Arguments over the constitutionality of the federal carbon tax are wrapping up at Osgoode Hall, in downtown Toronto, on Thursday morning, as Canada and Ontario sum up their cases for and against it. The hearing hasn’t exactly been must-see TV, but the fact that the Ontario Court of Appeal allowed cameras in the court was notable. By Tuesday afternoon, it might very well have been regretting its choice.
Tuesday saw Canada present its arguments for the validity of the carbon tax, which the federal government formally imposed on Ontario and three other provinces on April 1. The five-justice panel peppered Canada’s lawyer, Sharlene Telles-Langdon, with a number of questions ranging from skeptical to sharp. Which is how it’s supposed to be when any government is defending a new and expansive policy in court.
Justice James MacPherson noted that Ontario has substantially reduced greenhouse-gas emissions largely without a carbon price (Ontario’s brief Liberal experiment with a cap-and-trade system notwithstanding) and pushed the federal lawyer on why Ottawa was asserting its right to force a carbon price on a province where so much has been accomplished without one.
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“We don’t care how they’ve achieved it,” Justice MacPherson said. “They’ve achieved reductions of 22 per cent. Why don’t you just leave them alone?”
Seeing the first attempt at a real national climate policy get bogged down in constitutional wrangling may make environmentalists and other advocates for a carbon tax seethe, but MacPherson’s premise — that GHG reductions, not carbon taxes, are the goal — is entirely fair. And his question — why isn’t the federal government focusing on provinces with more work to do? — is implicitly about the limits of federal power.
You wouldn’t know that from the premier’s office, which hastily clipped out MacPherson’s questions to Telles-Langdon and pushed them out to Doug Ford’s Twitter followers.
“We've done more than our fair share to meet emissions reduction targets, but the federal government still wants to punish Ontario with a job-killing carbon tax,” reads Ford’s tweet, which badly mischaracterizes MacPherson’s queries.
MacPherson had been at least as skeptical of Ontario’s claims the day before — though, for some reason, the premier’s Twitter staff didn’t feel the need to broadcast that fact to all and sundry.
Nearing the end of the arguments on Monday morning, the justice read out the province’s arguments that the federal Greenhouse Gas Pollution Pricing Act would create, in its words, “a comprehensive regulatory scheme for the reduction of greenhouse gas emissions from all sources in Canada.”
The problem, MacPherson noted, is that “not a word there even hints at anything provincial … None of that sounds provincial.” Ontario’s own characterization of the federal carbon-tax law had failed to prove that Ottawa was stepping on provincial jurisdiction. That’s kind of a problem when the core of your argument is that the feds are trying to trample on provincial powers.
My point isn’t to commit the same error as the Tories but in reverse: I don’t think that a single quote, taken out of context, demonstrates that MacPherson is going to rule in Canada’s favour. Rather, my point is that serious constitutional questions are being debated at Osgoode Hall this week, and they deserve to be treated seriously — not stripped of context and then pressed into service for the government’s social-media strategy.
The risk here is that the antics of the premier’s office may convince the court that the costs of livestreaming proceedings outweigh the benefits: Ontario’s public has a hard enough time accessing important court cases, and this won’t be the last time a matter of general public interest goes before the justices. We want the justices to see that public scrutiny won’t lead to unnecessary mischief — which is just what the government created.
Ontario’s highest court has taken the province’s arguments seriously and opened up an important debate to the public — it would have been great if the government had managed to act like grownups about that.