Author ORCID Identifier

Allan C. Hutchinson: 0009-0003-8974-2886

Document Type

Article

Publication Date

2023

Source Publication

SCLR (2d) 108 (2023) 53 - 64

Abstract

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court's opinions and show how they fail to maintain that traditional explanation. I then unravel the political nature and effects of the different visions of federalism that animate the Court's work in Greenhouse Gas Pollution Pricing Act. Throughout the paper, the connecting trope is that the judges who claim to be walking the constitutional lines are also those who draw those lines: the lines are theirs. It is not that they are not bound by the lines, but that they draw and re-draw the lines as they walk along them. In this way, I will show through the Greenhouse Gas Pollution Pricing Act decision that the Court makes it up (and then remakes it) as it goes along; the lines in the (oil) sands of constitutional law are paths of its own making.

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