Last week the Ontario and federal governments battled it out in court on the carbon tax and it was the tale of two very different stories.
The opening arguments laid out by lawyers representing the opposing sides showed where they wanted to put their emphasis.
The lawyer for the Government of Ontario argued that the law was unconstitutional while the lawyer for the Government of Canada argued climate change was real, urgent and needed action taken.
One was a legal argument, the other emotional.
Given that judges are human, either could carry the day and anyone saying they know which side will win is fooling you.
Decades of following court cases have taught me that judges are unpredictable.
When he opened his arguments, Josh Hunter, deputy director for the constitutional law branch for Ontario, argued that the Greenhouse Gas Pollution Pricing Act violated federalism and the constitution.
Hunter was clear to say the Ontario government was not challenging whether climate change was real or action needed to be taken, they were challenging how the federal government was attempting to reach their goals.
“What this reference is about is whether Parliament can impose its solution to the problem on the provinces,” Hunter said. “Or whether in a federal country, the provinces have the flexibility under the constitution to choose what best meets their local circumstances as they work together to combat climate change.”
The argument from Ontario is pretty simple and rooted in legal concepts. Whether the judges buy those legal concepts remains to be seen, though I think they should.
The federal act imposing a carbon tax on some provinces and not others is a violation of our federal system, as well as an attempt by the federal government to encroach on provincial jurisdiction and, effectively, a violation of the “no taxation without representation” concept that has been part of our system dating back to Magna Carta.
Did you know the act setting up this system grants to cabinet and cabinet alone the ability to set the rate of the carbon tax and to adjust it as they see fit without passing another vote in Parliament?
Whatever you think of the carbon tax or climate change, that should be enough to have this act and the tax that goes with it declared unconstitutional.
For their part the feds admitted this act does infringe on provincial jurisdiction but then said that it does so minimally and therefore should be allowed.
Besides, they argued, against no one in the room, climate change is real!
“We know that climate change is an urgent threat to humanity,” said federal lawyer Sharlene Telles-Langdon.
“The accumulation of greenhouse gases in the atmosphere causes global warming which is causing climate change and the associated national and international risks to human health and well-being.”
I’m not saying that Telles-Langdon, the general counsel for Justice Canada, didn’t argue constitutional reasons for upholding the law, but she put the urgency of climate change front and centre at every turn.
That is a policy discussion and not a constitutional one, which tells me that even the feds think they have a weak argument on the constitution and want to win on emotion.
What didn’t help the federal argument was the release of the annual report from the federal government on greenhouse gas emissions by the province.
It showed Ontario had reduced GHG emissions by 22% since 2005. Without a carbon tax Ontario is most of the way to meeting its part of Canada’s target of 30% below 2005 levels by 2030.
British Columbia, the province that has had a carbon tax since 2008 and we are told is the model all should follow, is only down 1.5% since 2005.
As a whole Canada is up by 2%.
The question before the court is not one of the impact of climate change or the best way for governments to combat it — those are policy discussions.
The question before the court is one of constitutionality and on that front Justin Trudeau and his Liberals have failed.
Let’s hope the courts are guided by law and the constitution and not emotion or political inclination.