Amnesty International is represented in this case by Justin Safayeni and Zachary Al-Khatib.
WHAT IS THIS CASE ABOUT?
On 21 June 2018, the federal government of Canada passed the Greenhouse Gas Pollution Pricing Act, which implemented the federal carbon emissions pricing system by imposing minimum national prices on carbon emissions to encourage the reduction of emissions. The GGPPA is a “backstop,” meaning that if a provincial or territorial government does not enact an adequate system that meets the national minimum price of carbon, the federal pricing system will be implemented.
The constitutionality of the GGPPA was challenged by the provincial governments of Saskatchewan and Ontario. Both provinces argued that the GGPPA is not a valid exercise of the “national concern” branch of the federal government’s POGG (Peace, Order, and Good Government) powers, because such an exercise would severely limit provincial jurisdiction and autonomy by infringing on matters that fall within provincial powers.
Saskatchewan argued that the GGPPA’s selective taxation is also unconstitutional, as it runs counter to the constitutional principle of federalism and s.53 of the Constitution Act (1867). Similarly, Ontario argued that the GGPPA contravenes s.91 and s.53 of the Constitution Act.
The Court of Appeal for Saskatchewan rejected both lines of argument to conclude that the GGPPA is not unconstitutional on these bases. The Court of Appeal for Ontario also rejected both arguments. The Ontario Court concluded that the environment is an area of shared constitutional responsibility, and that the GGPPA is not an unconstitutional exercise of the POGG power by the federal government. Both provincial appeal court decisions are being challenged by the provinces before the Supreme Court of Canada.
AMNESTY INTERNATIONAL’S LEGAL CHALLENGE
Amnesty International, as an intervenor on this case at the Supreme Court, argued that ambiguities in the interpretation of Canada’s constitution should be resolved in a way that maximizes Canada’s compliance with its international human rights and environmental obligations, both at the federal and provincial level.
In this case, Canada is obligated to international environmental treaties, including the Paris Agreement, as well as broader human rights obligations, including the obligation to uphold the rights to life, liberty, security of the person, adequate standards of living, health, food and water, and the rights of Indigenous peoples (as codified in ICCPR, ICESCR, and UNDRIP), all of which are threatened by climate change. Constitutional interpretation of the division of powers must be informed by these obligations as they apply to climate change. Thus, the federal government does in fact have the constitutional authority to enact minimum standards to prevent and reduce the effects of climate change, as a way to uphold Canada’s obligations to the international community.
STATUS OF THE CASE
In May 2019, the Saskatchewan provincial government filed an appeal of the Saskatchewan Court of Appeal decision to the Supreme Court of Canada. In August 2019, the Ontario provincial government did the same for the Ontario Court of Appeal decision. The appeals are tentatively scheduled to be heard by the Supreme Court in June 2020, after being postponed from their original March 2020 dates due to public health concerns.
Reference re Greenhouse Gas Pollution Pricing Act, 2019, by the Court of Appeal for Ontario
Reference re Greenhouse Gas Pollution Pricing Act, 2019, by the Court of Appeal for Saskatchewan
Factum of the Intervener, by Amnesty International Canada
Application for Leave to Intervene and Affidavit of Alex Neve (Secretary General), by Amnesty International Canada
“Amnesty International to intervene in historic Supreme Court carbon pricing challenge” (9 December 2019)
“Ford government files appeal to Supreme Court over carbon pricing ruling” (28 August 2019)
“Ontario vows to keep fighting carbon tax after 2 courts uphold it” (28 June 2019)
“Saskatchewan files notice of carbon tax appeal to Supreme Court of Canada” (31 May 2019)
“Court’s carbon tax decision shows division, was a narrow win for federal government: constitutional lawyers” (4 May 2019)
“Political and Constitutional Divisions Do Not Excuse Failure to Comply with Human Rights Obligations Related to Climate Change” (12 February 2019)