income tax rebate given by the federal government to residents of provinces without carbon prices, redistributes carbon tax revenue indiscriminate of actual personal emissions and carbon output. For example, a long-haul truck driver based in Ottawa who burns thousands of dollars of fuel each year will receive the same amount as a Torontonian who walks to work every day.
While this observation speaks to the ridiculousness of Trudeau’s climate plan, it doesn’t appear to advance the idea of unconstitutionality, though I’m no lawyer.
Unfortunately, Canadian courts have opted to weigh in on policy questions in the past rather than taking a strict constitutional view of things, so I won’t dare predict an outcome this early.
Ontario raised a significant concern about where federal government’s claim of jurisdiction could lead on this matter. Hunter argued that if the federal government is able to regulate greenhouse gases per se, it would also give the government license to regulate anything that causes greenhouse gases. This would run the gamut of pretty much all human activity, letting the federal government trump provincial jurisdiction on whether cars are allowed, how people heat their homes, and virtually everything else.
In the afternoon the case got a bit into the weeds on subjects I’ll have to explore further before rendering an opinion. One of Ontario’s lawyers, Padraic Ryan, spent a considerable amount of his time on the semantics of whether Trudeau’s carbon tax is, in fact, a tax.
There’s a political question about whether a price on carbon is different from a tax on carbon. As it turns out, there’s also a constitutional question there. Ryan argued the federal government doesn’t explicitly refer to it as a tax in the legislation authorizing the price on carbon; ergo Parliament hasn’t yet authorized a tax in the eyes of the law. This would make it an unconstitutional tax because it has the practical effect of being a tax without the legal authorization to be one. It occupies a weird twilight zone in Ontario’s view because the price also doesn’t meet the legal threshold to be termed a regulatory charge.
There was a fair bit of attention given to how Ontario defines it, suggesting this will play heavily as the week progresses.
Aren’t you glad I’m sitting in on this and not you?
The court reconvenes Tuesday morning at 10:00 am with the federal government laying out its opening arguments.
