In the second day of day two of the Supreme Court of Canada's hearing on the federal government's challenge to Ontario's carbon pricing plan, a number of justices of the Court of Appeal had some spirited questions for Justice Mcpherson.
00:00:00.000I'm outside Osgoode Hall in downtown Toronto just after day two of the carbon tax court reference taking place wherein the Ontario government challenging the constitutionality of the federal government's Greenhouse Gas Pollution Pricing Act.
00:00:23.840This was the day where the federal government ultimately put forward its defence against the challenges that were put forward on day one, Monday, by Ontario's lawyer.
00:00:33.920And what was interesting is it was a far more spirited exchange than Monday's in many respects with several questions put by a number of the justices on the Court of Appeal dais basically asking for an answer to the question of where the limitation of the federal government's power is likely to be if the federal government's argument is accepted.
00:00:54.920We're trying to pin you down on what the matter of this is.
00:00:58.860If it is reduction of greenhouse gases, if that's what the purpose of this is, that suggests a much wider lawmaking authority than simply establishing a pricing regime.
00:01:10.600And that's what we heard from your friends yesterday.
00:01:12.940And you haven't, for my satisfaction at least, dealt with that problem.
00:01:16.220I don't know where this begins and ends in terms of, if this act is constitutional and it's upheld on the basis that the subject matter is a national concern, POGG matter, of reducing greenhouse gases, I'm not sure how much further you can go.
00:01:33.060But I do suggest to you, and I've tried to suggest this this morning, if this only addresses a quarter of the greenhouse gas problem, you're going to want to do more federally.
00:01:42.800And so I want to know where that begins and ends in terms of your jurisdiction to do that federally.
00:01:46.920Your friend says it extends rights to whether or not homeowners can have wood-burning fireplaces.
00:01:53.460Do you say yes or are they wrong in that?
00:01:56.560Well, we think in the abstract, that would be beyond federal reach under the POG power.
00:02:05.380But again, the limits come from the case-by-case analysis and from the application of the PIF and substance doctors, from the rigor of the national concern test, and from the evidence that's required to demonstrate that it is substantive, directed towards addressing that national concern at a national level.
00:02:32.500Well, the dividing line is that that legislation must be addressing the national aspects of the problem.
00:02:43.040Now, as you can see there in that clip, we don't necessarily have a clear answer, or at least not an answer that the justice is accepting as meeting the threshold he thinks needs to be set by this.
00:02:55.580And I want to play another clip for you as well that speaks to, again, that spirited nature of today's proceedings.
00:03:01.080This is Justice McPherson asking why pricing, in the eyes of the federal government, is the be-all and end-all for reducing greenhouse gas emissions.
00:03:10.160But over a 14-year period, Ontario emissions are down 22 percent.
00:03:17.620Ontario has definitely achieved reductions, and largely through the closure of coal-fired emissions.
00:03:24.560We don't care how they achieve it, we don't care how they achieve it.
00:03:27.220They've achieved reductions of 22 percent.