So welcome all to th- tonight’s cons- Constitutional Conversation. It’s my pleasure to introduce two speakers from the frozen north. Is it still frozen up there or has spring begun to come? It’s toasty warm. Oh, toasty warm. Okay. That’s why, that’s because of global warming, and that is not irrelevant to the topic for tonight.

I, I don’t know how everybody else teaches constitutional law here, but I make somewhat frequent references to comparisons, especially to France, Britain, and with respect to federalism questions, to Canada. I think it’s really helpful, not that we interpret our constitution in light of practices elsewhere, but I think it’s helpful for understanding the way our constitutional design works to be able to compare our system to that of, other countries with a very similar culture and history.

And Canada has- a strong federalism system that in many ways, at least to my mind is is a, is… works better, at least better in terms of maintaining federalism than than ours does. And and there are two guests tonight will be describing how that works, but especially talking about Canadian federalism in the context of of an important and very controversial question that faces both of our countries, namely what to do about climate change.

And more important, who should do it, who has authority to make regulations having to do with climate change. And in the United States these turn out to be statutory questions for the… almost entirely because of our expansive interpretation of the Commerce Clause. But in Canada, the federalism provisions are much more entrenched, much more specific, and indeed much more interesting.

So let me introduce the two speakers for tonight who are going to be addressing these questions. First, on my right is a former Canadian chief… not chief. A former Canadian Justice of the Supreme Court Russ Brown. I had the pleasure of meeting Russ, we’ve decided it was about seven years ago when he came came to speak and he and I and a few others had a wonderful hike out in Marin County and and I- I’m so happy to see you again, Russ.

We we had such a good time. I hope he will tell a few stories tonight because he is a raconteur of the first order and and so welcome. You retired, what? Two years ago, I believe it was, roughly. Just about three. Three. Yeah. Almost three years ago. And on my left whom I haven’t met before, the is Tom Wakeling who is a retired a judge from the…

Do you call it judge or justice from the Court of Appeal? Justice. Justice. So our Courts of Appeal, I was a Court of Appeals judge, and we don’t call ourselves justices. So anyway Justice Tom Wakeling from the Court of Appeals in in Alberta. As you may know, Alberta is is somewhat culturally different, a little bit more like the American West, but also economically distinct because a great portion, I don’t know if it’s a majority, but a very significant portion of the energy resources of Canada are located in the province of Alberta.

And the Canadian Constitution provides for the regulation of energy and natural resources at the provincial level. And Alberta is ground central for some of the most interesting debates over federalism in Canada. So with that introduction let me just turn it over to to our speakers and ask first for one of you maybe just to explain the Canadian system how it works and what we’re gonna be talking about tonight.

Justice Brown, would you do that? Sure, I’ll take that one on. So- I think it was in this room about seven years ago I compared Canada as the kid who never left home. Whereas you moved out in a storm at age 16 in a big huff and, you moved in with someone else and then you guys got in your own fight later on.

We were the teenager that, that stayed in the basement suite and into the 20s and into the 30s, and you hope that the kid moves on. And gradually there are little bits of independence. You move out and but he’s still getting allowance. And, a- and and that’s Canada.

The story of Canada is a story of gradual not so much independence but a, an assumption of its own sovereignty from the United Kingdom. The Constitution of Canada has two distinctive characteristics. One is that it actually expresses itself as it shall be a constitution similar in principle to that of the United Kingdom.

And so because of that, our system of government is a Westminster parliamentary system. We don’t have we don’t have branches of government as you do in the United States, although some of our judges, including some of my former colleagues, display their ignorance by talking about it. In the Westminster parliamentary system, there is only one branch of government, that is the executive.

That is the government. Parliament legislates, the executive executes, governs, and the judiciary judges. That is with one exception that we’ll come to when we talk about reference questions to courts. That’s one distinguishing feature of the Canadian Constitution. The other is that it is it institutes in Canada a federation.

So we have two levels of legislative authority in Canada, the Parliament of Canada, which consists of the House of Commons, the Senate, and the King and the legislative the provincial legislatures as well. Their powers are divided in the Constitution. Provincial powers are expressly stated, and they are expressly stated to be exclusive The f- the national parliament has powers which our, are s- are residual But without limiting the generality of that residual power, some of the powers are listed out.

But the residual power is stated to be a power to make laws for the peace, order, and good government of Canada. We call it POGG, peace, order, and good government. That is leg- that is language that is found in some of the old colonial charters in the Caribbean and in the Quebec Act of 1774, giving the governor powers.

That language was carried forward. So the Parliament of Canada is given by the Constitution a residual authority of lawmaking for the peace, order, and good government of Canada. That’ll become an important point. That’s why I stress it. It’s probably also worth mentioning that the environment was not a particular subject that the f- that the framers thought much about when they divided these powers in 1867 So there is no single authority vested in either the provinces or in the Parliament of Canada to legislate in respect of the environment.

There are specific provincial powers that are important in this regard. The provincial legislatures are given authority to legislate over property and civil rights. They are given authority to legislate in respect of local works and undertakings. And as Professor McConnell just mentioned they also have authority over the development and exploitation of natural resources, which is very important in the instance of Alberta.

Federal Parliament is given authority over sea coast and inland fisheries, over as they’re called in the Constitution, Indians and lands reserved for Indians- Yeah … which can have implications in this area. Also might surprise you to know that they have relied whether successfully yet, we don’t know, on the criminal law power in order to…

the criminal law is a federal source of authority in Canada to defend in this case, clean energy regulations, clean electricity regulations. And of course, they have that residual power, lawmaking power for the peace order and good government of Canada, which as we may come to, was s- they successfully relied on, over my dissent in defending the Greenhouse Gas Regula- or the Greenhouse Gas Act in Canada, which brought, imposed a federal carbon tax, some of which has since been repealed.

Anything to add to that or? It might be helpful to spend a few minutes talking about some of the issues that arise in a typical constitutional division of powers case in Canada. It’s not a s- it’s not a problem that you would see in the United States. My understanding, Professor McConnell, is that when you look at Article one, Section eight, you get a pretty clear understanding of what the powers the federal government has.

You look at the- E- except for the word clear. Then you look at the Tenth Amendment that says anything that wasn’t given to the central government is given to the states As Justice Brown has indicated, we have a slightly different methodology. We have division of powers between the central government, which is the…

In Ottawa, and the regional governments in the 10 provinces and territories, and we assign powers to each of them. And the last time I did the math, Russ, you probably can gi- give a good idea if I got this right. There’s roughly 40 enumerated powers in the Constitution of Canada, and some of them are abstract some of them are very specific.
And sometimes you have a conflict between two specific powers, sometimes you have a c- an alleged conflict between two abstract powers. Justice Brown has given you some of the enumerated powers, but let me just mention some of them again s- so that I can then take you through how I analyze a division of powers case.

So I, I’m now looking at the powers that are granted to the central government. One is regulation of trade and commerce. That’s a pretty abstract power, and it’s certainly a general one. Then there’s a host of specific ones. Postal service copyright, legal tender. So those are some that you’re gonna see that are- Horses on Sable Island.

Yes, indeed. And on that you’d have beacons and buoys. There’s a strange list. Then we go to the province, and they’ve got some powers that are broad and general. Property and civil rights. Then we’ve got very specific ones solemnization of marriage in a province. So we’ve…

In a typical dispute, we’ve got a claim by either the government whose law is challenged, that it’s valid and they have to defend it. Let me just take you quickly through the analytical process that I think is helpful when you’re looking at something. So suppose you have a law that says a will on marriage no longer has legal effect.

Now, you look at our distribution of powers and you right away see that one of the heads that is assigned to the federal government is marriage. But property and civil rights is a head of power assigned to the provinces. So how are we gonna deal with it? Here’s the general approach that I’ve used, and I think most judges who’ve spent a lot of time thinking about it do.

The first question we ask is, what is the purpose of this law, and how does it affect those whose behavior is subject to it? We have to have a good grasp of the implications of the law before we can start to determine which level of government has the authority to pass it. And once you know how the law works on the ground, how is the behavior of those subject to it going to be altered?

You can start to ask some of the additional questions. And the the next question that I ask is, does the challenge law display a feature that would reasonably justify its classification as a, one of the laws assigned to the province? And if the answer is no, then it automatically means that this law can only be enacted by the federal government because the federal government has the residual lawmaking authority.

One of the opening words of the provision allocating power to the central government says that if a provincial government doesn’t have this power, the federal government’s gonna have it under the general peace order and good government policy. So- So exactly the flip of our Tenth Amendment. Yes, indeed.

Then if the answer is yes, it does display a feature, you then ask the next question. So in the example we gave of the law that said a will is no longer valid if upon the marriage of the maker of the will, does this display a property and civil rights issue feature? Yes, it does. We’re talking about the disposition of property on death of the will’s maker.

So the answer is yes, that law displays a feature that allows its classification as a provincial law. Then the next question is does this law, taking into account the purpose and effect, reasonably justify its characterization as a federal law? And in this case the answer would be yes. Marriage is a head of power allocated to the central government If the answer was no in a- another example where there was no federal feature, then the inquiry would be over and the determination would be this is a law that only the province can make.

It’s not uncommon to have a determination that both levels of power can make the law. So we’re now at a point where we’ve gone through a classification process. Yes, it could be federal, yes, it could be provincial. And one then asks, is the is one feature dramatically more important than the other?

Can you take into account all of the needs of the country for uniform laws or diverse laws? Is the need for uniformity or diversity so much greater than the other that we can say it ought to be only passed by one? And if we say that the difference of importance is great enough, then we will determine that only one of the lawmakers has the authority to do it.

If the level of importance is roughly the same, then both lawmakers have the authority to do and in that assessment, we’re be- we’re beyond the aid of logic at this point, we’re… it’s a judgment call. The adjudicators have to decide, is the need for a national standard much greater than the benefit we derive from diversity?

Or the other way around, is the benefit we derive from diversity so much greater than the benefit we’d get from a national standard that we ought to allow provinces to deal with this? And if we get to the situation where we’ve decided that no, the the difference of importance isn’t that great and each one can we then have a situation where both levels of government could pass the law, and we have to ask ourselves if there is a conflict is there a conflict here?

And if there’s a conflict, the federal law is going to prevail just the same way as you have in the Amer- in the American Constitution. So that gives you a quick overview of how we approach these things. And as Justice Brown pointed out, we have a problem in the constitutional area when environment is at stake because environment isn’t one of those heads of power.

No, in 1867 the environment was something to be exploited and to be tamed, not to be preserved.

So when you have a situation such as we have in Canada where environment isn’t listed, you have a problem if you are the federal government and you’re dealing with legislation that we have that challenged here. And would it be useful if I outline quickly what part one and part two of the governing legislation did so we have an idea, our listeners have an idea what we’re talking about?

Makes sense to me. So the federal government in 2018 passes the Greenhouse Gas Pollution Pricing Act, and they, It did so- in, in two distinct ways. There’s a part one and there’s a part two. Part one imposed a gas on imposed a charge on consumers of gases that emitted the undesirable CO2 feature.

And it immediately increased the price of gasoline by a significant amount per liter in Canada and a greater amount on a gallon basis. The same for diesel, propane, methane. The end user was paying a- an additional charge. We all- all Canadians got a carbon payment back after a period of time, and it was basically a set amount, and it…

that amount was not a function of how much you spent as a carbon charge accumulator. So whether you drove a Ford 150 and burned a lot of gas, or drove a Toyota Prius and hardly did anything, or rode your bike to work and used no fuel and paid none of these charges, you’d get the same amount. You’d get the same payment back from the government for this charge.

And the thought was you are encouraged to use fewer fuels that emit greenhouse gases. I don’t think it worked. It wasn’t long after the controversy went to the Supreme Court and Justice Brown had to deal with it that the government of Canada revoked that part, but we had to deal with it as a court.

And the next part was a it dealt with large em- large emitters of greenhouse gases, so the oil industry, the cement industry makers of vaccines electricity. There was a charge imposed. There was a a notional limit. If you exceeded that, you were gonna have to pay for it, and you could pay for it either by buying units that those who didn’t breach the limit earned, they could sell them to you, or you simply had to pay for it.

So those were two ways the government of Canada set out to discourage Canadians from engaging in activities that generated greenhouse gas The matter was referred, wasn’t it, to our courts? It was. Do you want to talk about references just so our under- Sure … our listeners understand what a reference is, ’cause it’s not part of Canad- American law generally.

This is one, this is one of the exceptions to the separation of powers in Canada the way it operates, where the executive is the government the judge is judge and the legislatures legislate. In Canada, the attorney general of Canada can refer to the Supreme Court of Canada or a provincial attorney general can refer to the province’s court of appeal a question of law for the court’s opinion.

So that’s what a reference is. Effectively what the court generates looks like a judgment, writes like a judgment and the reference decision from a court of appeal can be appealed like a judgment to the Supreme Court of Canada. But nonetheless, it is a legal opinion. References have been very important in Canadian history.

When Prime Minister Trudeau the elder, Pierre Trudeau back in the early ’90s, sought to to act unilaterally to, as we called it, patriate to to take the British statute that was our constitution and bring it home and patriate it as a Canadian constitution complete with a charter of rights. It was a reference on the constitutionality of d- him doing that unilaterally without provincial support that actually stopped him in his tracks from doing that, and he had to negotiate with the provincial premier.

So references have been brought on, on, on issues of vital national interest. Another one was the secession reference when Quebec puts a s- a, a question to their voters as to whether to separate. T- can it be as opaque as the questions that they had been posing to their voters, or did it need to be clear?

And so bounds were placed by the Supreme Court. Legitimately or illegitimately is a fair question, I think, on, on the types of questions that would… can be put to voters in that way. So the question was put to two courts of appeal, to Saskatchewan and to Alberta Ontario too Oh, and Ontario, that’s right.

There was a reference there on the constitutionality of the federal carbon tax. And Saskatchewan upheld it Alberta struck it down, and I don’t think it got to the Ontario Court of Appeal, did it? It did. Oh, it did? I can’t remember. I think it was four to one to uphold it in- Oh, that’s right.

Hus- Yes … Huscroft dissented. That’s right. Four to one- Yeah … to uphold it in Ontario. Now I remember. I’ve expunged this from my memory bank. Oh, you have no idea. The Court of Appeal of Saskatchewan was three to two- Yeah … to uphold it. And- And so it, it comes up to my gang. And the first… So the Parliament of Canada, through the Attorney General of Canada, relied on the POGG power, the residual peace, order, and good government power.

That has three… been recognized by Supreme Court of Canada jurisprudence over the decades as having three branches. One is, I think, the only branch it was meant to have, which is the gap-filling power. Fill a gap that, that isn’t listed in the enumerated powers of the legislatures or federal parliament.

The second is an emergency power. You might have thought that this would be a, an example for using the emergency power. The thing with the emergency power, though, is after the passage of the emergency, the power goes back. It’s temporal. It’s temporal, right? So if you were, in fact, overruling- Yeah a provincial power in order to do this, when the emergency is over, when our carbon levels are back down, they have to give the power back. Third branch is the branch that they relied upon, the national concern branch, and that is a permanent recognition of federal power. They never have to give it back.

The argument was that this was a national concern because the three criteria for the national concern branch of the POGG power were satisfied. First, this was a matter of sufficient importance that it really is a national concern, and who can argue that this isn’t a national concern? Secondly, it had to have what they called a singularity and an indivisibility.

That actually takes two separate inquiries, none of which have really much to do with singularity or indivisibility, but this is the way the law has grown like topsy. First, it has to be impossible for the provinces to do this. And secondly it has to, Oh, good heavens, I’ve forgotten the second one.

What is it? We- it’s gotta be singular. Yeah. But no, but there’s a s- but there’s two separate inquiries. It’ll come to me. Let’s go back to… and then the third is it you can’t be driving a truck through the division of powers. This has to have the minimal impact on the division of powers.

Let’s go back to that, that first inquiry within singularity and indivisibility. Has to be impossible for the provinces to do this. The court identified as really what this act was all about, something that we call the pith and substance. What is the pith and substance of this? The pith and substance, they said, is the, it is to impose national standards of financial stringency, of the cost, national stringency of the cost of carbon, right?

The cost of pollution National standards of stringency, cost stringency of pollution Well, of course, once you call it national standards, it is by definition impossible for the provinces to do this, and that first branch of the singularity and indivisibility test is automatically satisfied. You’re right, and the second branch of it is the singularity and divisibility itself the court broke down into four different judgments.

The first was the majority written by the Chief Justice by his clerks saying that of course, this passes the test. Climate change is real, it’s a national emergency, but we’re not using the emergency doctrine. And and it bought holus-bolus into the national standard argument.

National standard, that’s what’s needed. And of course, the problem with that is once you decide that a national standard, using language of a national standard brings something into federal jurisdiction, then just about anything can be brought into federal jurisdiction because using national standards begs the question, national standards of what exactly?

National standards of education? That’s a provincial responsibility, but maybe we need national standards on instruction in the second language or instruction on Canadian history. So perhaps Parliament can legislate in that just by calling it a national standard. The… So they bought entirely into that argument.

Justice Cote from Quebec dissented, but on a very specific basis. She said, “I’m fine with all of that.” But she pointed out that the act contained a Henry VIII clause, right? And that’s not a good thing. When you call something af- when you name something after Henry VIII, that’s probably not a good sign.

And Henry VIII clause is a clause that allows the executive, that is cabinet, to actually change legislation without going back to Parliament to obtain that authority. And that’s exactly what this did contain. It contained a Henry VIII clause allowing cabinet to change without going back to Parliament, provisions in the legislation regarding the especially the Part Two, the taxation on specific industries.

It also allowed them to change the consumer tax imposed under Part One, and in fact, that’s how Prime Minister Carney got rid of the consumer carbon tax. He actually didn’t formally repeal it. I know I used that term earlier, but it’s not quite correct. He just signed an order in council, like an executive order ratcheting it down to zero.

The other so that was Justice Côté’s dissent. I agreed with her. I dissented separately, and I said, “This is unconstitutional because you can’t be using this national standard. That, that just, that’s a question begging pith and substance.” But the other reason I said is, the way this scheme works contemplates that the provinces can do this, and the federal tax only kicks in if the level of stringency imposed by the province in its own carbon tax, many of the provinces had imposed carbon taxes, is not high enough to satisfy the federal cabinet And I said, “The mere fact that the legislation contemplates that the provincial governments can operate their own schemes, the provincial legislatures can legislate their own schemes, makes it unconstitutional,” because remember, provincial powers are described in the Constitution as exclusive.
In other words, if the provinces can do this, which nobody doubted that they could under the property and civil rights power, then the f- federal parliament cannot. They’re exclusive, so can’t do it. Justice Rowe agreed with me and agreed with Justice Côté on the f- Henry VIII clause. He wrote separately setting out a history of POGG just to show that it was the product of 150 years of accumulated judicial ad hocery, and I think he enjoyed writing that.

You would’ve enjoyed writing something like that, I think. So that was the decision. Where are we at now? I think the majority frankly, has… I think subsequent events should embarrass the majority because they bought into a slogan. It had to be national, even though about two years later the pr- the federal government said times are tough in Nova Scotia, so no carbon tax on bunker heating oil.”

And it absolutely has to be a carbon tax. There’s nothing else that can be done. And now the federal government has pulled the rug out from under them by supporting carbon sequestration initiatives in Alberta and by, as I say, ratcheting the consumer carbon tax down to zero, so it may not have been all that necessary anyways.

So there we are. So may I ask a clarifying question about the reasoning here? I… If I understood Judge Wakeling correctly as he went through the four steps in the analysis, that at a certain point you might conclude that the matter at hand is plausibly related to powers that are vested in both the pro- province and also in the federal government and that unless you conclude that the, it’s dramatic, that the circumstances are dramatically one that, pushes it in one dire- one direction or the other at that point, how do you decide if both the province and the national government both seem to have a power because Justice Brown indicated that professional…
The provincial powers are, by their nature, exclusive, which means that if they have them at all they are the only ones that have them, which would seem- So do the- … just categorically to eliminate the fourth step in the analysis you described let me take you through what I did with the problem So the first question is, does this challenge law, which is the Greenhouse Gas Pollution Pricing Act, demonstrate a feature that allows us to characterize it as one of the heads of power assigned to the regional governments?

And property and civil rights immediately comes to mind. It’s telling a citizen that they’ve gotta take some of their… decisions they make about how they use their property is gonna have an impact on them under this act. It also regulates property that’s owned by the provincial government.

So there’s all sorts of reasons to say that there’s significant regional interests here. You then have to look at the federal interests, and I said there aren’t any. The federal government did not argue that this was a peacetime emergency, and peacetime emergencies are recognized under the gap power, because one of the powers that the federal government has is to pass laws for the peace, order, and good government of Canada, but only if the power isn’t one that’s assigned to the provinces.

So it’s not like the expansive federal power under the American Constitution. It is a very restricted power. And I said that you, the federal government could not rely on the new head of power it advanced, because when you’re invoking this gap power, you’ve got to identify it. It’s gotta be a head of power that can be understood by the court.

And the federal government lawyers told us, and they told the Supreme Court of Canada, that the new head of power that it was advancing was price stringency for carbon, m- a minimum price stringency for carbon. And I said that is completely indefensible. That does not meet any of the standards that have been developed over time to recognize what can be a gap power.

I said there’s no such thing as a national concern doctrine. It’s a gap power, and that’s all of it, all it is. So in, in my world, the, Government of Canada did not have a head of power that it could rely on. So in, in using the analysis that Professor McConnell and I advanced, I said, “Clearly, provincial interests are engaged here, but no federal interests are, and the inquiry comes to an end.”

We didn’t get to the other questions that were involved, and some of us felt very strongly about what was going on here. And let me just… Indulge me just for a minute. Let me just read to you one of the passages from my judgment, and I don’t know whether I wrote this because as I’m getting older the thing in my brain that requires you to be balanced and judicious is getting damaged.

But here’s what I said, “The Greenhouse Gas Pollution Pricing Act is a massive and unprecedented peacetime, non-emergency invasion of Alberta’s and other provinces’ jurisdiction under the Constitution Act 1867. If the act is a valid law, the constitutional foundation for provincial governments is badly damaged, and their future as an important level of government is in jeopardy.”

I can out-rhetoric you. I had a good one, too. Hang on. “Federalism, as we have known it for over 150 years, is over. Tomorrow, Parliament could pass a law prohibiting Albertans from heating their homes above 16 degrees Celsius, driving gasoline-powered motor vehicles, raising cattle and any other activity that the federal government believes cont- contributes to greenhouse gas emissions and global warning.”

And I wasn’t the only one that was upset enough to speak in bold terms. The, I, I didn’t write for the majority. I concurred, but the majority was equally aghast at what was- Oh, is this Kathy? … equally aghast at what the federal government had tried to do. And one of the reasons why there was significant political opposition to this In 2016 when Prime Minister Trudeau tells Canadians that we’re going to have a new method of fighting climate change, he wasn’t telling us anything we didn’t know.

All of the provinces agreed on these basic facts. The provinces agreed that the climate is changing, that it’s warming. They all agreed that human beings were having some impact on this, and they all agreed we should do something, and they had been doing things. British Columbia was the first, I think, in the early years of 2000s to introduce a charge on carbon.

Alberta had introduced limits on emissions from the oil sands sector. We were investing billions in carbon capture. Ontario stopped using coal to generate electricity, and with a number of years, the greenhouse gas emissions from Ontario dropped by roughly 22%. Quebec had taken steps.

The maritime provinces had taken steps. All of the provinces recognized there was a problem and were doing something about it. In the evidence that I saw, there was no reason to conclude that if the provinces were allowed to carry on with the plans that they had formulated, and when they met all the premiers and the Prime Minister of Canada met early in 2016 in Vancouver and committed to meeting the targets that Canada had taken on with the Paris Agreement, which was by 2030 to have greenhouse gas emissions at 30% less than they were in 2005.

All of the provinces said we can do this, and we have a plan to do it. When that meeting broke up, it was under- it was understood that there was going to be a number of working groups that would take this on. In October, the Prime Minister stands up in the House of Commons and tells Canadians we have a n- new method.

He hasn’t told anybody about it from the provincial side, it would appear. And so the provinces were unhappy. They thought this was a a breach of an agreement that they had and that we were all going to work together. And as I said pretty forcefully, in my judgment- No level of…

No one level of government has the power to, to solve the problem from Canada’s perspective. The federal government needs to act. If we’re gonna deal with this, the province needs to act, and the federal government has a large number of levers they can pull. They regulate industries such as atomic energy, interprovincial transportation airlines.
There’s a lot they can do, but the provinces have a lot to do as well. So in Canada, we had a sense of frustration pr- on the provincial level with the acts of the federal government. And the federal government is now in a position where Part One isn’t there anymore, and in Alberta, it’s understood that there isn’t going to be a emission on greenhouse gases that comes from the the oil and gas sector based simply on federal laws.

There is a provincial law in place now that that deals with that. So those are some of the the hard points in the Canadian debate. I’ll I’ll just I’ll just come back to the point what happens when the province legislating within its own scope of jurisdiction and the federal government within the scope of their own jurisdiction are legislating in- effectively in res- in, in respect of the same activity?

The law is that you try very hard to avoid finding a conflict. The provinces can legislate in respect of a provincial matter, and the federal government can legislate in respect of their provincial matter. Ideally, they’re regulating the same thing, but in two different respects. Let me give you an example.

The salmon come… The salmon, the sockeye salmon migrate to my home lake of Babine Lake in northern British Columbia every year, and I buy from the province a fishing license because the province is responsible for issuing fishing licenses. But the federal government regulates the fishery, and they can shut down they can shut down that fishery.

And they can do so on the basis of a specific jurisdictional grou- jurisdictional listed source of authority over inland fisheries, but also because because of the of the various agreements they have with First Nations, they can also legislate under their authority respecting Indians and lands reserved for Indians, which has been recognized as being a very broad source of authority Where they’re legislating to control an inland fishery to make it impossible to pr- to fish under the authority of my fishing license, then there’s a conflict.

But you can regulate and respective things differently. You can say in fact, we’re going to close the fishery in the month of July, but not the month of August, or we’re going to limit the catch.” Those are things that they can do within the scope of their authority that doesn’t frustrate the provincial scope of authority and the prov- then the issuance of fishing licenses doesn’t frustrate what the federal government is trying to do.

So it’s only when there is effectively an operational conflict between the two that then the doctrine of paramountcy kicks in, and as Tom describes the federal law takes precedence. And as I understand it, the American experience is going to display the same problem. I checked the other day, and I see that United States issued a statement of claim against the California Air Resources Board, seeking a declaration that the California Air Resource Board one and two regulations are not enforced, and that’s because the California Air Resources Board regulations are more onerous from an automakers- makers perspective than the national standards.

So the national standards are out there for fuel efficiency, which is the same thing in some people’s minds as tailpipe emissions. The… California has more onerous standards than the federal standards, and I’m… Correct me if I’m wrong, Professor McConnell, but if there’s a conflict generally the federal standards are going to prevail Same problem would arise in Canada if you had two valid laws that are re- requiring different things of the same person.

That, that’s right. But there is a complication, which is that the Clean Air Act contains a provision which originally allowed California by name, not Kansas, not Iowa, but California to have more stringent air pollution requirements for automobiles. And that existed until it was rescinded just in the last, I don’t know, three or four months.
And so the the federal action you’re referring to is not… I- is really based upon enforcing a change in the law rather than a longstanding division of power between the federal government and and California. Something I’m wondering, by the way, is as I, as we talk here, we those in the audience who have questions please come down to the microphones.

And when we see folks with questions we’ll recognize them. But and in fact, why don’t we go to that instead of the no doubt less interesting question that I was going to put to them? All right. Thank you for the presentation. It was really interesting to listen to. I used to work in parliament for a government MP before I came to law school, so I guess I’m representing the bad guys in the discussion today.

But I was curious to, to get your perspective on the reference question procedure and I guess arguments raised in litigation because I was… I started working in parliament right before, we started, getting rid of, or lessening the tax region by region given political unpopularity.

And I think before we began to, selectively decrease the tax, I think there was a real good faith belief in the need for a national standard and, combating, the policy merits of combating climate change. And then I think as, the prime minister became more and more unpopular in the polls and as we started losing support in the Maritimes especially, I think that’s when, people started thinking you gotta, start…

You gotta get Nova Scotia back on board.” And I guess, I’m thinking about a course of litigation in which, if you were asserting that as a fact, that could probably go to show that, hey, there’s some issues with the government’s national standard argument. And I’m wondering, are there any methods for considering that during a reference question, and are there any ways to bring that up, in litigation after a reference question has been asked?

So you mean a second kick at the can? Yeah. Correct.

I think the Supreme Court would decline to answer it if that were the case. I don’t think they would want to encourage second looks at a reference question. I just think as an institutional response, I… That’s… And they have refused to answer a reference question on one occasion. And I think that this might be another if they were asked to take another kick at the can.

Remember, they didn’t… the law wasn’t the law as pronounced in that reference decision was not that Parliament must do this. It was that Parliament can do this. And Parliament can do something else, right? Parliament, there’s nothing to stop Parliament from trying some other means, carbon sequestration or whatever to, meet its Paris Accord targets.

So I’m not sure what would be achieved by a reference anyways. If a litigant could show that the unequal or selective application of the tax- Yeah … challenged the government’s initial argument- Yeah, there’s no way the majority… Th- there’s no way, at least under this chief justice, the Supreme Court who wrote the judgment, whose clerks wrote the judgment that, there’s no way- Did your clerks only write your dissent? There’s no way that they’re going to, that they’re going to… Sorry? Did your clerks write your dissent?

No. No, but there’s there, there’s different practices at the Supreme Court as to as to what clerks write what. There’s one judge, I think, the clerk should write all of his or her judgments. But, … I think it’s very unlikely that the court will invite a second hearing at which it can be shown to have been bamboozled the first time.
I noticed that- Yeah … the Supreme Court rests in its reference Re Impact Assessment Act. Yeah. I wouldn’t say this is full retreat, but they’re moving quickly backwards. And in my judgments I had said “Ottawa can’t tell Albertans you can’t keep your house at a temperature above 16 degrees.”

I noticed in the Impact Assessment case, there was a specific provision, I think it was maybe paragraph 189, that said, “Don’t interpret Greenhouse Gas Pollution Pricing Act as anything other than a disposition of the very issue before us, dealing with carbon pricing on a very narrow ground. We’re not saying you can tell Albertans you gotta wear a sweater in your house.”

So we’re seeing some movement- Yeah … in Ottawa from the Supreme Court. I think I think what… A- and I’m not giving away deliberation because we were just ships passing in the night, we never talked about it. But I think what the chief justice tried to do, and bear in mind, he’s from Quebec, so he is very sensitive to provincial areas of jurisdiction.

But this was different. This was the environment and there was a political vibe in the court around that. I think what he tried to do was gerrymander the POG test to let this horse out of the barn, but then nail it shut behind him. And so I wasn’t surprised that he went the way he did in the impact assessment case.

If that was the logic, I’m just hoping that the horse is from Sable Island, because then- Then it would have federal jurisdiction. Yeah. Yeah. So we have a question over here. Yeah. Yeah. Hello. Thank you very much for your presentation. I had to make it here today. I was a Canadian intern in the parliament there in ’84.

And so- Big year … yeah, it was quite a year. We talked a little bit about Brian Mulroney. Yeah. And I saw firsthand some of the activity and the question period, how it worked. In Bob Dolan’s office, we were discussing issues between Quebec and Ontario regarding strawberry packaging sizes. It got really nitty, kinda gritty.
What I don’t hear you saying is this this partisanship. I don’t hear a lot of conservative versus liberal. When I was there, there wasn’t any of that. So it took a while to get used to just what was different about the culture. I adj- initially thought maybe it was the size of population.

Then I thought maybe it was a low trust, high trust society. Couldn’t quite figure it out, still don’t. I wanted to know, in terms of Brian Mulroney and acid rain, we talked a little bit- Yeah … what was going through… That was a lightning issue. And they seemed to have resolved some of that, and it wasn’t done with a lot of brutality or pushing or shoving that I saw.

This tension between federalism was exhibiting itself. I- See the… I can taste the, a little bit of the Albertan flavor coming through. The NDP in British Columbia, for example, was a political party that had very definite, distinct ideas. They would start to chirp a little bit, but it was more confined, and it wasn’t really a rancor that I see here.

So it was also a treaty, right? And because it’s a treaty, that- What is it? The acid rain treaty. It’s a treaty, and because it’s a treaty, it was an exercise by the federal parliament of… or by the federal executive of the royal prerogative power of treaty-making, which still vests with the federal cabinet.

So it never really was a federalism issue Yeah. There’s still some royal prerogatives kicking around that matter And so the, can the prime minister enter into a treaty and make it a federal matter and if the treaty is about a provincial matter? He can, but then if it requires provincial legislation to, to give it effect, then they have to persuade the provinces to do nAFTA was a good example of that. There re- there was a lot of provincial legislation that followed it, but by and large everyone just went with it. And with the Acid Rain Treaty, had there been, had the Queen’s Park the Ontario legislature or the National Assembly in Quebec needed to legislate, they probably very much… they would’ve been anxious to do so.