Saskatchewan sides with Ontario against the federal carbon tax
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Summary
In this episode, we speak with the Attorney General of Saskatchewan, Mitch McAdam, who served as an intervener in the Ontario reference to the Supreme Court of Canada in the case of the Carbon Tax Case. We discuss the federal government's argument that the carbon tax should be recognized as a new power under the Constitution.
Transcript
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Outside Osgoode Hall in Toronto, I'm joined by Mitch McAdam, the lawyer representing the
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Attorney General of Saskatchewan, which was an intervener in the Carbon Tax Court reference.
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Thanks very much for your time. You're welcome. So let's talk about Saskatchewan's role here,
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because I know that your province had its own constitutional challenge not too long ago,
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but here you are intervening in Ontario's. Are the arguments dissimilar or even identical
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in these two cases? We intervened in the Ontario reference to support the position of the Government
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of Ontario that the legislation is unconstitutional. As you said, we had our own reference in Saskatchewan
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a couple of months ago and we made very similar arguments in the court yesterday as we made in
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the Saskatchewan case. One of the big themes that really was emerging from Saskatchewan,
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from Ontario, from New Brunswick, was this idea of encroachment or a scope creep as one of your
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friends from New Brunswick called it. And I'm wondering if you could speak to what the issue
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is here, because I think there's a concern that we heard in court that if the federal government's
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argument is accepted here, it could really open the floodgates to other overreach of federal powers.
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And I'm wondering what the concern with that is. I think to describe the concern in a nutshell,
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what the federal government has asked for in this case is basically the recognition
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of a new power under the Constitution. That's why they're relying on the peace order and good
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government power. And under the tests that the court has laid down for the use of that power,
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they have to show that the matter is distinct from matters within provincial jurisdiction,
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and that recognizing that power wouldn't upset the balance of the Federation.
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I think one of the main themes of this hearing was, where do you draw the line? What limits are there
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to the federal power that's being requested in this case? I think a number of the judges asked questions
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about that. And our concern certainly is, if you recognize the power to regulate greenhouse gas emissions,
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it potentially gives the federal government the power to regulate everything.
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Yes. And the hypothetical we heard continually represented here was that of banning wood stoves
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or reducing home heating temperatures. And the federal government's position, as put forward
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by its lawyer on this, really seemed to be that these are just hypotheticals that are apocalyptic or
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doomsday scenarios. And basically that federal legislation in the future, if its arguments are accepted now,
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could be self-limiting. And I'm wondering what you think of that?
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I don't agree with her on that point. The jurisdiction that the federal government is
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looking to have recognized in this case is the power to regulate greenhouse gas emissions,
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or as they re-characterized it in the Saskatchewan reference, the cumulative dimensions of greenhouse
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gas emissions. As Mr. Hunter said from Ontario, really whether you call it greenhouse gas emissions
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or the cumulative impacts doesn't mean anything different, because every individual emission
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is part of the cumulative emissions. So we see this new power that they're asking to have recognized
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as potentially giving them the jurisdiction to do things exactly what you said, to regulate fireplaces.
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And I know it was mentioned in Saskatchewan's submission, but I want to reiterate because
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there are a lot of naysayers here. This was not about disputing climate change or greenhouse gas
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emissions. It's really about who gets the right to determine the best course of action in a province on
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these issues. Yeah, from our perspective, it was very much a case about constitutional law and
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constitutional principles. And in our view, recognizing and respecting the powers that the
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province has under the constitution. And as Mr. Hunter said at the conclusion of his submissions,
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really the solution to this issue is each government recognizing the others of powers and jurisdiction
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and working together to address the issue. I know you never want to put the cart before the solar panel in
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this case. But are you optimistic with what unfolded this week here at Osgoode Hall?
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I think we got a good hearing. I think that the judges listened very attentively to the arguments.
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I think they asked lots of probing questions. So I felt we got a very good hearing. Thanks for your time.