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.
Citation Information
Hutchinson, Allan C..
"Walking the Line: The Politics of Federalism and Environmental Change."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
108.
(2023).
DOI: https://doi.org/10.60082/2563-8505.1434
https://digitalcommons.osgoode.yorku.ca/sclr/vol108/iss1/3
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
References
1 Johnny Cash, Walk The Line (1956).
2 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 (S.C.C.) [hereinafter "References re GGPPA"].
3 Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186 [hereinafter "GGPPA"].
4 The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, ss. 91, 92.
5 For a fuller and critical account of this supposed dichotomy, see Allan Hutchinson, "Democracy and Constitutions: Putting Citizens First" (Toronto: Toronto University Press, 2021).
6 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 50 (S.C.C.), per Wagner C.J.C.
7 This phrase is, of course, Ronald Dworkin's. See Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, Reprint 1986). I am not suggesting that the judges of the Supreme Court adopt Dworkin's more general naturalist methodology for resolving constitutional disputes.
8 British North American Act, 1867, 30-31 Vict., c. 3 (U.K.).
9 For a strong and early account of this, see Patrick Monahan, "At Doctrine's Twilight: The Structure of Canadian Federalism" (1984) 34 U.T.L.J. 47. https://doi.org/10.2307/825449
10 For a fuller account of this critical stance, see Allan C. Hutchinson, Hart, Fuller, and Everything After: The Politics of Legal Theory (Oxford: Hart Publishing, 2023). There might well be occasions of bad faith, but these are few and far between.
11 See Edwards v. Canada (Attorney General), [1929] A.C. 124 and Canada (Attorney General) v. Ontario (Attorney General), [1937] A.C. 326. See Bruce Ryder, "Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers" (2011) 54 S.C.L.R. (2d) 565 and Jean-Francois Gaudreault- Desbiens & Johanne Poirier, "From Dualism To Cooperative Federalism And Back?: Evolving And Competing Conceptions of Canadian Federalism" in Peter Oliver, et al., eds., The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at 319. https://doi.org/10.2139/ssrn.3475142
12 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at 6 (S.C.C.), per Wagner C.J.C. See, for example, Reference re Employment Insurance Act, 2005 SCC 56 at 77 (S.C.C.), per Deschamps J.
13 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 163-165 (S.C.C.).
14 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 198 (S.C.C.).
15 Justice Côté would go along with the Chief Justice as regards the nature of modern federalism, but invalidates the challenged law as it confers too broad a discretion on the federal executive. Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at paras. 222-616 (S.C.C.).
16 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 457 (S.C.C.), per Rowe J. See, for example, Reference re Securities Act, [2011] S.C.J. No. 66, 2011 SCC 66 (S.C.C.).
17 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 15 (S.C.C.), per Brown J.
18 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 576 (S.C.C.).
19 For an extended and thorough defence of this general account, see Allan Hutchinson, "Toward An Informal Account Of Legal Interpretation" (New York: Cambridge University Press, 2016).
20 See Jean-Francois Gaudreault-Desbiens & Johanne Poirier, "From Dualism To Cooperative Federalism And Back?: Evolving And Competing Conceptions of Canadian Federalism" in Peter Oliver, et al., eds., The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at 391-414. https://doi.org/10.1093/law/9780190664817.003.0018
21 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 206 (S.C.C.), per Wagner C.J.C.
22 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 575 (S.C.C.), per Rowe J. I would likely align with the majority's modern account of Canadian federalism. This, of course, is an entirely non-professional and political preference on my part. However, this does not imply that the choice is arbitrary or capricious; I can back it up with a range of political reasons. But it does not lend itself to any final or objective resolution.
23 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 49 (S.C.C.), per Wagner C.J.C.
24 Reference Re Greenhouse Gas Pollution Pricing Act, [2021] S.C.J. No. 11, 2021 SCC 11 at para. 531 (S.C.C.), per Rowe J.
25 The other provincial governments run from Liberal to Conservative. It is ill-advised to draw any firm or particular conclusions about any collective provincial approach to responding to the effects of climate change. Even allowing for different party-politics, policy and legislated actions might differ.
26 Ontario Public Service Employees' Union v. Ontario (Attorney General), [1987] S.C.J. No. 48, [1987] 2 S.C.R. 2 at para. 27 (S.C.C.), per Dickson C.J.C.
27 As I complete this essay, the Supreme Court of the United States has handed down its decision overruling Roe v. Wade; see Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 213 L. Ed. 2d 545. This was done in the name of "constitutional truth." Leaving aside any questions of good faith, this about-turn is no more or less political than Roe itself. Constitutional law, in both Canada and the United States, is always on the move; the lines are blurred, confusing and open to entire revision. The only real standout quality of Dobbs is its brazen, extremist and delusive nature.
