Monday, 12 April 2021


The Supreme Court of Canada’s (SCOC) Decision to validate the Federal Government’s carbon pricing legislation as constitutional, went far beyond that singular issue. In the process, the High Court arbitrarily shifted enormous provincial powers confirmed under s. 92 of the Constitution, to the Government of Canada. (SCOC Reference Greenhouse Gas Pollution Pricing Act found HERE.)

If anyone is concerned about the fundamental structure of the Country – which is not just “federal” but “confederal” - much of the power held by the founding provinces remained with them - they will give the Majority Decision of the Court critical attention; the issues involved are inseparable from our identity, as Canadians, and critical to how the Country operates, too.

Unfortunately, such issues often seem so esoteric that they cause glaze over the eyes of some people, the word “constitutional” alone indigestible. As a result, we are prone to leaving the issue to lawyers, which is unfortunate because they are not a representative sector of society.

Moreover, personal views about “hot button” issues - in this case one component of the Federal Government’s strategy to deal with climate change – are warped by culture, geography and politics, a misunderstanding of the policy alternatives, as well as the tendency of some (including the majority of SCOC Justices) to “throw out the baby with the bath water”, when their favourite issue is on the docket.

Such blindness ignores the long-term consequences of federal “creep” into areas of provincial jurisdiction; it sanctions silence because politicians and institutions recoil from criticizing the High Court, though the majority of the Justices exhibit a clear “centrist” bias. For those and other reasons, the Court needs to hear respectful – but strong - rebuke.

The primary role of the constitution in a federal nation, such as Canada, is to prescribe the powers that belong to the central and provincial governments, and in the process give clarity to the authority of each jurisdiction to make laws on behalf of the citizenry. As we shall see, Canada didn’t need its Constitution rearranged, as the SCOC presumed.

The success of our Constitution is not accidental. It was largely achieved via the specificity of powers enumerated under Section 91 (federal powers) and in Section 92 (provincial powers). In addition, S. 91 gives the Federal Parliament the right to make laws for the Peace, Order, and good Government of Canada (POGG), on matters not specifically assigned the provinces under S. 92. There is provision for crossover powers, too.

The POGG provision is important, the drafters having acknowledged that as the society evolves and the economy and circumstances change, the power to create Statutes not originally identified, will emerge. S. 91 takes care of those eventualities. They are referred to as “residual” powers, which have been employed to deal with matters of "national concern". Those powers are rarely tinkered with chiefly because the division of powers is relatively complete, especially considering that the power over property and civil rights is vested in the provinces.

Those who thought the Constitution incomplete, or that it possessed no capacity to deal with “modern” issues like climate change will find that it is – was - a very thorough document.

Residual powers were assessed, however, in a landmark case heard by the SCOC known as “Crown Zellerbach” (1988). The Decision helped cement the place of those powers - when and how they should be used - in the end giving a “national concern” doctrine no staying power – until now, that is and not via Crown Zellerbach. 

In this Case, however, Justice LeDain set out the principles governing the “national concern” doctrine stating that legislation permitted by those residual powers would have to be “of a temporary nature”; the issue at hand, too, must also be "singular" and "distinct". The requirement that the authority needed to be “reconcilable with the fundamental distribution of legislative power under the Constitution”, was recognized and formed a fundamental principle of the Decision.

Current Justices, Supreme Court of Canada

The recent Court Decision effectively did away with those principles and recast the division of powers as the majority saw fit.

The majority of Justices who took the view that issues of “national concern” do not even fall within the category of “residual power”; rather, they conceptualized them as Federal powers and recognized the Government of Canada as the primary source of authority. 

Put a different way, the SCOC “jumped over” the Section of the Constitution dealing with POGG provisions which Supreme Courts, since 1867, found to have served Canada’s national purpose. They created a brand-new set of powers for the Federal Government – powers that were not contemplated when the Country was formed.

Anywhere else, except maybe Ontario, such a view ought to be considered heresy.

The view did not sit well with three Justices on the Court, each choosing to write their own dissenting reasons. “Unlike Parliament’s authority to legislate in the face of national emergencies”, stated Justice Brown, one of the three, the Court’s majority gave into the demands of the Federal Attorney General with the result that their Decision “permanently vests exclusive jurisdiction in Parliament over the matter said to be of national concern.” 

The outcome will mean, he continued, “a permanent and significant expansion of federal power at the expense of provincial legislative authority unsanctioned by our Constitution…”

The first Newfoundlander appointed to the SCOC, Justice Rowe, also delivered the majority Decision a rebuke, giving particular attention to the framing of the Constitution as it existed before the Court’s ruling and focused on the “national concern” doctrine. 

He states in para 457: “The national concern doctrine is a residual power of last resort. I have come to this view through a close reading of R. v. Crown Zellerbach Canada Ltd….(that) Faithful adherence to the doctrine leads inexorably to the conclusion that the national concern branch of the “Peace, Order, and good Government” (“POGG”) power cannot be the basis for the constitutionality of the” Federal Government’s proposed Carbon Tax legislation.”

To the Justice’s argument, if the “national concern” doctrine cannot find grounding in the POGG provision, where did the majority find the new powers?

At the risk of repetition, they threw out the principles which a prior SCOC prescribed for the application of the POGG provision in the Crown Zellerbach case and arbitrarily made new constitutional law for Canada.

Justice Rowe was concerned how the Decision upset Canada’s particular constitutional balance. “The national concern doctrine”, he wrote, must be applied with caution in light of its residual role and its potential to upset the division of powers. If the doctrine is not strictly applied so as to limit it to ensuring that the division of powers is exhaustive, the federal nature of the Constitution would “disappear not gradually but rapidly” (AntiInflation, at p. 445).

In this context, the majority could have adhered to the Decision in the Crown Zellerbach case and accommodated the Carbon Tax , alone, without reframing the Constitution. This observation is in alignment with Justice Brown's assertion that the federal principle is paramount and “national concern” issues should not be used to trample provincial powers.

According to Justice Rowe, too, the purpose of the federal principle is “to reconcile unity with diversity, promote democratic participation by reserving meaningful powers to the local or regional level and to foster cooperation among governments and legislatures for the common good (Canadian Western Bank, at para. 22).”

He adds, “The distribution of powers, in turn, was not random…The federal structure protects the separate identities of the provinces from being subsumed under a unitary state.”

His minority opinion reflects on the nature of our federation and a key reason that we have arrived in the 21st century pretty damn peaceful and prosperous, too.

Indeed, his minority view might remind some people to encourage the Government of Canada – and the Provinces – to address climate change and other major issues without bending the Country to the myopic frame of mind of the few: J. Rowe writes: “The federal structure was an essential condition for Confederation. Many provinces would not have supported the project of Confederation without the adoption of a federal form.”

In short, the Supreme Court of Canada has wandered into the business of reframing a Constitution that has served this Country well, invoking change when the POGG powers are adequate, notwithstanding the fact that the changes to which they have given authority have neither been debated by the people of Canada nor given context by the environmental issue, the "national emergency" supposedly at issue.  

Dealing with GHG emission will require dozens of responses including by provincial governments. The “Carbon Tax” is only one in a very large mix of policy options. In addition, our environmental challenges are global; even the U.S. is an unreliable player in this case, as is China, Brazil and a host of other countries. 

Even on a domestic level, the choices are extremely political and both partisanship and raw (federal) power (and money) will influence the choices made. Canada's Justices have not only succumbed to the view that the Carbon Tax is a magic bullet, they have used the occasion as a foil with which to allow a process that is the preserve of Provincial Governments, of constitutional negotiations, and, if necessary, rancor. The Country did not fall apart in the years leading up to the Constitution's "repatriation" or in consequence of and a centralizing and arbitrary PM Trudeau. 

Indeed, the very suggestion that this Court's version of Canada is preferred over one constructed by the “founding fathers” contains more than a hint of sophistry; it has the odor of legacy. In this province we have hardly begun recovering from such “we know best” mantras.

The people of Canada, too, may need reminding that Confederation was not easily achieved: Four entities began the federation in 1867; in addition to the "territories", others joined in in 1870. 1871, 1873, and 1905. NL rounded out the Dominion in 1949. With very minor differences, NL accepted the constitutional arrangements then in place, including the division of powers.

After Confederation, most jurisdictions jealously guarded their powers on behalf of their citizenry. They remained zealous over s. 92 knowing that control of their political destiny was now shared by others, especially a powerful central government, and they knew that in a federal system, they would always be at a disadvantage against the two provinces that controlled the largest block of Seats in Parliament. 

So, while Quebec did not support the Federal Government’s position and and is affected by this Decision, too, it has far less to worry about than the eight provinces on the periphery.

But even here Justice Brown, one of the three minority Justices, writes in reference to the protection given in the Constitution to Quebec’s civil code:  “…in bypassing s. 94 (which the Majority also managed) so as to embrace their centralized vision of Canadian federalism, both the Attorney General of Canada and the majority would… strip Quebec of its protection from federally imposed uniformity of laws relative to property and civil rights, and deprives the provinces, and Quebec in particular, of part of the bargain negotiated among the partners, without which “the agreement of the delegates from Canada East . . . could [not] have been obtained”.

Justice Brown might as well have said that five of his colleagues do not know their history.

A Supreme Court – especially one that gives in to unbridled fits of grandeur or believes it is their duty  – not that of the elected Parliaments - to fight climate change, will change the Country over time. They will do it in the image of a handful of unelected men and women, and not necessarily for the better.

Canada has thrived and become one of the world’s great nations; don’t discount the extent to which our constitutional structure has influenced that outcome.

Canadians, especially those in the peripheral provinces  – Alberta and Saskatchewan excepted - should not be pleased that so many of their political leaders treated the Court Decision with studied silence; there was not a word from Premier Furey. 

I do wonder, too, if the Justice Department was napping or if they have simply grown use to Furey's dull predecessor, not to mention the Province's descent into federal deference, which is  now getting close to obeisance.

Canadians – including those in this Province - should be careful of taking the nation's success, the Constitution and our institutions for granted unless, of course, they are persuaded that “greatness” will always be thrust upon us.