Juno News - Liberals defend “plastics ban” in federal court

00:00:00.000 But I first want to talk about something that should be able to unite us all, which is our

00:00:12.880 hatred of dissolving paper straws. I know the plastics ban is something that the federal court

00:00:19.380 ruled was unconstitutional, but the liberal government is still defending it. And in fact,

00:00:24.220 this very week, the liberals are defending it in the federal court of appeal. Intervening on the

00:00:30.980 anti-ban side of the equation is Christine Van Gein's group, the Canadian Constitution Foundation,

00:00:37.200 where she is the litigation director, and she joins us now. Christine, always good to talk to you. 0.64

00:00:41.980 Thanks for coming on today. Thanks for having me on, Andrew. No, I mean, I'm just against like the

00:00:47.240 ban on principle because I despise the stupid paper straws. You're actually taking an argument that is 1.00

00:00:52.140 far more rooted in the Constitution than just, you know, your honor, the paper straws are crap. So 0.99

00:00:56.660 what's the argument here? Yeah, I mean, so the case is about plastics. It's about this federal

00:01:01.740 plastics ban. You know, as an organization, I don't feel especially strongly about the issue.

00:01:07.620 I mean, I like sea turtles. I don't like paper straws. But what bothered me about this federal

00:01:15.300 plastics ban isn't just that it isn't really the paper straws. It's a much bigger issue.

00:01:21.260 It's that the federal government, the Trudeau government seems obsessed with trying to over

00:01:26.500 regulate the lives of Canadians by meddling in provinces businesses, contrary to our

00:01:31.780 constitutional division of powers. And we've seen this happen before. I mean, the Impact Assessment Act

00:01:37.900 was reference was all about this. But basically, what happened in this case was the federal cabinet by

00:01:45.780 way of regulation. So there was no debate in Parliament about this. They deemed every single

00:01:51.020 plastic product from safety helmets for construction site workers to, you know, life jackets to pipes

00:02:00.180 to plastic straws and store sticks. Every single one of them has been deemed toxic under the federal,

00:02:08.220 under a federal cabinet order. And I think a lot of Canadians would be surprised to learn that this was

00:02:13.660 done through Parliament's power to regulate the criminal law. So they signed this order claiming

00:02:19.900 that this is under their criminal law authority. The problem is, that is not how the federal criminal

00:02:25.260 law authority works. You don't just say something is under criminal law, under federal criminal law power, and

00:02:31.820 suddenly that is like an incantation and you say those words and it makes it so. It's not like bibbidi-bobbidi-plastic man.

00:02:39.660 It doesn't make saying it doesn't make it so. So they actually need to show that it would be an actually dangerous substance,

00:02:48.820 which of course plastics, which are ubiquitous in our society, are not. There are varying levels of potential harm and potential safety. So it was overly broad.

00:03:02.980 I spoke about this a few weeks back with a plastics expert who, he was approaching this from the science perspective,

00:03:09.940 which is that calling plastics toxic is in and of itself incredibly wrong. And he, you know,

00:03:15.700 had a litany of evidence and research and studies he showed. The reality is we wrap medical products in plastic,

00:03:22.900 we make medical products out of plastic, we eat and drink with plastic and out of plastic. So if this was all toxic,

00:03:29.860 that is probably going to spell a much greater problem here. I'm curious in this case, how much

00:03:34.820 of that argument is relevant? Or is this strictly an up and down constitutional question of, is this

00:03:40.180 a criminal matter? No. So that was a big part of it. It's just not what our particular interest is.

00:03:45.220 Yeah, you're an intervener in the case, just for context. You're not the litigant.

00:03:50.260 So the first day of the hearing, the federal government spent a lot of time describing the

00:03:55.060 potential harms from plastics. And there were some environmental regulators like animal justice

00:04:01.460 and eco justice who talked about the, you know, hypotheticals about animals, or frankly,

00:04:08.740 they're not hypotheticals, the, you know, the ring carriers that can harm birds and things like that.

00:04:13.940 The problem is to, it's this wildly expansive argument to say that every single plastic item

00:04:22.900 has the same level of potential danger, and therefore they are all toxic. I mean,

00:04:29.940 the council for the plastics coalition who brought this challenge, she talked about how, you know,

00:04:35.860 she wears contact lenses, and these are quite different in nature from a plastic straw. And with

00:04:41.940 the government, if they want to regulate some specific harm, for example, this, this, this issue

00:04:48.660 that people are always bringing up of the plastic straws being stuck in sea turtles noses, that it's,

00:04:56.100 it's actually more about the shape and the, the, the way the plastic straws are disposed of than it is

00:05:03.540 about the fact that they're made of plastic.

00:05:04.660 Yeah, like a metal straw that would be reusable that, you know, got lodged in a sea turtle, I imagine,

00:05:10.580 would be just as bad, if not worse.

00:05:11.380 Exactly. Yeah. So, I mean, what they need to do is actually show that there is potential harm.

00:05:18.260 There's some level of harm that could justify putting plastics as an entire category of items

00:05:27.060 onto the list of toxic substances. And we argued, we argued that it's just wildly expansive, that you

00:05:34.100 can't just say something is harmful, you need to, you need to actually have some evidence that it's

00:05:41.300 harmful, and that this expansive approach is inappropriate, and it's an abuse of the federal

00:05:46.660 government's criminal law power.

00:05:48.820 Do you, I remember with the carbon tax case that you were involved in with another organization,

00:05:54.340 the, you had some interveners that were really trying to push the emergency angle, say,

00:05:58.900 the federal government can act on climate policy because it's an emergency. Are we hearing any of

00:06:03.380 that on the plastics case?

00:06:04.580 No, that, it wasn't on, on those grounds.

00:06:07.700 I was, I mean, it was, but that, but that problem is a lot of environmental policy

00:06:11.140 it tends to be, you know, just defended on, I think some, some grounds that are just absolutely

00:06:15.940 absurd. And here you have a government that's just being very ideological about it. And

00:06:19.700 as you know, they're just trying to will this constitutional basis and authority into reality

00:06:25.060 when there doesn't seem to be a basis for it.

00:06:27.380 Yeah. I think what we need to think about is when the framers of our original constitution in the 1860s

00:06:34.340 decided that they were going to give federal, the federal government and not the provinces

00:06:39.140 control of criminal law, it was premised on the idea that parliament would be using

00:06:44.740 that authority to prevent actual harm, not just meddling in, in the day-to-day lives of Canadians.

00:06:52.340 And when the government overreaches like this, when the federal government overreaches like this,

00:06:56.580 they are, um, what it's referred, what lawyers call ultra vera as it's outside of the scope of

00:07:02.580 their authority. And that makes it the, the use of the power in this way unconstitutional.

00:07:07.060 That's why the lower court struck down this plastics ban as unconstitutional. It was,

00:07:15.060 there was not evidence that these products are harmful, uh, as an entire category and while,

00:07:22.180 while, why there is a stay in place. So, um, I think that we need to think about the broader

00:07:29.860 problems, the bigger threat of allowing the federal government to overreach this way, because

00:07:36.020 Canadian federalism is, it's a genius, brilliant innovation. It's, it prevents the concentration

00:07:43.780 of power within any single institution or level of government. And it creates these sort of

00:07:48.180 laboratories of democracy across Canada where different jurisdictions can tailor different

00:07:53.540 policy solutions and figure out what works best. And waste management has been under the scope of

00:07:59.140 authority of provincial and municipal jurisdictions. And some provinces, some municipalities have decided

00:08:05.780 to take one approach to plastics regulation or plastic recycling or waste management. And other

00:08:12.180 provinces have taken different approaches. It's not for the federal government to come in then and use

00:08:18.580 a sweeping authority to claim their ability to regulate every single type of plastic imaginable under the

00:08:27.140 um, claim that it's a criminal law issue. I'm always curious in why people advocate against their own

00:08:34.340 self-interest and their own autonomy. And in this, I'm looking at British Columbia, which as a province

00:08:40.660 has said, regardless of what happens with this case, they're going to continue to regulate things at the

00:08:44.820 provincial level. They've got the right to do that. Yet they're in this case defending Ottawa's right. Like,

00:08:50.100 why are they as a province not seeing the concerns with this? Imagine if perhaps a conservative government that is more

00:08:55.780 hostile to the agenda of the BC NDP government comes in and wants to trample into jurisdiction in a

00:09:01.060 different direction. I mean, sometimes people intervene or make arguments on an outcome-based

00:09:08.500 approach. They just like a particular outcome. It's really difficult to take a position like we do at the

00:09:14.420 Canadian Constitution Foundation, where you need to think about the big picture and not just your immediate

00:09:21.300 self-interest. So yes, British Columbia typically sides with, um, more stringent environmental regulations.

00:09:29.540 So if they're looking at it at an outcome-based, um, approach, then that's why they would argue this,

00:09:36.180 but it isn't looking at the big picture. And I think if you think about this issue from the big picture

00:09:42.420 perspective, there's all kinds of things that the federal government may use to or will try to claim

00:09:49.620 are under the federal criminal law power in order to, you know, sweep in their ability to regulate.

00:09:55.140 So it's widely assumed that Canada is going to uphold oil and gas emissions caps and the clean

00:10:01.140 electricity regulation, uh, which are both currently in draft form, um, through the, uh, criminal law power

00:10:08.660 under the Canadian Environmental Protection Act. Um, there's concern that the federal government

00:10:13.460 would try to regulate things like the electricity market or technology options using the criminal law

00:10:20.420 power. And Ottawa would essentially in, in this regard become master of all environmental policy

00:10:26.740 in our country. And when you think about it in a big picture like that, that may not be in British

00:10:32.900 Columbia's best interest, even though siding with the federal government in this particular case,

00:10:38.580 uh, may get them the outcome that they prefer. Well, we'll certainly keep an eye out for this.

00:10:44.100 I know the wheels of justice, uh, tend to move quite slowly. Do you anticipate when a decision

00:10:49.460 will be made keeping in mind that, you know, could very well go to the Supreme Court beyond that?

00:10:53.300 Yeah. So typically we say in appeals, we, we expect a decision within six months. Sometimes it's sooner,

00:11:01.540 sometimes it's longer. So, uh, that's the only guidance I can give you.

00:11:05.380 Yeah. It'll come when it comes is basically the, uh, the, the less polished answer there. Uh,

00:11:10.900 uh, Christine Van Gein, litigation director for the Canadian Constitution Foundation. Keep up the

00:11:15.220 great work and thanks for coming on today. Always a pleasure, Andrew. Thanks for listening to the

00:11:19.860 Andrew Lawton Show. Support the program by donating to True North at www.tnc.news.

Juno News - June 29, 2024

Liberals defend “plastics ban” in federal court

Episode Stats

Summary

Transcript