The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

Would Canada’s framework on climate change withstand a constitutional challenge?

December 15 2016 15 December 2016


Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.

Alberta will impose an economy-wide carbon tax with its Climate Leadership Act, becoming effective on January 1. British Columbia has already put a price on carbon through the Carbon Tax Act but it will wait until after an equivalency evaluation before increasing its pricing in-line with the federal timetable. Quebec, through the Regulation respecting a cap-and-trade system for greenhouse gas emission allowances and Ontario, through the Climate Change Mitigation and Low-carbon Economy Act have opted for a cap-and-trade system to control greenhouse gas emissions. Although the exact future price of carbon under a cap-and-trade system is not known, the EcoFiscal Commission estimates $19.40 per tonne by 2020.

Signatories who will need to develop legislative frameworks to accommodate carbon pricing are Newfoundland, Prince Edward Island and New Brunswick. Nova Scotia is promising a cap-and-trade system similar to Ontario and Quebec. It seems likely that the territories will allow the federal government to administer a carbon levy.

Both Manitoba and Saskatchewan have elected not to sign the framework, each for their own reasons. While the Premier of Manitoba, Brian Pallister, appears to be holding out for more funding for health care, the Premier of Saskatchewan, Brad Wall, has been a vocal opponent of a price on carbon since its introduction. He has also questioned the efficacy and the constitutionality of national carbon price.

What are the odds a constitutional challenge would succeed? Nathalie Chalifour, Co-Director of the Centre for Environmental Law and Global Sustainability thinks they are slim and in a post written before the deal,  found justifications for a national carbon-pricing scheme under Peace, Order and Good Government powers:

To qualify, a subject must have a certain singleness and indivisibility which renders it national, yet be sufficiently delimited so as to minimize the impacts on provincial jurisdiction. One of the tests the courts use to determine whether an issue has the requisite “singleness” is to consider what could happen if one province failed to deal effectively with the issue within its borders. If the failure of one province to cooperate could cause problems for the residents of another province, it’s a matter of national concern.

GHG are the quintessential global pollutants, affecting the atmosphere regardless of where they are emitted. The Supreme Court has stated unambiguously that Parliament has jurisdiction over the control of pollution beyond its borders, as well as extra-provincial pollution.

And criminal powers:

Parliament’s criminal law power has been interpreted expansively to cover not only crimes, but also a range of behaviour — including environmental behaviour. To quality as federal criminal law, a law must have a valid criminal purpose and create a prohibition coupled with a penalty. The Supreme Court has been unanimous in finding that environmental protection is a valid criminal purpose.

Photo licensed under Creative Commons by USDAgov

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