A bold change to a basic constitutional test

In the recent Reference re Greenhouse Gas Pollution Pricing Act on the federal Greenhouse Gas Pollution Pricing Act (GGPPA), the majority of the Court of Appeal assured its readers that it was not wading into the myriad of political issues evoked by the reference. Instead, they were asked only to opine on whether the federal government has the constitutional jurisdiction to enact the GGPPA. The court’s significant departure from existing constitutional law doctrine may, to some readers, render those assertions less convincing. They do, however, provide for a fascinating read.

The majority found the GGPPA wholly unconstitutional, in a treatise of a judgment explaining why the federal government is without any authority to legislate regarding “GHG emissions”— even holding that its attempt to do so was “constitutional chutzpah.” Justice Thomas W. Wakeling’s concurring opinion was replete with hypothetical analogies of British Columbia pine beetles threatening Alberta and a meteor explosion over Northern Quebec (both examples purporting to explain when the federal government can’t validly enact legislation). The lone dissent of Justice Kevin Feehan found the GGPPA constitutional.

The SCC was set to hear the reference question in early March 2020 from the judgments of the Ontario and Saskatchewan Courts of Appeal, where the majority in both courts found the GGPPA constitutional. As that hearing was sidelined as a result of the coronavirus pandemic, the Alberta Court of Appeal decision may yet directly end up before the SCC on appeal.

What the GGPPA does

The GGPPA provides for minimum standards of price stringency for certain items producing GHG emissions. It would only apply if a provincial law did not meet these minimum standards. If a provincial law did not meet these minimum standards, the GGPPA would apply in that province. The GGPPA’s aim is to alter the behaviour of Canadians and enterprises to produce less GHG emissions, invest in cleaner technology, or pay to keep producing GHG emissions. The hope is that this will help Canada lower its cumulative GHG emissions, allow Canada to perform international climate change treaty obligations, and thereby help ameliorate global climate change.

National Concern Doctrine and Characterization of the Law

For the federal government to have the constitutional jurisdiction to enact such a law, it would have to fall under the “peace, order and good governance” clause (“POGG”) in section 91 of the Constitution Act, which confers on Parliament the power: “... to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces...”.

There are three branches of POGG: (i) the gap (residual) branch, (ii) the emergency branch, and (iii) the national concern branch. The federal government in the GGPPA Reference argued that the national concern branch of POGG permitted it to enact the GGPPA.  For a matter to qualify, the SCC in R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 held that a matter of national concern must:

• have a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern;” and
• a “scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution.”
• In the same case, the SCC recognized the relevance of “the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.”

This test has led to significant disagreement across the three courts of appeal that have assessed the constitutionality of the GGPPA as to the proper “characterization of the law.”

To determine whether a government has the constitutional jurisdiction to enact the challenged legislation, the court first assesses the pith and substance of the law (by looking at the purpose and effect of the challenged legislation) to characterize the “matter.” Second, it “classifies” the “matter” under the jurisdiction of either the provincial or federal government. How the matter is characterized drives its classification. In a sense, everything turns on characterization. 

Although the federal government sought a narrow characterization of the GGPPA (“the establishment of minimum national standards of stringency for GHG emissions pricing to reduce Canada’s nationwide GHG emissions”), which would in turn narrowly confine federal jurisdiction to legislate on that subject matter, the majority found that the Act was not narrowly confined, but broadly encompassed the regulation of “GHG emissions.” As such, the GGPPA could not be classified under the POGG power because it did not have the requisite “singleness, distinctiveness, or indivisibility” or “scale of impact” on provincial jurisdiction that can be reconciled with the division of powers in the Constitution.

Significant changes to constitutional law doctrine

The reasons for the majority suggest a bold change to the national concern doctrine—and it will be interesting to see if the SCC chooses to tackle it.

Prior to analyzing the national concern test as set out in Crown Zellerbach, the majority adds a gatekeeper step to the national concern doctrine. Before the national concern test can even be engaged, the province must have no jurisdiction over the “matter” of the impugned Act (here, “GHG emissions”) under any provincial head of power except for section 92(16) which is “Matters of a merely local or private nature in the Province”. The rationale for this change, according to the majority, is that only matters of a merely local nature could be transformed into matters of a national concern—the other specified heads of provincial power can never be. The majority reasoned that if the Fathers of Confederation wanted the federal government to have jurisdiction over provincial matters that subsequently became of national concern then they would have said so. (What the majority failed to deal with convincingly was the jurisprudence that has already rejected this view. And if the Fathers of Confederation wanted POGG to apply only if matters fell within section 92(16) and no other, they could have said so too.)

At its heart, the majority’s point is this: the POGG head of jurisdiction, and the national concern doctrine in particular, cannot be wantonly expanded so as to oust provincial jurisdiction — otherwise the division of powers in Canadian constitutional democracy collapses. What the majority did not address is the reality that section 92(16) has rarely been used as the sole basis for provincial power in constitutional jurisprudence — because most matters fall within a more obvious provincial head of power. It is therefore questionable whether anything of substance could fall purely within section 92(16) but no other provincial power, severely restricting federal jurisdiction over a matter pursuant to the national concern doctrine. Perhaps this was the majority’s (unstated) point?

Justice Wakelin’s concurring opinion also makes a bold change to the basic constitutional test. He abandons the “pith and substance” language, calling it unfortunate, archaic wording that constitutional lawyers are wont to use (which may be an apt conclusion: “pith and substance” does have a delightfully esoteric ring) but doesn’t address the fact that the “pith and substance” test has been the fundamental constitutional test for characterizing a law for over a century. He instead asks whether the impugned law “displays features” that justify its classification to provincial and federal jurisdiction and compares the “importance of the interests” of its aspects (unless jurisprudence has already undertaken that task and resolved the conflict). This is a novel alteration of the fundamental characterization and classification test.

Justice Feehan was the only one to find the GGPPA constitutional. The straightforward modesty of his approach underscores how much of a departure from orthodoxy the majority made. He applied the straightforward pith and substance characterization test, and the national concern doctrine as it has been developed in prior jurisprudence. With that said, he provides little analysis of the effects of the GGPPA (failing to consider whether the extrinsic and intrinsic evidence suggests it impedes provincial jurisdiction). The SCC will not be able to avoid this issue and will have to tackle it head on.

Going forward

How the SCC deals with the majority’s new proposal to change the test, and how it will structure the national concern doctrine going forward will, potentially, be pioneering since there is little jurisprudence concerning the national concern doctrine as it is. And as the world continues to become even more interconnected and various collective action problems arise, it is likely that more of these division of powers issues will appear as new concerns threaten not just a single province or the nation, but the entire world.

The author is indebted to the research assistance of Isabelle Lam. The opinion and any errors remain with the author.