Mar. 25, 2021

Very sad day for Canada as a federation – a major federal power grab

“A new, distinctly hierarchical and supervisory model of Canadian federalism – ” Supreme Justice Brown 

The Top Court of Canada has ruled six to three that the Federal Government’s imposition of a carbon tax is constitutional. And it even says it is not a tax. In its summary of the case the Court describes it is a regulatory charge. 

This is ground-breaking stuff and tilts the balance of power in the federation decidedly in the Federal Government’s favour. This is primarily because the six judges have used the “rarely used” provision of the Constitution known as the “peace, order and good government” clause to justify the constitutionality of the Federal Government’s action. 

Here is the section of the constitution on Peace Order and good Government:

“It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, 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;”

But as Judge Brown says in his dissenting opinion:

“The Attorney General of Canada urges us to find that the Act represents a constitutionally valid exercise by Parliament not of the powers it clearly has to address climate change, but of its residual authority to legislate with respect to matters of “national concern” under POGG (Peace Order, and Good Government). 

The significance of this cannot be overstated. This power – unlike Parliament’s authority to legislate in the face of national emergencies – permanently vests exclusive jurisdiction in Parliament over the matter said to be of national concern.  

Were this simply the straightforward matter, as the Attorney General of Canada says, of requiring polluters to “pay”, the consequences for the division of powers would be minor. 

But neither the Attorney General nor the majority fairly or completely describes what the Act does. 

In particular, they downplay significantly what the Act actually authorizes the Governor in Council – that is, the federal Cabinet – to do, and ignore the detailed regulatory intrusion into matters of provincial jurisdiction authorized by Part 2 of the Act. 

The result is a permanent and significant expansion of federal power at the expense of provincial legislative authority – unsanctioned by our Constitution, and indeed, as I will explain, expressly precluded by it.’ 

Judge Brown goes on at length to prove this point.  

And then he says this: 

364] Finally, I note that, in advancing an expansive national concern doctrine so as to augment federal power, both the Attorney General of Canada and the majority rush past s. 94 of the Constitution Act, 1867, which provides that “the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights”. As that section makes clear, the Constitution already contemplates that Parliament might wish to enact uniform laws related to property and civil rights in the provinces, as it does by the Act. But s. 94 also imposes certain constraints: it does not apply to Quebec and, in the provinces where it does apply, it requires the consent of the provincial legislatures.

[365] In other words, in bypassing s. 94 so as to embrace their centralized vision of Canadian federalism, both the Attorney General of Canada and the majority would (1) strip Quebec of its protection from federally-imposed uniformity of laws relative to property and civil rights, and  

(2) write out of the Constitution the requirement for provincial consent elsewhere. This 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” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 36‑37). As the Privy Council recognized more generally in Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348, at p. 361, s. 94 “would be idle and abortive, if it were held that the Parliament of Canada derives jurisdiction from the introductory provisions of s. 91, to deal with any matter which is in substance local or provincial, and does not truly affect the interest of the Dominion as a whole.

(366] It is no simple matter to tinker with the Constitution. This is why that task is left by the amending formula to legislatures, who can deliberate upon the complexities in depth, and not to courts which lack the necessary institutional competencies to navigate those complexities – as here, where, by engorging federal power as it does under the residual POGG power, the majority not only risks doing violence to s. 92 (and, for that matter, to s. 92A), but also trips over s. 94. 

Again Judge Brown is succinct  

(386]  “In sum, the reduction of GHG emissions as a matter of national concern fails to meet the requirements of singleness and indivisibility. Like the containment and reduction of inflation, the reduction of GHG emissions is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is totally lacking in specificity. It is so pervasive that it knows no bounds. Its recognition as a federal head of power would render most provin­cial powers nugatory. 

(Anti‑Inflation, at p. 458)

(c) Scale of Impact

[387] Even were the reduction of GHG emissions a single and indivisible area of jurisdiction, its impact on provincial jurisdiction would be of a scale that is completely irreconcilable with the division of powers.

Judge Brown’s conclusion must be recorded: 

VI. Conclusion

(454] “The Act’s subject matter falls squarely within provincial jurisdiction. It cannot be supported by any source of federal legislative authority, and it is therefore ultra vires Parliament. This Court, a self‑proclaimed “guardian of the constitution” should condemn, not endorse, the Attorney General of Canada’s leveraging of the importance of climate change –and the relative popularity of Parliament’s chosen policy response – to fundamentally alter the division of powers analysis under ss. 91 and 92 of the Constitution Act, 1867  and, ultimately, the division of powers itself (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155).

(455] The majority’s reasons for judgment are momentous, and their implications should be fully and soberly comprehended. This Court once maintained that the Constitution, underpinned as it is by the principle of federalism, “demands respect for the constitutional division of powers” (2011 Securities Reference, at para. 61; see also Reference re Secession of Quebec, at paras. 56 and 58). 

But in its unfortunate judgment, the majority discards that constitutionally faithful principle for a new, distinctly hierarchical and supervisory model of Canadian federalism, with two defining characteristics: (1) the subjection of provincial legislative authority to Parliament’s overriding authority to establish “national standards” of how such authority may be exercised; and (2) the replacement of the constitutionally mandated division of powers with a judicially struck balance of power, which balance must account for other “interests”.

(456] No province, and not even Parliament itself, ever agreed to – or even contemplated –either of these features. 

This is a model of federalism that rejects our Constitution and rewrites the rules of Confederation. 

Its implications go far beyond the Act, opening the door to federal intrusion, by way of the imposition of national standards, into all areas of provincial jurisdiction, including intra‑provincial trade and commerce, health, and the management of natural resources. 

It is bound to lead to serious tension in the federation. And all for no good reason, since Parliament could have achieved its goals in constitutionally valid ways. I dissent.’”

Judge Rowe also has big problems with the majority view. He states  

[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., [1988] 1 S.C.R. 401, and the cases that preceded it. 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 Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186 (“Act ”).


[462] “The principle of federalism pursues some well‑known objectives: “to reconcile unity with diversity, promote democratic participation by reserving meaningful powers to the local or regional level and to foster co‑operation among governments and legislatures for the common good” (Canadian Western Bank, at para. 22)”. 

The distribution of powers, in turn, was not random; rather, it was designed to achieve these objectives. It accommodates diversity between provinces — by allocating considerable powers to provincial legislatures to allow them pursue their own interests — and their desire for unity — by granting powers to Parliament when they share a common interest (Secession Reference, at paras. 58‑59; Reference re GNDA, at para. 21). The federal structure protects the separate identities of the provinces from being subsumed under a unitary state.

463] 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 (Secession Reference, at para. 37; see also Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326 (P.C.) (“Labour Conventions”), at pp. 351‑53). In other words, “without federalism, Canada could not have formed or endured” (Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, at para. 240, per Brown and Rowe JJ., dissenting). Consequently, courts interpreting the division of powers must be careful not “to dim or to whittle down” the provisions of the Constitution Act, 1867, and its underlying values, or “impose a new and different contract upon the federating bodies” through an exercise of interpretation (In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.) (“Aeronautics Reference”), at p. 70).

466] Thus, federalism recognizes that “there may be different and equally legitimate majorities in different provinces and territories and at the federal level” (Secession Reference, at para. 66).” 

And then he really hits head on using the Peace Order and Good Government provision in this case: 

482] Thus, focusing on “peace, order, and good government” is “unproductive”, because it provides little assistance in drawing the line between provincial and federal areas of competence. 

In addition, it “tends to draw attention away from the central question pointed to by the introductory clause, namely, whether the matter to which an enactment relates is one ‘not coming within’ the classes of subjects assigned exclusively to provincial legislatures” (Lysyk, at p. 534; see also J. Leclair, “The Elusive Quest for the Quintessential ‘National Interest’” (2005), 38 U.B.C. L. Rev. 353, at pp. 358‑59). 

And Rowe’s conclusion: 

[616] “A patient and careful examination of the doctrine reveals that POGG should be, and was always intended to be, a residual and circumscribed power of last resort that preserves the exhaustiveness of the division of powers. It is only available where no enumerated head of power, or combination of enumerated heads of power, is available. 

The approach of the Attorney General of Canada reflects a troubling misinterpretation of and departure from Crown Zellerbach and the doctrine that preceded it. 

For these reasons, and those of Justice Brown which I adopt, the Greenhouse Gas Pollution Pricing Act  is ultra vires in whole and the reference questions are answered in the affirmative. Accordingly, I would allow the appeals of the Attorney General of Saskatchewan and the Attorney General of Ontario and I would dismiss the appeal of the Attorney General of British Columbia.’

I would urge interested readers to read the whole court decision. This is a momentous decision changing forever the nature of our country ? If Premieres Levesque, Lougheed, Blakey, Lyon, and MacLean were around this would be challenged, causing a constitutional conference to be held.