Judicial Activism Advances Dysfunctional Federalism

Grant A. Brown
October 16, 2020
It is one sign of the remorseless march of the administrative state that appeals to Canada’s Constitution appear almost quaint, as well as typically toothless. The news media often frame provincial objections to federal encroachments as claims or perceptions rather than testable assertions, as if Canada’s constitutional documents comprise long-lost secret scrolls written in a dead language. It has been Canada’s judges, however, who have most decisively tipped the balance in favour of federal supremacy in more and more areas. No case has proved too small to keep the process rolling. Not even, as Grant A. Brown reports, a dispute over a simple Ontario government sticker that even the judge had to concede was factually accurate.

Judicial Activism Advances Dysfunctional Federalism

Grant A. Brown
October 16, 2020
It is one sign of the remorseless march of the administrative state that appeals to Canada’s Constitution appear almost quaint, as well as typically toothless. The news media often frame provincial objections to federal encroachments as claims or perceptions rather than testable assertions, as if Canada’s constitutional documents comprise long-lost secret scrolls written in a dead language. It has been Canada’s judges, however, who have most decisively tipped the balance in favour of federal supremacy in more and more areas. No case has proved too small to keep the process rolling. Not even, as Grant A. Brown reports, a dispute over a simple Ontario government sticker that even the judge had to concede was factually accurate.
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Canada’s founders, acutely aware of the distinctness of Quebec and Upper Canada, saw the wisdom of decentralizing political power. They deliberately vested jurisdiction over a long list of areas exclusively in the provinces, so that each could find its own way, greatly shrinking the range of disputes that could threaten the fragile new nation’s unity. “Strong fences make good neighbours,” as the saying goes – and this is nowhere more true than in politics. In Canada, the provinces were intended to be “masters in their own house”.

But Canada is increasingly being governed from the centre, as Ottawa invades provincial jurisdiction virtually nonstop. Be it healthcare, pharmacare, daycare, homelessness, education, resource development or the environment, one office on Parliament Hill now threatens to control the entire country. This is bad news for national unity, as new Conservative leader Erin O’Toole has intimated. The more Ottawa tries to lash together every diverse region through national programs and standards, the more helpless the provinces feel, and the greater our political divisions will become.

From healthcare to childcare, homelessness and resource development, the courts are advancing federal supremacy over constitutional areas of provincial jurisdiction.
From healthcare to childcare, homelessness and resource development, the courts are advancing federal supremacy over constitutional areas of provincial jurisdiction.

One tragedy is that our federally appointed judiciary no longer function as a check on Ottawa’s power. Over the decades judges have seriously eroded the concept of exclusive provincial jurisdiction in favour of shared jurisdiction, with Parliament holding “paramountcy.” Attempts by the provinces to push back against this creeping authoritarianism are being slapped down by activist courts.

Most of the provinces oppose the federal government’s multi-pronged invasion into resource development and environmental regulation, mostly notably through the imposition of a carbon tax scheme. Some have challenged the federal government directly in court, with the Supreme Court of Canada last month hearing appeals of three recent provincial court-of-appeal rulings. Some provinces have circumvented direct confrontation by proposing a carbon emissions reduction scheme that satisfies the inscrutable and inconsistent wishes of the Liberal cabinet. Part of Ontario’s plan to push back against a meddlesome Ottawa was to raise public awareness by requiring gasoline retailers in the province to display stickers on the pumps setting out the escalating cost of the federal scheme under the Greenhouse Gas Pollution Pricing Act.

The Carbon Tax Stickers were so well-received by fuel retailers that the Canadian Civil Liberties Association couldn’t get any of them to help sue Ontario’s Doug Ford government.

The “Carbon Tax Stickers” were rolled out in August of last year and did not sit well with the Canadian Civil Liberties Association (CCLA). It saw them as an unjustified infringement on the gasoline retailers’ freedom of expression. The retailers themselves, however, were insouciant or perhaps even supportive of the stickers, and the CCLA proved unable to find a single gasoline retailer in the entire province willing to act as a representative litigant. So the association took it upon itself as a “public interest litigant” to sue the Doug Ford government. The decision by Justice Edward Morgan of Ontario’s Superior Court came down early last month.

The Sticker clearly represents a limitation on free expression, contrary to s. 2(b) of the Charter of Rights and Freedoms, inasmuch as it compels speech by imposing monetary fines on gasoline retailers who fail to post the prescribed message. The decisive issue is whether this infringement can be saved by the exception provided in s. 1, as a reasonable limit on freedom of expression in a free and democratic society. Jurisprudence over the decades has created a (shall we say) flexible and adaptable framework for how and when this test is met. In the present instance, the crux was whether the Sticker advanced a “pressing and substantial concern.” 

One might naively think the only thing relevant in assessing whether a compelled message is justified in a free and democratic society is the message itself. After all, it is the message that is being compelled, not support for the entire legislative regime of which it is a part, much less the pronouncements of politicians who defend the legislation against critics. The problem with such a narrow focus on the message itself is that it deprives activist judges of the expansive scope they might need to shape the law in their own image. In his zeal to strike down the Sticker and defend the federal Liberal “green” agenda, Morgan apparently searched high and low for such rationales.

“Unreliable narrator” – Judge Edward Morgan found the Ford government’s sticker fell short of perfection.

All sides acknowledged that the Sticker accurately conveys simple information: the escalating cost of the federal government’s gasoline levy, Morgan conceding this point in one sentence of his 17-page decision. He further conceded that informing the consuming public of the government-controlled components of the price of consumer products is a pressing and substantial government objective.

Indeed, this is in part why provincial sales taxes and federal value-added taxes must be visibly added to the price of most products at the cash register, rather than being hidden within the posted price. The Canadian Independent Petroleum Marketers Association, which represents independent gas retailers, indeed wanted a sticker that showed all the taxes and other changes that go into making up the cost per litre. Yet that other information was already readily available. Only the carbon tax element was missing. Absent the Sticker, the federal gasoline levy is exceptional in this regard, a form of stealth tax that the Ford government was attempting to bring into the light. 

Case Closed? Not so Fast!

Morgan registered two quibbles with the Sticker itself. The first is that it employs a “misnomer” and an “adversarial slogan.” The federal legislation refers to the gasoline levy as a “fuel charge,” observed Morgan; thus when the provincial government refers to it as a “carbon tax,” it is misusing labels for political purposes. According to Morgan, this nomenclature taints the Sticker with misleading partisanship, which undermines its pretense to having the pressing and substantial objective of informing the consuming public. “Persisting in calling it a ‘carbon tax’ would be perfectly acceptable in political advertising or in a politician’s speech, but it is an intentional use of ‘spin’ that reveals the advocacy rather than informational thrust of the message,” Morgan wrote.

Incomplete federal communication renders the carbon tax something of a stealth levy – but is OK by the courts.

One wonders why the federal nomenclature – which can equally be described as a politically chosen euphemism designed to hide the true nature of the levy – should govern usage by the province. Morgan finds this reasonable because the Ontario Court of Appeal determined that the gasoline levy is not a tax, but a “regulatory charge.” This reasoning, however, rests upon a vacuous contrast between a tax, which is understood in Canadian constitutional law as primarily a revenue-generating measure, and a regulatory charge, which is aimed at modifying private conduct. Surely the gasoline levy does both. Indeed, it does the latter through the former, in equal measure: as the gasoline levy escalates in the coming years, it provides a correspondingly greater incentive for consumers to conserve, and thereby generates more revenue for the government. How do you drive a meaningful wedge between those two characteristics? 

Despite his stated distaste for spin, Morgan also accepted the Liberals’ spin that the gasoline levy is “revenue neutral” and that, since its primary objective therefore cannot be to generate revenue for the government, it also is not a tax. But this is a mirage for the simple reason that government revenues are fungible. The gasoline levy does not go into a separate bank account, administered at arm’s-length from politicians. Any accounting of how the revenues from the fuel charge are spent is merely notional. That the federal government claims to spend money raised from the gasoline levy on targeted “green initiatives” does not negate that it is raising revenue to pursue its political agenda. A cynic would note that if the Liberals did not give $12 million to Loblaws to buy more efficient refrigerators, notionally from a fund generated by the gasoline levy, they would simply find other ways to favour their corporate friends.

A cool deal: Then Environment Minister Catherine McKenna hands Loblaw’s $12 million of taxpayers’ money to help reduce carbon emissions.

It’s true most of the money coming from provinces like Ontario that do not have a federally-approved carbon-reduction plan is redirected to consumers in those provinces (though not necessarily the consumers who pay the tax; stories abound of wheelchair-bound nursing home residents receiving refunds). That this rebate is made through the tax system might suggest the revenues are a tax to begin with. A scheme is no less a tax just because it redistributes income rather than creates a net increase for government. 

The Liberals’ policy of raising income taxes on the richest 1 percent in order to lower them on the middle class may well be revenue-neutral. That does not make the income tax code any less of a tax regime. But even if the carbon tax were not a tax as legally defined, it is no legitimate criticism that a provincial government used the word “tax” in a colloquial rather than a narrow, legalistic manner. The common understanding of a tax is a mandated government levy; politicians appealing to the common people should be free to use the word in that way even if judges don’t. 

A Sticker Needs to be Comprehensive?

Morgan’s second quibble was that the Sticker does not provide all of the information he deemed relevant. “The Sticker purports to explain the true cost of the federal Fuel Charge, but omits the federal rebate and Climate Action Incentive provisions,” he noted, before asserting, “That kind of half-truth is not very truthful.” One wonders how the Sticker “purports” to explain everything about the federal regime. It does what it manifestly does; no more and no less. Being unhappy that the Sticker doesn’t do more than it does falls well short of a judicial reason for striking it down. 

The judge even parsed extraneous language in the enabling legislation, scoffing at the notion that the Sticker promotes “transparency” in the pricing of gasoline. “In making transparent only those aspects of the federal policy that fit the government of Ontario’s political narrative, the statute speaks in the voice of an unreliable narrator,” he intoned. In my opinion, this seeming rhetorical flourish is an unserious but dangerous sally into politics – where no judge belongs.

Making his case: In his fight against the carbon tax, Doug Ford conveyed true information about the cost of the carbon tax.

Canada has a so-called “adversarial” system of justice. In it we expect lawyers to represent their clients’ interests and to be their mouthpieces in court; we do not expect them to “speak in the voice of a reliable narrator.” As long as lawyers don’t actually lie to the Court on behalf of their clients, their behaviour is considered professional, no matter how unreliable their narratives. The point of an adversarial system of justice is that when you have clearly identified partisans on each side making their best case to an impartial judge, the truth is more likely to come out in the end.

Politics is an adversarial system, too. In a democracy, political opponents challenge each other’s narratives without compromise, in the hope that the robust clash of ideas will help the voting public come to a better understanding of the issues – and make reasonable decisions in the end. While we consider it a nice-to-have that our politicians be “reliable narrators”, neither our decision-making nor the health of our democracy depend on it. It is the voters who decide which political message to accept; accordingly it is not the role of judges to suppress political messaging they consider unreliable. Respecting democracy and the rule of law should leave judges, at most, the role of policing compelled messaging for outright falsehoods. 

What is Untransparent about “11 cents per litre in 2022”?

At heart, Morgan’s complaint sems to be that the Ford government didn’t do enough to advance the federal Liberal government’s narrative by repeating all of the points that the Liberals want voters to know about. But the Liberals have shown themselves amply capable of getting out their own messages. The Sticker’s purpose is to shed light on the aspects of the federal legislation that the Liberals are mostly silent on. The provincial legislation’s purpose is to combat the federal Liberals’ “unreliable” narrative. The Sticker was carefully tailored to address this narrow but nevertheless pressing and substantial objective – the criterion the courts created to frame the s. 1 Charter exemption regarding free speech. 

To bolster his conclusion that the Sticker does not advance a pressing and substantial government objective, Morgan delved deeply into how the legislation was debated and promoted by the Ford government. He found it significant – and suspicious – that the legislation was enacted “by Parliament” [sic] on May 29, 2019, but the requirement to affix the Sticker to gas pumps did not come into effect until August 30 – close to the start of the federal election campaign! He inferred from this timing that it was more a campaign tactic than a genuine effort to inform the public. Such speculation as to motive should form no part of the reasoning of an important Charter case. Three months is not a long time for indolent government bureaucracies to design, print, and distribute such messages. Nor, following this, did it leave much lead time for gas station operators to affix the Stickers. There is nothing suspicious about the timing, only about the person expressing the suspicions.

Morgan’s final anti-Sticker argument was the manner in which it was defended and promoted by the Ford government. Granted, all sides engaged in strident and partisan political posturing over this controversial public policy. But this is irrelevant to the proper adjudication of the case. Politicians are capable of doing two things at once: advancing substantive policy positions and using differences in policy, style and tactics to demonize their political opponents. Just because rhetoric becomes heated, even vitriolic (as it did in this case), does not render the associated policy insubstantial or non-urgent. If we judged legislation by the worst rhetoric of the political actors defending it, very little government messaging would survive judicial scrutiny.  

Libertarians and conservatives typically favour stricter restraints on compelled messaging by governments. If it were possible to limit government messaging to non-partisan, truthful, public-interest information, most would welcome such a diminution of the privileges of politicians and bureaucrats. No less an authority than the Supreme Court of Canada has declared, “The Charter not only protects people from having to express a message with which they disagree or with which they do not want to associate themselves, but it also guarantees the corresponding right not to have to listen to such a message.”

While the Ford government isn’t appealing the recent court slap-down, the hard-to-remove stickers continue to proclaim the carbon tax’s cost.

Oh, what bliss it would be were the courts to hush the paid political blather on the airwaves and internet. This particular case, however, was not the way to go about it. The cogency of the logic relied upon was questionable and the prospects of judges applying neutrally the principles Morgan adduced across the spectrum of government messaging seem low indeed. And the case moves the seemingly unstoppable march of federal intrusion into provincial jurisdiction yet another step forward, further increasing the dysfunction of our fraying federation. 

Early this month the Ford government announced it would not appeal the Superior Court decision. While that seems unfortunate for Charter jurisprudence, on this one the premier may have the last laugh, should he find himself in a laughing mood. Physically hard to scrape off and apparently quite popular with fuel retailers, the Carbon Tax Stickers are likely to remain on thousands of Ontario pumps. And they already appear to have been quite effective in communicating the Ford government’s narrative about the federal Liberals’ carbon…tax.

Grant A. Brown has a DPhil from Oxford University and an LL.B. from the University of Alberta, taught applied ethics and political philosophy at the University of Lethbridge, practised family law, and currently runs a B&B in Stratford, Ontario.

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