Law prof examines opinion from dissenting justice

As constitutional law professor Dwight Newman was reading the Supreme Court of Canada’s ruling on the federal government’s carbon pricing law, he found the decision troubled Justice Russell Brown.

The court ruled 6-3 that the carbon tax is constitutional on grounds the federal government is authorized to act on a matter of national concern. In this case, those are the harms caused by climate change which cross provincial borders.

Brown was one of the two dissenting judges, while Justice Suzanne Cote disagreed with the ruling in part.

“He would have struck down the legislation and he has some pretty tough things to say about the decision of the majority,” Newman told Gormley on Thursday.

According to Newman, Brown sees a significant rebalancing of power within Canadian federalism that heavily tips in favour of Ottawa, with a new demarcation of federal and provincial powers.

“He ends up saying that they’ve created a new distinctly hierarchical and supervisory model of Canadian federalism. They’ve said the federal government is now suddenly in charge and at the expense of the provinces,” Newman said.

“He sees a lot of negative things from this in terms of the precedent for federalism and he even refers to the possibility of serious tensions in the federation that could result.”

The federal government argued its case citing the “peace, order and good government” clause of the Constitution, a doctrine that the court noted has been rarely applied.

“It’s something that has always been seen as potentially posing risks of the federal government gaining too much power if it were applied too often,” Newman said.

Newman said the federal government chose that route as opposed to defending carbon pricing as a taxation power. Indeed, the majority of judges agreed that the “carbon tax” was a regulatory charge and not a tax.

“It was running up against some very strong provincial arguments that it was a very peculiar sort of tax because it would be imposed … differently on different provinces just through executive decisions at the federal level,” he said.

As well, it would only kick in if provincial or territorial climate plans did not meet federal standards. But in Brown’s view, Ottawa could end up with the latitude to regulate anything.

“He says this idea that the federal government can just create national standards on something means they could take over practically anything and that’s not consistent with the idea of federalism,” Newman said.