SCC begins fall session with carbon pricing references

Canada ratified the Paris Agreement in 2016 and committed to reducing its greenhouse gas emissions by about 30 per cent below 2005 emission levels by 2030, explains John Georgakopoulos, a partner and certified environmental law specialist at Willms & Shier Environmental Lawyers LLP in Toronto.

Also in 2016, the federal government published the pan-Canadian framework on clean growth and climate change, consisting of four main pillars: i) pricing carbon pollution; ii) developing complementary measures to further reduce emissions across the economy; iii) implementing measures to adapt to the impacts of climate change and build resilience, and iv) to take action to accelerate innovation and support clean technology.

Since then the federal government has attempted to effect such policy change through the introduction of the Greenhouse Gas Pollution Pricing Act, which received royal assent in 2018, Georgakopoulos says. “And the point of that act is to ensure there's a minimum national price on greenhouse gas emissions.”

On referral of the question of the legislation’s constitutionality from the Government of Saskatchewan, the province’s appellate court was split 3/2 in its decision, finding that the object of the legislation -- to ensure a minimum national price on greenhouse gas emissions in order to encourage their mitigation, including changing individual behaviour -- is an issue of national concern that falls under Parliament’s authority for peace, order and good government. The carbon pricing charges were regulatory and not taxes, the court found.

Likewise, Ontario’s Court of Appeal was split 3/2; it also found that the carbon pricing legislation was necessary for peace, order and good government, and that establishing greenhouse gas emission standards was of national importance, and did not unduly intrude on provincial jurisdiction.

The majority of Alberta’s Court of Appeal, also in a 3/2 decision, found the scheme to be unconstitutional, however, criticizing the Saskatchewan and Ontario rulings as trying to limit the federal scheme while finding it to be constitutional. The constitution is meant to protect the province’s jurisdiction, which is exclusive, Alberta’s majority found.

Intervener interest in the case has been high, numbering about 25  in each case including multiple provincial attorneys general, environmental and Indigenous groups.

The court’s fall session – beginning early to allow cases to be heard that had been postponed due to the COVID-19 pandemic -- includes 29 appeals in total, 13 civil and 16 criminal. Of those, 17 are by leave, eight as of right, and four are provincial references, including the three on the federal carbon pricing scheme. Nearly half of the cases are from Ontario, six from Alberta, four from Quebec, three from Saskatchewan, two from British Columbia, one from Nova Scotia, and one from the Federal Court of Appeal.

The Charter is at issue several times, including for a number of criminal matters, notably with respect to the right to trial by jury and the adoption of Bill C-75 last year which eliminated peremptory jury challenges, and changes to the “challenges for cause” regime that give judges more discretionary power to bar jurors. R. v. Chouhan , to be heard on October 7, will consider whether the C-75 legislation can be applied retrospectively.

Criminal cases will comprise about one-third of the fall session’s hearings, the majority of which involve sexual assault allegations, including by young offenders. An Ontario case concerning Crown liability and immunity, Attorney General of Ontario v. Jamie Clark, will be heard on Oct. 15.

Of the civil cases, two are media challenges to sealing orders. On Oct. 6 the court will hear an appeal of an Ontario decision to seal records in the highly publicized murders of Barry Sherman, chairman and CEO of generic pharmaceutical company Apotex Inc., and his wife, Honey, in Toronto in December 2017. Investigative journalist Kevin Donovan and his employer, the Toronto Star newspaper, have brought two applications seeking a variation of the sealing orders that keep the estate’s probate application private.

The Supreme Court’s decision in the case is expected to provide guidance on the balance between protecting personal privacy (in this case of the Sherman estate’s trustees) and the public’s right to information.

On Nov. 12, the Quebec case of MediaQMI Inc. v. Magdi Kamel, et al. will be heard. The applicant media company filed a motion to end the sealing of an order and applied for access to the contents of the court’s record and to the originating pleading which concerned a public-sector managerial employee charged with misappropriating funds.

Another two cases concern Aboriginal rights. On Oct. 8, the court will hear an appeal from British Columbia in which the respondent claims traditional Aboriginal hunting rights in Canada, where he is neither a citizen nor a resident. Richard Lee Desautel was charged with hunting without a licence, and admits to having shot and killed an elk; he was acquitted at trial. The large number of interveners in the case range from attorneys general to Aboriginal groups.

The second Aboriginal rights case, and one of the last appeals to be heard this year, is Roger Southwind, for himself, and on behalf of the members of the Lac Seul Band of Indians, et al. v. Her Majesty the Queen in Right of Canada, et al. , on Dec. 8. The appellant is a member of Lac Seul First Nation (LSFN) in northwest Ontario. He claims Canada has breached its fiduciary duty in connection with flooding of parts of the reserve by way of a dam built in 1929, and is demanding compensation. Canada neither sought the LSFN’s consent to surrender its reserve land nor did it expropriate the land to build the dam to support hydroelectric development. Existing jurisprudence does not set out a framework for equitable compensation for historical breaches.

The Supreme Court hearings will take place in person, with measures for physical distancing put in place and the judges wearing masks at least when entering and leaving the courtroom. A maximum of 15 people will be allowed in the courtroom: nine judges and six others. The bench itself has been adapted with plexiglass, with five judges on the top bench and four on the lower, and with two metres between the judges and between the counsel. Interveners will be offered the option of appearing in person or via videoconference.

The Supreme Court building remains closed to visitors, including media, but as usual hearings will be livestreamed on the court’s website.