“’Tis a rock—a crag—a cape? A cape? say rather a peninsula!” The Supreme Court of Canada’s Revisitation of the National Concern Doctrine

Authors

Jean Leclair, Faculty of Law, Université de Montréal

Abstract

After providing an overview of the jurisprudential context prior to the References re Greenhouse Gas Pollution Pricing Act, this paper examines how the majority in that judgment refashioned the national concern doctrine to allow both levels of government to legislate over the very same matter of carbon pricing.

Citation Information

Leclair, Jean. "“’Tis a rock—a crag—a cape? A cape? say rather a peninsula!” The Supreme Court of Canada’s Revisitation of the National Concern Doctrine." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 108. (2023).
DOI: https://doi.org/10.60082/2563-8505.1432
https://digitalcommons.osgoode.yorku.ca/sclr/vol108/iss1/1

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

References

1 Edmond Rostand, Cyrano de Bergerac, translated by Brian Hooker (Toronto: Bantam Books, 1981) Act I, Scene IV at 31.

2 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 (S.C.C.) [hereinafter "References re GGPPA"].

3 Or should I say "power," since s. 92(13) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, has been the holdall within which most provincial "matters" have been placed.

4 As we will see, the concept of exclusivity was also interpreted as implying that all fields of federal jurisdiction comprise an exclusive minimum content which might, in some narrowly defined instances, limit the applicability of provincial statutes of general application.

5 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

6 Re: Anti-Inflation Act, [1976] S.C.J. No. 12, [1976] 2 S.C.R. 373 at 451-452 (S.C.C.).

7 R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 452-454 (S.C.C.).

8 R. v. Crown Zellerbach, [1988] S.C.J. No. 23 at para. 34, [1988] 1 S.C.R. 401 at 443 (S.C.C.) [emphasis added].

9 Re: Anti-Inflation Act, [1976] S.C.J. No. 12, [1976] 2 S.C.R. 373 at 461 (S.C.C.).

10 Re: Anti-Inflation Act, [1976] S.C.J. No. 12, [1976] 2 S.C.R. 373 at 463 (S.C.C.) [emphasis added]; Beetz J. added, "To that extent, the exercise of that power amounts to a temporary pro tanto amendment of a federal Constitution by the unilateral action of Parliament" (at 463).

11 Re: Anti-Inflation Act, [1976] S.C.J. No. 12, [1976] 2 S.C.R. 373 at 445 (S.C.C.).

12 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 102 (S.C.C.) [emphasis added].

13 It was first enunciated in Hodge v. The Queen (1883), 9 App. Cas. 117 at 130, when the Privy Council stated that "subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91."

14 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] S.C.J. No. 41, [1988] 1 S.C.R. 749 at 766 (S.C.C.) [Beetz J.'s emphasis].

15 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] S.C.J. No. 41, [1988] 1 S.C.R. 749 at 765 (S.C.C.) [emphasis added].

16 Reference re Securities Act, [2011] S.C.J. No. 66, [2011] 3 S.C.R. 837 at para. 66 (S.C.C.) [emphasis in original].

17 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] S.C.J. No. 41, [1988] 1 S.C.R. 749 at 840 (S.C.C.). See also Quebec (Attorney General) v. Canadian Owners and Pilots Assn., [2010] S.C.J. No. 39, [2010] 2 S.C.R. 536 at para. 58 (S.C.C.).

18 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] S.C.J. No. 41, [1988] 1 S.C.R. 749 at 839 (S.C.C.). Since Canadian Western Bank v. Alberta, [2007] S.C.J. No. 22, [2007] 2 S.C.R. 3 (S.C.C.), such provincial legislation of general application is inapplicable only if its adverse impact is held to impair the basic, minimum and unassailable content of a federal jurisdiction (at para. 48).

19 Furthermore, Canadian Western Bank v. Alberta, [2007] S.C.J. No. 22, [2007] 2 S.C.R. 3 (S.C.C.) also held that the doctrine of interjurisdictional immunity "should in general be reserved for situations already covered by precedent" (at para. 77).

20 Munro v. Canada (National Capital Commission), [1966] S.C.J. No. 46, [1966] S.C.R. 663 (S.C.C.).

21 Munro v. Canada (National Capital Commission), [1966] S.C.J. No. 46, [1966] S.C.R. 663 at 671 (S.C.C.).

22 Ontario Hydro v. Ontario (Labour Relations Board), [1993] S.C.J. No. 99, [1993] 3 S.C.R. 327 (S.C.C.). Of the seven judges that heard the case, four (Lamer C.J.C. and La Forest, L'Heureux- Dube' and Gonthier JJ.) decided that labour relations were integral to Parliament's declaratory and POGG powers.

23 Quebec (Attorney General) v. Lacombe, [2010] S.C.J. No. 38, [2010] 2 S.C.R. 453 at para. 27 (S.C.C.).

24 Multiple Access Ltd. v. McCutcheon, [1982] S.C.J. No. 66, [1982] 2 S.C.R. 161 (S.C.C.); John Deere Plow Co. v. Wharton, [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, [1929] A.C. 260.

25 R. v. Crown Zellerbach, [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 (S.C.C.).

26 I have analyzed the impact of a jurisdiction's particular nature on the scope of power it confers in Jean Leclair, "L'impact de la nature d'une compétence législative sur l'étendue du pouvoir conféré dans le cadre de la Loi constitutionnelle de 1867" in Mélanges Jean Beetz (Montreal: Thémis, 1995) at 613, where I distinguish between powers such as "property and civil rights," "bills of exchange" and "bankruptcy," which call for an "analytical" approach, and powers concerning "works and undertakings," calling for a "material-empirical" approach. Whereas the first type is concerned with purposes (understood in an objective sense, as the objects that the jurisdiction is structured to fulfil), the second is more concerned with the power over an undertaking "as a going concern" (Northern Telecom v. Communication Workers, [1979] S.C.J. No. 98, [1980] 1 S.C.R. 115 at 133, 135 (S.C.C.)). While the first type of power easily lends itself to the application of the double aspect, the second does not.

27 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] S.C.J. No. 41, [1988] 1 S.C.R. 749 at 844 (S.C.C.).

28 Canadian Western Bank v. Alberta, [2007] S.C.J. No. 22, [2007] 2 S.C.R. 3 at para. 77 (S.C.C.). As we will see, this has led Wagner C.J.C. to conclude that "[t]oday's restrained approach to interjurisdictional immunity suggests that it would not apply to a newly identified matter of national concern" and therefore would not apply in the present case: References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 124 (S.C.C.).

29 My intent in this short essay is to bring to light the most critical features of the majority reasons in the Reference, not to provide the reader with a step-by-step analysis of the arguments of Wagner C.J.C. and Brown and Rowe JJ. (dissenting). As for Côté J., she agreed with Wagner C.J.C.'s reformulation of the national concern test, but refused to consider the establishment of national standards of price stringency as a matter of national concern "because the breadth of the discretion conferred by the Act on the Governor in Council results in the absence of any meaningful limits on the power of the executive" (para. 222). The most detailed description and analysis of the case is provided by Jean-François Gaudreault-Desbiens & Noura Karazivan, "Dissipating Normative Fog: Revisiting the POGG's National Concern Test" (2021) 55:1 Revue Juridique Thémis 103-135 and by Nigel Bankes, Andrew Leach & Martin Olszynski, "Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)" (April 28, 2021), online: ABlawg, http://ablawg.ca/wp-content/uploads/2021/04/Blog_NB_AL_MO_SCC_GGPPA_Ref_Part1.pdf Part II (The Dissents)" (April 29, 2021), online: ABlawg, http://ablawg.ca/wp-content/uploads/2021/04/Blog_NB_AL_MO_SCC_GGPPA_Ref_Part2.pdf Part III (Commentary)" (April 30, 2021), online: ABlawg, http://ablawg.ca/wp-content/uploads/2021/04/Blog_NB_AL_MO_SCC_GGPPA_Ref_Part3.pdf. I will not refer here to the excellent pre References re GGPPA scholarship that undoubtedly influenced the Chief Justice's reasoning, most notably Andrew Leach & Eric M. Adams, "Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction" (2020) 29 Const. Forum 1 and Nathalie J. Chalifour, Peter Oliver & Taylor Wormington, "Clarifying the Matter: Modernizing Peace, Order, and Good Government in the Greenhouse Gas Pollution Pricing Act Appeals" (2020) 40 N.J.C.L. 153.

30 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 55 (S.C.C.).

31 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 55, 57, 70, 80-81 (S.C.C.) (means = matter).

32 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 119, 171, 207 (S.C.C.) (means = matter of national concern).

33 Jean Leclair, "The Elusive Quest for the Quintessential 'National Interest' " (2005) 38 U.B.C. L. Rev. 353 at 363. Contrary to what some have asserted, I never claimed that a specific legislative means could never qualify as a matter of national concern. Associate Chief Justice Hoy of the Ontario Court of Appeal perfectly understood my point when she said in Reference re Greenhouse Gas Pollution Pricing Act, [2019] O.J. No. 3403, 2019 ONCA 544 at para. 182 (Ont. C.A.): "My colleague, Justice Huscroft, cites Professor Jean Leclair's caution in "The Elusive Quest for the Quintessential 'National Interest' " (2005), 38 U.B.C. L. Rev. 353, at pp. 363-64, that the conceptual indivisibility test in R. v. Crown Zellerbach Canada Ltd. . . . must be applied to the matter said to be of national importance, and not to the legislative means employed to ensure its regulation. In my view, Professor Leclair's point is not that the characterization of the pith and substance of a law cannot include any reference to means. Rather, his concern is that if the pith and substance of the law is broadly defined, that broad definition, and not the narrower means by which the purpose of the law is to be effected, must satisfy the Crown Zellerbach test.

34 RJR-Macdonald Inc. c. Canada (Procureur général), [1993] J.Q. no 1, [1993] R.J.Q. 375 (Que. C.A). On appeal, the Supreme Court of Canada upheld the validity of the Tobacco Products Control Act, S.C. 1988, c. 20, on the basis of Parliament's jurisdiction over criminal law, thus finding it unnecessary to consider whether it also fell under the peace, order and good government clause.

35 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 370 (S.C.C.), per Brown J. While Brown and Rowe JJ. wrote lengthy separate opinions, they concurred with each other's reasons.

36 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 162-166 (S.C.C.).

37 R. v. Zellerbach, [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 (S.C.C.).

https://doi.org/10.1111/j.2150-1092.1988.tb00065.x

38 R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 434 (S.C.C.).

39 Re: Anti-Inflation Act, [1976] S.C.J. No. 12, [1976] 2 S.C.R. 373 at 458 (S.C.C.), cited by Wagner C.J.C.: References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 103 (S.C.C.).

40 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 175 (S.C.C.). See also para. 199.

41 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 201 (S.C.C.). Circumscribing the subject matter of national concern as the Chief Justice did could raise problems when regulations adopted under the Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186, face judicial review. What scope exactly will judges recognize to the cabinet's regulation-making power? It will have to be restricted to the establishment of minimum national standards of GHG price stringency to reduce GHG emissions, and no more. But how is one to assess that? On this interesting question, see Paul Daly, "Reviewing Regulations of National Concern: Administrative Law Matter (No. 2) in the References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11" (April 27, 2021), online: https://www.administrativelawmatters.com/blog/2021/04/27/reviewing-regulations-ofnational-concern-administrative-law-matter-no-2-in-the-references-re-greenhouse-gas-pollutionpricing-act-2021-scc-11/.

42 There is a vast literature on this subject; for a slightly different take on the application of the subsidiarity principle in the context of the national concern doctrine, see Jean-François Gaudreault-Desbiens & Noura Karazivan, "Dissipating Normative Fog: Revisiting the POGG's National Concern Test" (2021) 55:1 Revue Juridique Thémis 103-135.

43 Peter Rinderle, "The Political Philosophy of European Subsidiarity" in Günter Walzenbach & Ralf Alleweld, eds., Varieties of European Subsidiarity. A Multidisciplinary Approach (Bristol: E-International Relations, 2021) 18 at 20. In a similar fashion, but in another context, Dickson J. (as he then was) made the following comment in Canada (Attorney General) v. Canadian National Transportation Ltd., [1983] S.C.J. No. 73, [1983] 2 S.C.R. 206 at 266 (S.C.C.): "Every general enactment will necessarily have some local impact, and if it is true that an overly literal conception of "general interest" will endanger the very idea of the local, there are equal dangers in swinging the telescope the other way around. The forest is no less a forest for being made up of individual trees."

44 The subsidiarity principle, as defined in s. 5.3 of the Treaty establishing the European Community, comprises both a negative and a positive element: "Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at the central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed actions, be better achieved at Union level. [Emphasis added]." The positive element of the principle might make one wonder why I refer to an "inverted" subsidiarity principle. The short answer is that the subsidiarity principle would have required, as a first step, an examination of provincial powers. In contrast, the majority went straight to an examination of the national concern doctrine, and thus of federal power. Second, the majority was not simply discussing how an enumerated concurrent power should be exercised, but whether an unenumerated exclusive federal power should be judicially recognized. Hence, the intent of the majority was not to limit federal power, but to enhance it (although in a limited fashion, as will be explained, by recognizing that Parliament has an exclusive power devoid of a basic, minimum and unassailable content). I recognize that where I see a manifestation of "inverted subsidiarity," others might simply see one of "subsidiarity," period. In this vein, there is some truth in the anonymous reviewer remarks to the effect that "[i]f subsidiarity were assumed to result in power being assigned to the lower, smaller units, then it would be inverted when powers are assigned to higher, larger units. However, tests for subsidiarity always seem to use words like "apt" or "appropriate" as in 'the regulation of industrial pollution should occur at the lowest appropriate level'. Given the way in which pollution moves across boundaries, the lowest appropriate level may well be national or international, with no inversion (just normal application of the subsidiarity principle) having occurred. Obviously, this illustrates, as is well known, that the downward-pushing intentions that subsidiarity conveys don't always produce downward-pushing results. But is that an inversion or is it just the slipperiness of the concept?" [Reviewer's underlining].

45 Elinor Ostrom, "Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Actions at Other Scales?" (2012) 49 Econ Theory 353 at 354-55. https://doi.org/10.1007/s00199-010-0558-6

46 Elinor Ostrom, "Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Actions at Other Scales?" (2012) 49 Econ Theory 353 at 356. https://doi.org/10.1007/s00199-010-0558-6

47 Elinor Ostrom, "Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Actions at Other Scales?" (2012) 49 Econ Theory 353 at 355, quoting her husband Vincent Ostrom, "Polycentricity-Part 1" in Michael D. McGinnis, ed., Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis (Ann Arbor: University of Michigan Press, 1999) 52 at 57.

48 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 175 (S.C.C.).

49 Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186 [hereinafter "GGPPA"].

50 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 206 (S.C.C.) [emphasis added]. See also para. 200: "Nor is the freedom of the provinces and territories to legislate in relation to all methods of pricing GHG emissions at issue. Even where the specific regulatory mechanism of GHG pricing is concerned, the extent to which the matter interferes with provincial jurisdiction is strictly limited."

51 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 129 (S.C.C.).

52 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 130 (S.C.C.). The Chief Justice makes no mention of the passage from Beetz J.'s reason reproduced above (section II). It worth noting that the word "exclusive" appears only 11 times in the majority's reasons, while the dissenters refer to it 68 times.

53 Desgagnés Transport Inc. v. Wärtsilä Canada Inc., [2019] S.C.J. No. 58, 2019 SCC 58 at para. 84 (S.C.C.) [footnotes omitted].

54 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 122 (S.C.C.). I believe that the Chief Justice confuses the scope of the federal power and its basic, minimum and unassailable content, as Binnie and LeBel JJ. Warned against in Canadian Western Bank v. Alberta, [2007] S.C.J. No. 22, [2007] 2 S.C.R. 3 at para. 85 (S.C.C.): "It is unnecessary, for present purposes, to delve deeply into the notoriously difficult task of defining banking. It includes the incorporation of banks. It certainly includes, as the banks argue, the securing of loans by appropriate collateral. At issue is the difference between requiring collateral (a banking activity) and promoting the acquisition of a certain type of product (e.g. insurance) that could then be used as collateral. The respondent, for its part, complains that the appellants' argument would render the "basic, minimum and unassailable" content of the banking power more or less co-extensive with what bankers are authorized to do. There is no doubt that banking is crucial to the economy and that even the basic, minimum and unassailable content of the exclusive power conferred on Parliament in this regard must not be given a cramped interpretation. Banks are institutions of great importance. The federal authorities monitor all aspects of their activities to ensure that they remain safely solvent and that they do not abuse their privileged position as takers of deposits and granters of credit. Courts have recognized that in its regulation of banks, Parliament may well trench on matters that would otherwise lie within provincial jurisdiction such as property and civil rights in the province, including insurance. As early as 1894, it was held that the federal banking power allowed Parliament to confer upon a bank privileges which had "the effect of modifying civil rights in the province". . . . Such considerations, however, should not lead to confusion between the scope of the federal power and its basic, minimum and unassailable content." [Emphasis added]. See also NIL/TU,O Child and Family Services Society c. B.C. Government and Service Employees' Union, [2010] S.C.J. No. 45, [2010] 2 S.C.R. 696 at para. 22 (S.C.C.).

55 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 124 (S.C.C.).

56 According to Article 174 ff. of the Treaty establishing the European Community, "environmental policy" is a concurrent jurisdiction.

57 Article 5.4 of the Treaty establishing the European Community: "Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties." In Europe, the principle of proportionality has trickled down from human rights case law to its division of powers counterpart.

58 It is a clever way of achieving what Jeremy Webber calls "transformative change": Jeremy Webber, "Frustrations of Federalism, Frustrations of Democracy: Trudeau, Transformative Change and the Canadian Constitutional Order", (2020) 99 S.C.L.R. (2d) 101.

59 However, it goes without saying that, although provinces could enact any GHG pricing system of their choice - even one similar to that established by Parliament, they could not enact national standards of price stringency.

60 Tsilhqot'in Nation v. British Columbia, [2014] S.C.J. No. 44, [2014] 2 S.C.R. 257 (S.C.C.).

61 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(24).

62 Tsilhqot'in Nation v. British Columbia, [2014] S.C.J. No. 44, [2014] 2 S.C.R. 257 at paras. 130-151 (S.C.C.). This entails that valid provincial laws of general application can comprise provisions regulating Aboriginal and treaty rights, without those provisions being held invalid or inapplicable. However, these provisions would have to satisfy the R. v. Sparrow ([1990] S.C.J. No. 49, [1990] 1 S.C.R. 1075 (S.C.C.)) test. Furthermore, only Parliament could enact legislation whose pith and substance is the regulation of Aboriginal and treaty rights (subject to the Sparrow test). For more on this, see Jean Leclair & Michel Morin, "Peuples autochtones et droit constitutionnel" in Stéphane Beaulac & Jean-François Gaudreault-Desbiens, eds., JurisClasseur Québec - Collection de droit public, looseleaf (Montreal: LexisNexis Canada, 2011) at para. 134.2.

63 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 198 (S.C.C.).

64 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 176 (S.C.C.). See also paras. 179-180.

65 Remember that, in Canadian Western Bank v. Alberta, [2007] S.C.J. No. 22, [2007] 2 S.C.R. 3 at para. 48 (S.C.C.), Binnie and Lebel JJ. held that the doctrine of interjurisdictional immunity "should in general be reserved for situations already covered by precedent" (at para. 77), a statement approved by Wagner C.J.C. (References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 124 (S.C.C.)).

66 Quebec (Attorney General) v. Canadian Owners and Pilots Assn., [2010] S.C.J. No. 39, [2010] 2 S.C.R. 536 (S.C.C.).

67 John Deere Plow Co. v. Wharton, [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, [1929] A.C. 260 and Multiple Access Ltd. v. McCutcheon, [1982] S.C.J. No. 66, [1982] 2 S.C.R. 161 (S.C.C.).https://doi.org/10.1007/BF02050607

68 Chief Justice Wagner having concluded that "[t]oday's restrained approach to interjurisdictional immunity suggests that it would not apply to a newly identified matter of national concern" such as the one at issue in References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 124 (S.C.C.). However, as mentioned earlier, it goes without saying that, although provinces could enact any GHG pricing system of their choice - even one similar to that established by Parliament, they could not enact national standards of price stringency.

69 R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 432 (S.C.C.).

70 R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 432 (S.C.C.).

71 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 383, 424 (Brown J.), 560 and 581 (Rowe J.) (S.C.C.). They were also of the opinion that the majority's restatement of the Zellerbach test was "bound to lead to serious tensions in the federation" (Brown J. (para. 456)) and that it had implications that would "permanently alter the Confederation bargain" (Rowe J. (para. 592)).

72 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 157 (S.C.C.): "Provincial inability will be established only if the matter is of a nature that the provinces cannot address either jointly or severally, because the failure of one or more provinces to cooperate would prevent the other provinces from successfully addressing it, and if a province's failure to deal with the matter within its own borders would have grave extraprovincial consequences" [Emphasis in original, by Wagner C.J.C.].

73 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 104, 154 (S.C.C.). See also paras. 186, 187.

74 Labatt Brewing Co. v. Canada (Attorney General), [1979] S.C.J. No. 134, [1980] 1 S.C.R. 914 (S.C.C.).

75 Constitutional Law of Canada (1977) at p. 261, quoted at page 945 of Labatt Brewing Co. v. Canada (Attorney General), [1979] S.C.J. No. 134, [1980] 1 S.C.R. 914 (S.C.C.) [emphasis added].

76 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 2 (S.C.C.).

77 Jocelyn Stacey, "Climate Disruption in Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act" (2021) 33 J. Envtl. L. 711 at 719-720. https://doi.org/10.1093/jel/eqab023

78 For the majority's analysis of the evidence establishing the dangers of climate change and its negative externalities, see References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 7-13, 24, 167-170, 184-186 (S.C.C.).

79 Although Le Dain J. mentions the Hogg criterion (R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 428, 431 (S.C.C.)), he does not explicitly refer to it in his articulation of the national concern test at 431-432. On the need for credible evidence, see Jean Leclair, " 'Please, Draw Me a Field of Jurisdiction': Regulating Securities, Securing Federalism" (2010) 51 S.C.L.R. (2d) 555 at 581-582. In that paper, I criticized the "provincial incapacity" test applicable to the second branch of the trade and commerce power that was developed in General Motors of Canada Ltd. v. City National Leasing Ltd., [1989] S.C.J. No. 28, [1989] 1 S.C.R. 641 (S.C.C.). The test, as designed by the Supreme Court of Canada, had the effect of conferring jurisdiction on Parliament over certain specific trade matters if it was established that provinces were incapable of regulating them effıciently. I argued that a more substantive burden of proof was required, one calling for persuasive empirical evidence so that normative statements (such as "it goes without saying that such and such solution is beneficial to the economy") could not be recast by willing judges into empirical truths.

80 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 161 (S.C.C.) [Author emphasis].

81 Nigel Bankes, Andrew Leach & Martin Olszynski, "Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)" (April 30, 2021), online: ABlawg, http://ablawg.ca/wp-content/uploads/2021/04/Blog_NB_AL_MO_SCC_GGPPA_Ref_Part3.pdf at 7.

82 Jocelyn Stacey, "Climate Disruption in Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act" (2021) 33 J. Envtl. L. 711 at 723. https://doi.org/10.1093/jel/eqab023

83 Elinor Ostrom, "Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Actions at Other Scales?" (2012) 49 EconTheory 353 at 365. https://doi.org/10.1007/s00199-010-0558-6

84 Elinor Ostrom, "Nested Externalities and Polycentric Institutions: Must We Wait for Global Solutions to Climate Change Before Taking Actions at Other Scales?" (2012) 49 Econ Theory 353 at 365. https://doi.org/10.1007/s00199-010-0558-6

85 Jeremy Webber, "Frustrations of Federalism, Frustrations of Democracy: Trudeau, Transformative Change and the Canadian Constitutional Order" (2020) 99 S.C.L.R. (2d) 101 at 133: "The subjective dimension of democratic citizenship [and the same goes for federal citizenship] -the perception that one is a member, participating in one's own governance -relies on a sense of basic fairness."

86 Quoted in Nigel Bankes, Andrew Leach & Martin Olszynski, "Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)" (April 30, 2021), online: ABlawg, http://ablawg.ca/wpcontent/uploads/2021/04/Blog_NB_AL_MO_SCC_GGPPA_Ref_Part3.pdf at 7.

87 Jean Leclair, "La théorie des dimensions nationales: une boîte à phantasmes – Canada (Procureur général) c. R.J.R. MacDonald Inc. (1993) 72 R du B can 524 and Jean Leclair, "The Elusive Quest for the Quintessential 'National Interest' " (2005) 38 U.B.C. L. Rev. 355.

88 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 54, 106, 116, 193, 201 (S.C.C.). The disputed passage of R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 at 436 (S.C.C.) reads as follows: "Marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. The question is whether the control of pollution by the dumping of substances in marine waters, including provincial marine waters, is a single, indivisible matter, distinct from the control of pollution by the dumping of substances in other provincial waters. The Ocean Dumping Control Act reflects a distinction between the pollution of salt water and the pollution of fresh water. The question, as I conceive it, is whether that distinction is sufficient to make the control of marine pollution by the dumping of substances a single, indivisible matter falling within the national concern doctrine of the peace, order and good government power."

89 Dissenting La Forest J. and his three colleagues made the same mistake in R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 (S.C.C.). A unanimous Court in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] S.C.J. No. 1 at para. 85, [1992] 1 S.C.R. 3 at 64 (S.C.C.) stated that "[t]he majority [in Crown Zellerbach] simply decided that marine pollution was a matter of national concern because it was predominately extra-provincial and international in character and implications, and possessed sufficiently distinct and separate characteristics as to make it subject to Parliament's residual power." Again, the Court unanimously concluded the same thing on that very point in R. v. Hydro-Québec, [1997] S.C.J. No. 76, [1997] 3 S.C.R. 213 (S.C.C.) (La Forest J. for the majority at para. 115; and Lamer C.J.C. for the dissenters at para. 85).

90 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 158 (S.C.C.).

91 References re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 172 (S.C.C.).

92 François Chevrette, "Dominium et imperium: L'État propriétaire et l'État puissance publique en droit constitutionnel canadien" in Benoît Moore, ed., Mélanges Jean Pineau (Montréal: Thémis, 2003) at 665.

93 Jean Beetz, "Les attitudes changeantes du Québec à l'endroit de la Constitution du 1867" in Paul-André Crépeau & C.B. MacPherson, eds., L'avenir du fédéralisme canadien (Toronto: University of Toronto Press, 1965) 113 at 121: [MY TRANSLATION] "[T]he Quebec jurist cannot help but be troubled by the attitude of some Canadian jurists who either are content to use mainly quantitative criteria to determine the validity of laws whose constitutionality is in doubt, or take pleasure in emphasizing the considerable degree of intuition involved in the judicial interpretation of the constitution. The attitude of these lawyers may be an accurate description of the process of constitutional interpretation, but when indulged too far, it can lead to a confusion between political science and law, and to a resignation of the analytical spirit and a renunciation of conceptualization, both of which are indispensable to the fruitfulness of law. From a Quebec perspective, law ... is essential to the preservation of Quebec's collective identity." [Emphasis added.]

94 For more on this, see Jean Leclair, "The Parameters of Action in a Legal Pluralism Context" in Ghislain Otis, Jean Leclair & Sophie Thériault, Applied Legal Pluralism: Processes, Driving Forces and Effects (London: Routledge, 2022) at 90-97.

95 On this subject, see the section entitled "The Neglected Virtues of Formalism" in Jean Leclair, "The Supreme Court's Understanding of Federalism: Efficiency at the Expense of Diversity" (2003) 28 Queen's L.J. 411 at 431-432. https://doi.org/10.1016/S0361-476X(03)00029-8

96 See Jean Leclair, "The Securities Reference: The Ghost of Political Representation Comes Knocking at Federalism's Door" (2012), online: http://ssrn.com/abstract=2189661 or http://dx.doi.org/10.2139/ssrn.2189661. https://doi.org/10.2139/ssrn.2189661

97 See Jean Leclair, "Ceintures fléchées and Wampum Belts: Quebec and Indigenous Peoples in the Canadian Federation" (2018) Journal of Parliamentary and Political Law /Revue de Droit Parlementaire et Politique - Special Issue / Numéro hors-série 17.

98 See Jean Leclair, " 'Please, Draw Me a Field of Jurisdiction': Regulating Securities, Securing Federalism" (2010) 51 S.C.L.R. (2d) 55.

99 See Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] S.C.J. No. 75, [1997] 3 S.C.R. 3 at paras. 314-317 (S.C.C.).

100 Jean Leclair, "Foreword: Unwritten Constitutional Principles: The Challenge of Reconciling Political and Legal Constitutionalisms" (2020) 65 McGill L.J. 153 at 159-160.

https://doi.org/10.7202/1075514ar

101 For more about my federal theory, see Jean Leclair, "Envisaging Canada in a Disenchanted World: Reflections on Federalism, Nationalism, and Distinctive Indigenous Identity" (2016) 25 Const. Forum Const. 15; Jean Leclair, "Le fédéralisme: un terreau fertile

https://doi.org/10.21991/C90109 pour gérer un monde incertain" in Ghislain Otis & Martin Papillon, eds., Fédéralisme et gouvernance autochtone/Federalism and Aboriginal Governance (Québec: Les Presses de l'Université Laval, 2013) at 21; Jean Leclair, "Federalism as Rejection of Nationalist Monisms" in Dimitrios Karmis & François Rocher, eds., The Trust/Distrust Dynamic in Multinational Democracies: Canada in Comparative Perspective (Montreal and Kingston: McGill-Queen's University Press, 2018) at 210; for a very similar perspective, see Jean-François Gaudreault-Desbiens, "Towards a Deontic-Axiomatic Theory of Federal Adjudication" in Lev Amnon, ed., The Federal Idea. Public Law Between Governance and Political Life (Oxford: Hart Publishing, 2017) at 75.

102 Alexis de Tocqueville, Democracy in America, Historical-Critical Edition of De la démocratie en Amérique, vol. 1, edited by Eduardo Nolla, translated by James T. Schleifer (Indianapolis: Liberty Fund, 2010) at 269-270.

103 Jean Leclair "Invisibility, Wilful Blindness and Impending Doom: The Future (If Any) of Canadian Federalism" in Carolyn Hughes Tuohy et al., eds., Policy Transformation in Canada. Is the Past Prologue? (Toronto: University of Toronto Press, 2019) at 106.