GGPPA is constitutional: Andrew Bernstein discusses carbon tax ruling with media

April 07, 2021

The Supreme Court of Canada has ruled the federal Greenhouse Gas Pollution Pricing Act is constitutional after released its decision in late March.

The SCC found that parliament did in fact have the constitutional authority to enact the GGPPA.

Before the SCC’s ruling was released, appellate partner Andrew Bernstein spoke with Reuters­whose story was published through the BOE Report—on the issue, saying “[m]ost court watchers are expecting the Supreme Court to uphold the legality of the carbon pricing plan.” And he was right.

Justice Wagner wrote the matter was one of “national concern”, leaving Parliament to take control of issues that might otherwise fall under provincial jurisdiction.

READ: Our litigation and environmental lawyers wrote an analysis on the SCC’s decision.

Speaking to Canadian Lawyer after the decision, Andrew said the decision confirmed what was already thought: things that cross provincial borders are often going to be a matter of federal jurisdiction.

“It affirms things like the environment: it’s certainly something the federal government will in many instances be able to weigh into. But when we’re talking about matters of systematic risk [such as the harm caused by climate change], that’s the kind of thing we can expect the federal government to be weighing into,” Andrew said.

Andrew also commented on Justice Côté’s part dissent to the decision. While agreeing with the majority that the GGPPA was a matter of national concern, Canadian Lawyer said she took issue with how the legislation was drafted. See below a small excerpt from the Canadian Lawyer article.

“In my view, the GGPPA, as presently drafted, cannot be said to accord with the matter of national concern properly formulated by the Chief Justice because the breadth of the discretion conferred by the Act on the Governor in Council results in the absence of any meaningful limits on the power of the executive,” Justice Côté wrote.

“Additionally, the provisions in the GGPPA  that permit the Governor in Council to amend and override the GGPPA itself violate the Constitution Act, 1867, and the fundamental constitutional principles of parliamentary sovereignty, rule of law, and the separation of powers,” she said.

Andrew said Justice Côté’s issue was with “a structural feature of the legislation which had to do with amount of discretion invested in the Cabinet.”

He also said of interest in her dissent was the mention of Henry VIII clause in the bill, named because, as Andrew said, “it delegated to King Henry VIII the ability to make proclamations that had the same legal force as acts of Parliament.” These clauses are incompatible with the conception of parliamentary sovereignty, the article reads. Justice Côté found “the breadth of the discretion conferred by the Act on the Governor in Council results in the absence of any meaningful limits on the power of the executive.”

Andrew questioned how broadly Parliament is permitted to delegate those powers.

“That’s the subject of Côté’s dissent,” he said.

“It has little to do with the heart of the federalism question, [but] it’s a feast for constitutional lawyers interested in the relationship between the executive and legislative branches of government.”

Andrew and his colleagues will be discussing the Supreme Court’s carbon tax ruling in depth at the next Breakfast With Appeal webinar on May 12. You can register to attend that session here.

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