The Supreme Court of Canada sits at the apex of the Canadian judicial ladder. But like any group of humans, the reasoning of its nine justices isn’t always right. What happens if the court’s reasons for decision include some mistakes and some confusing or inconsistent comments? Are all of Canada’s lower courts bound by these “precedents”? The short answer is no: a court’s decision is only precedent-setting for what it actually decided, and not concerning all of the detailed explanations for how the court got there. Still, erroneous reasoning at the top can create major problems as it often triggers unnecessary and harmful litigation that treats errors as binding precedents. That has proved to be the case with the errors in a crucial case that has profound economic, political and social implications affecting all Canadians.
Advocates for ever-increasing climate action have pounced on the decision in the case known as Reference re Greenhouse Gas Pollution Pricing Act, 2021 as precedent to justify further climate-related litigation. Shortly after Greenhouse Gas came out, for example, law professors Nigel Bankes (University of Calgary), Andrew Leach (University of Alberta) and Martin Olszynski (University of Calgary) predicted in a paper that the decision had precedential value: “While not the central issue, the majority’s holdings with respect to climate change go beyond mere obiter,” or judicial comments not essential to a decision and therefore creating no binding precedent, “and are bound to influence other types of climate litigation in Canada…”
Canadian law professors (bottom left to right) Nigel Bankes, Andrew Leach and Martin Olszynski have said the 2021 Supreme Court decision in the Greenhouse Gas case will serve as a precedent in future climate litigation. At top, the Imperial Oil refinery near Edmonton, Alberta. (Sources of photos: (top) Shutterstock; (bottom left) University of Calgary; (bottom middle) University of Alberta; (bottom right) University of Calgary)Some Canadian courts have since accepted this characterization and treated Greenhouse Gas as creating legally binding precedents about the causes and effects of climate change. The Supreme Court’s supposed “holdings” on climate change have been incorporated in litigation brought by environmental non-governmental organizations (ENGOs) against the federal government and several provinces demanding a constitutional “right to a stable climate”.
In Mathur v. Ontario, for example, seven young Ontarians (including two minors) are claiming their Charter-protected rights to life, security of the person and equality are being infringed because provincial energy policy does not fight climate change vigorously enough. If the litigation (currently at the trial level) succeeds, it could force changes to how Ontario produces and distributes energy, effectively dictating ideological policy preferences via the courts and potentially costing taxpayers and ratepayers further billions of dollars.
Such “lawfare”, as these kinds of tactics have come to be known, continues largely because of the non-binding comments in Greenhouse Gas. But the motivating claim – that these explanatory comments are binding precedents – is wrong. They also misunderstand the special nature of a reference case.
The Greenhouse Gas Reference Case
In Canadian law a reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue, usually the constitutionality of particular legislation. The opinion given by the Supreme Court is in the form of a judicial decision; strictly speaking, it is not legally binding, although no government has ever ignored such an opinion.
What did the Supreme Court of Canada rule in 2021 about the federal carbon tax?
In Greenhouse Gas, the provinces of Ontario, Saskatchewan and Alberta sought the Supreme Court’s opinion on the constitutionality of the federal carbon tax, with all arguing that it is unconstitutional. In March 2021, a 7-2 majority upheld as constitutional Ottawa’s imposition of “backup” federal carbon pricing in any province which has no equivalent provincial measures. It did so based on the national concern doctrine (under the “peace, order and good government” clause in Canada’s Constitution).
In doing so, the majority unusually delved into the wisdom of climate and energy policy, which requires complicated scientific knowledge and resolving conflicting political priorities. The majority assumed – without any evidence – some crucial scientific facts about the causes and effects of climate change. There was no such evidence because a reference case is initiated at the appellate level and, unlike lower trial courts, appellate courts normally have no fact-finding function.
The Carbon Wall fallacy leads to the error that the federal government can more easily control ‘grievous’ interprovincial impacts caused by carbon dioxide emissions from adjacent provinces. In essence, that government action can ‘wall off’ the effects of greenhouse gas emissions around their area of origin.
The majority made two important scientific assumptions. First, it assumed that climate change poses a threat to the survival of humanity. Second, it assumed that Canada’s climate is substantially controlled by Canada’s own emissions of greenhouse gases, chiefly carbon dioxide (CO2). Based on these assumptions, it would follow that Canada can avert the harms of climate change to Canadians by reducing Canadian CO2 emissions through a carbon tax.
I disagree with Bankes and his colleagues that the Supreme Court’s climate change comments are precedential and must be followed by lower courts. I will not make these legal arguments here as that would only interest lawyers. Interested readers can find two good sources here and here. Suffice it to say that the high court’s two critical premises around which the whole reference case hinged were not proven material facts because there was no evidence before the Court. They were merely the untested assumptions of the seven justices. The first of these key assumptions is highly arguable; the second is outright fallacious. I will address the second of these assumptions first.
The Fantasy of a “Carbon Wall” Around Canada and its Provinces
The majority’s written decision, authored by Chief Justice Richard Wagner, contains a crucial assumption about the physics and chemistry of climate change. Although the majority noted (para. 12) that “climate change has no boundaries” and that (para. 187) it is “an uncontested fact that the effects of climate change do not have a direct connection to the source of [greenhouse gas] emissions,” it also contradicted its own statements, creating confusion. It held that severely harmful effects of emissions will mostly be caused by – and affect – people situated closest to the geographical origin of the emissions. This is a fallacy which I have termed the “Carbon Wall”.
The Carbon Wall fallacy leads to the error that the federal government can more easily control what the majority termed “grievous” interprovincial impacts caused by CO2 emissions from adjacent provinces. In essence, that government action can “wall off” the effects of greenhouse gas emissions around their area of origin. In fact, there is no CO2 “wall” around any country, nor can one ever be placed around a province by judicial finding or bureaucratic regulation. Unlike local pollutants, CO2 molecules emitted in the United States or China can flow over Canada and all around the planet, and vice-versa. Weather may be largely local, but climate is ultimately global, and so is the movement (and any climate effects) of CO2.
The fallacy that local CO2 emissions cause local climate change that Canadian governments can solve is a common misunderstanding. It is reflected in countless dire opinion pieces in prominent news media connecting, for example, insufficient Canadian support for the carbon tax with Canadian wildfires. Or in beating the drum for additional rapid Canadian decarbonization with no mention of rapid emissions growth from the world’s larger emitters. National reduction targets become the only ends. It is no wonder that Canadians are left with the illusion that Canada can do something significant to mitigate climate change within the country’s own boundaries.
From the majority’s comments it is clear that Canada’s top justices envision CO2 as flowing over Canada’s surface similar to pollution flowing down a river that happens to cross a provincial boundary. Indeed, referring to three previous Supreme Court decisions dealing with polluted waters, the majority stated in Greenhouse Gas (para. 195):
“In other words, this is a true interprovincial pollution problem of the highest order. This Court’s decisions have consistently reflected the view that interprovincial pollution is constitutionally different from local pollution…Second, the proposed federal matter in the instant case relates only to the risk of non-cooperation that gives rise to the threat of grievous extraprovincial harm. In other words, this matter would empower the federal government to do only what the provinces cannot do to protect themselves from this grave harm, and nothing more.” [Emphasis added]
This mistake is found repeatedly, including in para. 185, 186, 192, 198 and 206.
Thus, the majority assumed that climate change consists of CO2, following its emission, having a direct noxious climate impact upon geographically contiguous areas. We are not told, however, what particular form that harm takes, how it is caused or on what evidence it is based. But if Canada’s senior-most justices truly understood the basic mechanics of climate, they would have realized that virtually the entire impact of which they speak must come from outside the country, since Canada generates only 1.5 percent of global CO2 emissions, making each province only a tiny contributor to total global emissions.
If Canada somehow disappeared off the face of the Earth tomorrow, the reduced emissions would very rapidly be made up by increased emissions from the two-thirds of the global population living in developing countries and increasing their use of coal for electricity generation and heating. As this recent C2C article notes, simply the increase in CO2 emissions from China alone over the next decade will be 90 times as great as the combined annual emissions from fossil fuel combustion to generate electricity in Canada.
The majority also commented in para. 195 that the “true interprovincial pollution of the highest order” was “uncontested evidence.” But there is no mention at all of that evidence in the decision, nor is it found in any other document before the court. It seems inconceivable that the dissenting provinces would have admitted to province-to-province pollution.
Other Fallacious or Unsupported “Carbon Wall” Thinking
The majority also incorrectly suggested (para. 10) that, “The effects of climate change have been and will be particularly severe and devastating in Canada.” There is no evidence to support this assumption. While basic climatology holds that the Earth’s polar regions will warm more than lower latitudes, this is not unique to Canada. And rising levels of CO2 have also generated benefits through increasing agricultural productivity and forest and plant growth.
This positive phenomenon has become too big to ignore, with a number of documentaries, papers and articles commenting on a marked “greening” of the Earth over the past 40 years. This article published two years ago in Nature, for example, notes matter-of-factly that “the earth has been experiencing widespread vegetation greening since the 1980s, primarily due to large-scale climate change and CO2 fertilization effects.” Even the UN’s Intergovernmental Panel on Climate Change (IPCC) has taken note. “Causes of greening include combinations of an extended growing season, nitrogen deposition, Carbon Dioxide (CO2) fertilisation, and land management (high confidence),” this IPCC document states. “Globally, vegetation greening has occurred over a larger area than vegetation browning (high confidence).”
Another fallacy comes immediately after the Supreme Court’s “particularly severe and devastating” statement, where the majority asserts that Canadian temperatures since 1948 have risen at “roughly double the global average rate of increase.” This particular claim for a made-in-Canada crisis has been wrongly promoted by Environment and Climate Change Canada and repeated by editorial boards.
It is only possible through the tricky use of the word “average”. The global average referred to includes both the land and the oceans, and land surfaces warm (or cool) faster than oceans. The Earth’s surface is only 30 percent land and 70 percent ocean, and that combined with the differential warming rate means that land temperatures alone change about twice as fast as the land-plus-ocean average temperature.
All that the Supreme Court’s ‘twice as fast’ alarm about Canadian warming shows is that Canadians live on land and not the ocean. The statement, while technically true, communicates nothing of significance. But it is highly misleading.
The IPCC itself has noted in this Special Report (page 9) that since preindustrial times, which includes a long interval before greenhouse gas emissions started rising, “The land surface air temperature has risen nearly twice as much as the global average temperature.” NASA data spanning from 1881 to the present confirm that the ocean surface has warmed by about 0.6° C while the land surface has warmed by about 1.8° C. The weighted average of the two implies overall warming of about 1.0° C. Thus, again, the land mass as a whole warmed at nearly twice the global average.
All that the Supreme Court’s “twice as fast” alarm shows is that Canadians live on land and not the ocean. The statement, while technically true, communicates nothing of significance. But it is highly misleading in its use, apparent intent and effect, which is to establish that there is a “carbon wall” around Canada and, ergo, that Canadian climate action will fix climate change in Canada.
Why is the Supreme Court climate change ruling controversial?
Climate Change is Not an Interprovincial Pollution Problem
Any legal pronouncement is only as good as the facts upon which it is based. The Supreme Court majority’s assumption that the effects of climate change can be walled off bureaucratically is wrong because it fails to recognize that any harm caused by the global nature of climate change is not a provincial (or even a national) problem but a global collective action problem.
The collective action problem is a structural one. The only way that the decarbonization efforts of a given country or region can matter is if there exists an internationally coordinated and enforceable emissions reduction scheme of universal and equal application. It seems as if Greenhouse Gas assumed that such a scheme existed or was soon possible. Climate change, according to the majority (para. 194), “demands a coordinated international response.” But, as we shall see, the UN’s 2015 Paris Agreement certainly doesn’t do that. A coordinated scheme is all-but impossible without a single planetary government, which doesn’t exist and isn’t likely to.
Contrary to accepted wisdom, UN’s 2015 Paris Agreement set no quantified national targets for emissions reduction and no binding commitments; Canada’s policies are a choice, not an international obligation. Shown, the adoption of the Paris Agreement at the UN Climate Change Conference (COP21) in Paris, France, December 12, 2015.The majority recognized the problem without drawing out its full implications. For carbon pricing to succeed, it ruled (para. 185), Canada required a central coercive mechanism like the federal government: “This illustrates the stark limitations of a non-binding approach.” The Supreme Court was right on that point, but it failed to take that concept to the international level or to understand that the Paris Agreement is non-binding and has no enforcement mechanism.
There was thus no evidence and no basis for the Supreme Court to find a “national concern” on a discrete Canadian atmosphere, controllable by the federal government through a carbon tax. But what of a possible national concern that Canada should honour its international obligations?
Did the Paris Agreement Impose International Obligations upon Canada?
We hear often in our news media that the Paris Agreement created “international obligations”. But there are many misconceptions about this agreement. Paris was not like the earlier, 1997 Kyoto Protocol, which amounted to an international treaty that included binding arrangements. Kyoto proved a failure. The U.S. Senate refused to give its required consent, and Canada eventually withdrew.
A new legal arrangement was introduced for the Paris Agreement. U.S. President Barack Obama insisted on an executory agreement without binding commitments that would need U.S. Senate approval. Except for certain reporting requirements, the Paris Agreement’s language is aspirational. It utilizes a simple pledge and review method, with no oversight, merely a planetary stocktaking (i.e., another gigantic and loudly hyped conference) every five years.
Canada is not bound in any meaningful way by the Paris Agreement, its contents should not influence decisions by Canadian courts, and the Supreme Court majority in Greenhouse Gas found nothing from the Paris Agreement that would be meaningfully precedential for those seeking to save themselves from ‘climate damage’.
Under the Paris Agreement, nations are only required to submit a plan of their own “nationally determined contributions” (NDCs). Developed-country parties to the agreement (such as Canada) “should” (not “shall”) establish economy-wide targets (there are no sectoral targets stipulated). The particular mitigation tool of carbon pricing is not mentioned, much less stipulated, and the U.S. and many other nations have not imposed a carbon tax. The Paris Agreement sets no quantified national targets.
Canada’s NDC is thus a policy choice of the current federal government, and subject to change. Canada’s current policies are not its international obligations. The only obligation that could be construed is to make best efforts in light of Canadian social and economic costs and benefits. Another political party in office might very well reconsider the current plan entirely, according to its own sense of trade-offs. What works best, and in conjunction with what other measures, is a matter of some complexity and controversy; one possible policy approach was proposed in this recent C2C article.
Even the familiar goal of holding the increase in global average temperature to less than 2° C above pre-industrial estimated levels and pursuing efforts to limit it to 1.5° C is not contained in binding language (per article 2.1: “This Agreement… aims to strengthen”). Nor do these temperature goals even have a scientific basis, but are mere political aspirations.
Then-U.S. president Barack Obama (top) insisted the Paris Agreement come without binding commitments that would require Senate approval; his successor, Donald Trump (bottom), pulled the U.S. out of the agreement in 2020. (Sources of photos: (top) United Nations Photo, licensed under CC BY-NC-ND 2.0; (bottom) Gage Skidmore, licensed under CC BY-SA 2.0)
In summary: Canada is not bound in any meaningful way by the Paris Agreement, the Paris Agreement’s contents should not influence decisions by Canadian courts, and the majority in Greenhouse Gas found nothing from the Paris Agreement that would be meaningfully precedential for those seeking to save themselves from “climate damage”.
The Assumption of an Existential Threat to Humanity
Climate change, Greenhouse Gas declares emphatically (para. 167), is “an existential challenge…a threat of the highest order to the country, and…[an] undisputed threat to the future of humanity [that] cannot be ignored.” It would seem to follow from this resounding pronouncement that the planet requires rapid decarbonization, with a massive and very costly diversion of resources to do so, and without regard to the cost trade-offs for other important human needs such food, housing and transportation or for such matters as safety and security.
Weighing such competing human needs is a political process, not a judicial judgment. Yet the Supreme Court’s assertions of catastrophe stand alone in mid-judgment, devoid of expert sources, of any investigation of facts, or of any reasoning from facts. This is unfortunate, because the court majority’s seemingly unqualified belief is anything but “undisputed”.
How is climate change affecting Canada?
Many experts specifically dispute that humanity’s survival is at stake. Nobel Laureate William Nordhaus, the Yale University economist who is considered the “father” of the carbon tax, does so in his book The Climate Casino (page 134). Nor does the IPCC itself make such a claim. As Roger Pielke, Jr., Professor of Environmental Studies at the University of Colorado, notes, “The following words do not appear in the IPCC assessment: existential, apocalyptical, catastrophic, emergency.” Pielke has also pointed out that the news media’s narrative of alarm is inconsistent with what the IPCC says about extreme weather resulting from climate change.
In the IPCC’s 2014 report from its Working Group II, the last time it engaged a group of economists to undertake a comprehensive assessment, its top conclusion concerning the economic impacts of climate change was stated as follows (Chapter 10, page 662): “For most economic sectors, the impact of climate change will be small relative to the impacts of other drivers. Changes in population, age, income, technology, relative prices, lifestyle, regulation, governance, and many other aspects of socioeconomic development will have an impact on the supply and demand of economic goods and services that is large relative to the impact of climate change.” [Emphasis added]
If this is the official thinking of the UN’s top body investigating climate change, then courts of law clearly have no business simply assuming that climate change is an existential threat to humanity, nor crafting decisions built around such an assumption.
In The Climate Casino, Nordhaus writes (page 69) that assessing future climate change impacts “is the most difficult and has the greatest uncertainties of all processes associated with global warming.” When coming to a decision of an existential threat, then, a court of law would do well to consider evidence. In this case, the UN’s top body investigating climate change shows no indication of a catastrophic end for humanity.
Was There Even an Evidentiary Basis for Determining an Existential Threat?
Contrary to some academic thought, the Supreme Court’s majority never claimed to have done an evidentiary analysis. Rather, they simply said (para. 167), “All parties to this proceeding agree that climate change is an existential challenge.” But did they?
Because reference cases lack formal statements of claim, an admissions process or oral evidence and cross-examination, how could there have been such an agreement? The parties only filed written legal arguments. Three provinces opposed the federal legislation. On this subject, Saskatchewan merely said, “Global climate change is a significant societal problem.” Ontario said climate change was “a real and pressing problem that must be addressed.” And Alberta didn’t see the seriousness of climate change as an issue even to be commented on. These are hardly admissions of a threat to human survival – let alone formal agreement.
Even had there been an oral admission of some sort during the hearing, that would be no basis upon which to provide formal legal advice in an important constitutional reference. The materials filed preceding oral arguments were all directed to the proper delineation of the national concern doctrine of constitutional law (which is outside the scope of this article). Lawyers for the various parties may well not have been any more familiar with the factual complexity of climate change than what the average person learns from Canadian mainstream media. And the provinces’ lawyers were likely not to have been briefed or received instructions on climate science prior to the hearing.
As Greenhouse Gas involved no evidentiary procedures, then what could have been the source of the Supreme Court’s ‘existential threat’ declaration? A search of the court files shows that this was assembled from an affidavit in Canada’s Record by a federal manager, John Moffet, an assistant deputy minister with Environment and Climate Change Canada.
But even if there had been oral admissions (which is doubtful), factual admissions (page 143), as we have noted above, are only provisional for that proceeding. They are not proven material facts. Nor are they precedential.
The Thin Reed of the Court’s “Existential Threat”
Law professors, as noted above, as well as lower court judges (for example here and here) have wrongly treated Greenhouse Gas as having made a factual finding of an existential threat to human life. What could be their argument? They point to three paragraphs (9-11) in the decision’s Background section asserting a range of climate change impacts. These assertions were sufficient, the argument goes, that although not specifically claiming an existential threat, they give rise to the inference of one.
The Background comes near the beginning of the decision, far from the much later assertion of an “existential threat” declared in para. 167. One could assume from reading only the Background that Justice Wagner and his concurring justices were merely reciting facts determined through separate evidentiary procedures and argument, to be discussed later in the decision. But the majority provided no source for anything stated in the Background. And as Greenhouse Gas itself involved no evidentiary procedures, then what could have been the source of the “existential threat” declaration?
A search of the court files shows that the Background (and other factual matters) was assembled from an affidavit in Canada’s Record by a federal manager, John Moffet, an assistant deputy minister with Environment and Climate Change Canada. According to Moffet’s affidavit, he “led the development of the federal GHG emissions pricing system, including development of the Greenhouse Gas Pollution Pricing Act.” He is a corporate lawyer by training, with no apparent expertise in climate change causes or impacts.
The majority’s Background is a collation of some four different paragraphs from Moffet’s affidavit. Clauses have been reorganized and transposed. One matter has been exaggerated. The majority’s aforementioned statement of climate change’s effects being “particularly severe and devastating in Canada” was enhanced from Moffet’s less incendiary “particularly significant impact in Canada”. Para. 9 of the decision is a mixture of clauses taken mostly from para. 14 and 18 of Moffet. Para. 10 of the decision is a mixture of para. 18 and 20. Para. 11 starts off with material from the manager’s para. 14 and ends with portions of para. 25. In all instances, the origins are recognizably Moffet’s affidavit.
Suffice it here to note that Canadian evidentiary rules do not allow for reliance upon a federal government manager’s affidavit for dispositive proof of an existential threat to an entire nation and indeed the whole planet. Moffet was neither disinterested in the dispute nor an expert on any aspect of climate science or any related scientific discipline that would qualify him as an independent expert witness.
Moffet’s affidavit would have been filed simply as legislative history to provide the court with context for interpreting legislation and understanding its purpose. A legislative history affidavit provides what are known as legislative facts – as opposed to adjudicative facts (deciding facts). Legislative facts are exempt from normal evidentiary procedures because they have less probative merit. Such an affidavit and its exhibits are normally just filed, and there is no testimony, expert qualifications process or cross-examination, because none is called for. Moffet may well be a capable federal government manager, but his affidavit is not that of a disinterested actor and ought not to stand as the foundation for any binding statement about the existence of an existential threat.
What is the effect of climate change on Canada’s policies?
There is no sense in parsing each of the assertions made by the majority in the Background, quite a few of which are highly questionable. But there is no existential threat inference to be drawn even if all are accepted. Climate change may be a serious problem, but it is only one among many other serious and resource-consuming human problems to be weighed and balanced.
The Unfolding Danger in the Supreme Court’s Climate Assumptions
If the Supreme Court of Canada chooses to evaluate complex climate policy in future (which the Court really lacks the institutional capacity to do), it should at least make arrangements for a full evidentiary record. For climate change, that would be enormous and would take months of hearings. A Royal Commission would be better placed to handle such a mission.
But judgments like Greenhouse Gas are wholly inadequate. It contains no true factual findings of an existential threat to humanity, or of a Carbon Wall around Canada, or of a possible Carbon Wall controllable by federal regulation around each of our provinces. There is no federal claim to be saving Canadians from interprovincial climate “pollution” and only a diffuse and very insignificant Canadian contribution to overall planetary climate change. Thus, the majority’s assumptions cannot serve as authority for the lower courts to adjudicate the cases that come before them under the guise of saving Canadians from climate change.
We cannot allow single-issue adherents (often wielding generous federal funding) to repurpose our courts on pretextual bases and achieve goals that they were denied through the ballot box.
The matter is of some urgency – because lower courts have already begun to do so. The assumptions and assertions in Greenhouse Gas are being exploited in litigation and could do great damage if not brought in check. Five cases have been launched to date, all based on the Canadian Charter of Rights and Freedoms (three include the claims of children). While two of the five have foundered, three are still alive.
La Rose v. Canada was brought by a group of Canadian youth, contending that Canada has failed to address the problem of climate change and demanding that the courts direct the federal government to create a “Climate Recovery Plan”; after nearly failing before the Federal Court of Appeal, it has been sent back down for trial. Dykstra v. Saskatchewan Power, filed in Court of King’s Bench in October, is demanding the court prohibit expansion of natural gas-fired power generation facilities in the province.
The Court’s Greenhouse Gas judgment is wholly inadequate, the author states, containing no true factual findings of an existential threat to humanity, or of a Carbon Wall around Canada, or of a possible Carbon Wall controllable by the federal government; it must not be accepted as precedent by lower courts. (Source of photo: European Greens, licensed under CC BY 2.0)
The most advanced of the five cases is the above-mentioned Mathur v. Ontario. The litigants are asking the court to direct the Government of Ontario to ignore its own legislated targets for CO2 emissions and instead implement a “science-based target…consistent with Ontario’s share…necessary to limit climate change to the Paris Standard.” The lawsuit thus apparently incorporates all the key fallacious or unfounded assumptions in Greenhouse Gas. If successful, this action could substantially realign Ontario’s energy regulation and infrastructure, and reallocate Ontario’s resources further in support of action desired by single-issue supporters.
In defending against these claims, one can hope that the attorneys general of the various provinces (and, hopefully, the next federal government) submit more robust summary applications on what lawyers call justiciability – a determination of whether issues of public concern are properly actionable in the courts to begin with. There is no Canadian carbon wall and Canadian courts have no jurisdiction over the rest of the planet.
Can Canada solve climate change by reducing emissions?
We cannot allow single-issue adherents (often wielding generous federal funding) to repurpose our courts on pretextual bases and achieve goals that they were denied through the ballot box. Governing inevitably requires difficult trade-offs to be made. Far better for those trade-offs to be determined by those elected by and accountable to the public than by unelected judges, who are not required to deal with the consequences of their decisions.
Jack Wright is a retired litigation lawyer who practiced public law with a government legal department and who has filed legislative history evidence of the sort mentioned in this article in various courts.
Source of main image: Pexels.
