Day three of the Ontario government's constitutional reference of the federal carbon tax just wrapped up at Osgoode Hall, meaning this chapter of the legal saga has almost come to an end. Now, part of what happened Wednesday in this court was a series of intervenors, third party groups that aren't directly parties to this litigation, were speaking up about what their organisations feel are the critical issues here. And there was a wide range of voices from the Assembly of First Nations to the Canadian Taxpayers Federation to the United Conservative Party.
00:00:00.000Day three of the Ontario government's constitutional reference of the federal
00:00:13.560carbon tax just wrapped up at Osgoode Hall meaning this chapter of the legal
00:00:18.120saga has almost come to an end now part of what happened Wednesday in this court
00:00:23.280was a series of intervenors third-party groups that aren't directly parties to
00:00:27.480this litigation were speaking up about what their organizations feel are the
00:00:32.160critical issues here and there was a wide range of voices from the Assembly of
00:00:36.780First Nations to the Canadian Taxpayers Federation to the United Conservative
00:00:40.920Party which between the time it filed its factum and the time it argued it had
00:00:45.000actually won a majority government in the Alberta election what was fascinating
00:00:49.740about the interventions though is that some of them were actually putting
00:00:53.280forth arguments that even the federal government wasn't putting forward to
00:00:56.880defend its position namely that carbon taxing is actually something that
00:01:02.340addresses a critical national emergency in Canada this idea was advanced by a few
00:01:07.980intervenors most notably the David Suzuki foundation and the intergenerational
00:01:12.780climate coalition both said that carbon pricing and specifically the federal
00:01:18.180government's greenhouse gas pollution pricing scheme could indeed qualify as
00:01:23.040as being able to subvert the division of powers in the Constitution because it
00:01:27.700addresses climate change which they say is a national emergency and the
00:01:31.860Constitution says that Parliament can when responding to a quote grave emergency
00:01:37.020unquote deal with legislation that doesn't respect the traditional and
00:01:41.400constitutional boundaries between what the federal government is
00:01:44.520responsible for doing and what the provincial government is responsible for doing but in
00:01:49.040actuality with how much alarmism was put forward by both these organizations it's a wonder we even
00:01:53.600survived to the end of the day the intergenerational climate coalition lawyer actually was invoking
00:02:00.440Helen Lovejoy from the Simpsons when he told people I am asking the court to think about the
00:02:05.240issue and the Suzuki foundation's argument was not much better they eased into it by basically saying we're all going to die unless we deal with this fight now that's my paraphrase but I'm not really changing all that much about the substance of what was argued but here's the hitch in this the federal government never actually brought up emergency provisions when it was putting forward this legislation similarly when the federal government was laying its argument out to the
00:02:35.220court of appeal it never talked about emergency powers it was only after the David Suzuki foundation in its intervention filing said we think there's a case to be made for emergency powers here that the federal government issued another document what's called a reply factum saying that if the court finds that yes in fact there is an emergency here we will argue those grounds instead so the federal government basically says this isn't our primary argument but you know what if it's a way that gets us to the finish line we'll take it
00:03:05.200we'll embrace it there was a little bit of pushback on that from one of the judges in particular Justice McPherson who said you know I'm not convinced the interveners can argue this provision when it isn't even part of the federal government's argument although one of the interveners actually pushed back against that and said well actually you're allowed to take into account any arguments wherever the source of them is but it showed how much of a hyper reaction there is from a lot of the environmental groups in Canada where they believe that the government should be able to do
00:03:35.180anything and anything and everything even if it means that there is not a traditional respect for the way the Constitution is supposed to work and I have to truly invoke the words of the lawyer for the Attorney General of Saskatchewan who I think very aptly said
00:03:51.180The line between policy and politics is pretty blurry and that it would be possible for the federal government to use its taxing power to apply taxes in some provinces but not others for purely political reasons and it can't escape notice that in this case the carbon tax only applies in four provinces with conservative governments as I said in the Saskatchewan Court of Appeal with respect to this point you need to slam the door on that Pandora's box first
00:04:21.160is a place of purpose but it doesn't happen to go forever
00:04:22.640obviously Canada's concern is that this act is required because without the legislation provinces can opt out of any national plan to address climate change and that will undermine the efforts of others in my submission there's a one word response to that argument and it's federalism
00:04:42.160federalism. We live in a federal state where both the federal and provincial governments
00:04:47.660have jurisdiction over pollution, including greenhouse gas emissions within their respective
00:04:53.980powers. The POG power is not a big stick that can be used by the federal government to force
00:05:01.100provinces to adopt particular policies or to adopt uniform standards with respect to
00:05:07.560matters within provincial jurisdiction, no matter how important the issue is. Justices,
00:05:14.100it's my submission that you don't need to throw out the constitution in this case in order
00:05:19.080to save the planet. I would argue that Justin Trudeau and his government and their lawyers
00:05:24.480need to pay very close attention to that. The trial is almost over. The coverage continues.