We didn’t need a judge to tell us Ford’s sticker law was self-evidently bad

OPINON: Last Friday, an Ontario judge struck down the province’s Federal Carbon Tax Transparency Act. The government should think twice about appealing the ruling
By John Michael McGrath - Published on Sep 08, 2020
A gas pump displays an anti-carbon tax sticker in Toronto on August 29, 2019. (Chris Young/CP)

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Late on the Friday before the long weekend, an Ontario judge struck down the province’s Federal Carbon Tax Transparency Act as an unconstitutional infringement of free speech. The law, which forced gas stations to put (poorly made) stickers on their pumps illustrating the increase in the federal carbon tax, is an impermissible form of compulsory speech, according to Judge E.M. Morgan of the Superior Court of Justice. This isn’t like the province requiring that fast-food outlets put calorie counts on their menus or that companies put up “no smoking” signs, the judge ruled: the stickers, which became compulsory in 2019, “create not so much consumer warnings as political missives” intended to hurt the federal Liberal party in the year before an election.

In one sense, the judge’s decision is not terribly surprising. The FCTTA was a relic of the early, knucklehead-dominant phase of the Doug Ford government, one that more or less ended with the dismissal of his first chief of staff, Dean French. It was a self-evidently bad idea, but the nature of law in Canada is that the law was in place until it was properly challenged in court.

Which brings us to the first notable element of the judge’s ruling: the Canadian Civil Liberties Association (headed by former Ontario attorney general Michael Bryant) had to be granted the right to challenge the law in the first place. The CCLA tried to find a gas-station owner who would be willing to appear in court as a party harmed by the government’s compulsory partisan speech. Somehow, the companies who reliably holler about onerous government regulation in almost every other context were entirely unwilling to join a challenge to the FCTTA. So the CCLA argued it should be permitted to challenge the law alone, even though it isn’t directly harmed by the law, and the judge agreed.

With the preliminaries out of the way, Morgan proceeds in his decision to demolish the government’s ridiculous attempts to justify the law on the merits. Perhaps most memorably, the learned judge criticizes the gas-pump stickers because they tell Ontarians only about the costs of the federal carbon tax — and don’t include even a passing mention of where that money goes (back to taxpayers, in the form of a rebate).

“For example, in labelling itself the Federal Carbon Tax Transparency Act … but in making transparent only those aspects of federal policy that fit the government of Ontario’s political narrative, the statute speaks in the voice of an unreliable narrator,” Morgan writes. “To invoke a colloquialism, the statute exudes anger (i.e., opposition) but says that it is just disappointed (i.e., transparent).”

Lest anyone dismiss Morgan as a progressive activist judge run amok, two points: First, he was appointed to the Ontario Superior Court of Justice in 2012 by Prime Minister Stephen Harper. Second, he didn’t have to divine the true (partisan) purpose of the FCTTA — the government laid it out for him. Consider, for example, the unwise and intemperate remarks from Greg Rickford, the minister of energy, northern development and mines, which are cited by the judge.

“We’re going to stick it to the Liberals and remind the people of Ontario how much this job-killing, regressive carbon tax costs,” Rickford told the house on April 16, 2019, in response to a question from the NDP’s Taras Natyshak about the stickers. It’s extremely common to cite debates in the legislature (or federally, in the Commons) to help illuminate the purpose of a law. Rickford’s remarks aren’t the only or even the most important reason that the law was struck down, but they certainly made the judge’s job easier.

This latest judicial defeat for the government is probably an unwelcome reminder of the Tories’ unpopular opposition to climate policy, and it won’t be the last one this month: two weeks from now, Ontario and Saskatchewan will argue their cases against the federal carbon tax at the Supreme Court of Canada. In both provinces, the federal carbon tax has survived review by an appeals court; in Alberta, that province’s highest court found the carbon tax unconstitutional.

Ford has been enjoying a substantial period of high job approval, and his party may yet profit from that at the next election. But part of that success has come from the fact that all the other policy files this government has attacked have faded into the background thanks to COVID-19, and all of his disagreements with Prime Minister Justin Trudeau have been replaced with regular affirmations of just how swimmingly the federation is working together in this crisis. The Tories may want to hope that Morgan’s decision, and the Supreme Court arguments to come, won’t remind voters of the guy they weren’t overly fond of only six months ago.

As for the Federal Carbon Tax Transparency Act, the Attorney General’s office tells TVO.org in an email that the government is still reviewing the court decision and hasn’t yet decided whether to appeal. If the government is looking for advice, here it is: this was a dumb law when it was introduced, it was still a dumb law when it was passed by MPPs, and it remained a dumb law when the lieutenant-governor’s pen signed it. Let the dumb thing die, and be done with it.

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