The original, full-length version of this article was recently published in C2C Journal. Jack Wright is a retired litigation lawyerThe Supreme Court of Canada sits at the top of the country’s judicial ladder, but its reasoning isn’t always flawless. Mistakes and inconsistencies in its decisions can ripple through the legal system and spark harmful litigation when these errors are treated as binding precedents. This is what happened with the carbon tax case, Reference re Greenhouse Gas Pollution Pricing Act (2021 ,) which carries profound economic, political, and social implications for Canadians.In Greenhouse Gas, a 7-2 majority upheld the federal carbon tax based on the “national concern” doctrine of the famous “peace, order and good government” clause of Canada’s constitution. Advocates for aggressive climate action quickly framed the decision as a binding precedent, with some courts and environmental groups leaning on Greenhouse Gas to demand a constitutional “right to a stable climate” — as if the courts or Parliament could stabilize the global climate.This wave of “lawfare” depends on the false premise that the Supreme Court’s non-binding comments are legally binding precedents. But this was a “reference” case — a legal opinion requested by governments to determine a constitutional issue. Reference cases are launched at the appeals-court level, but appellate courts lack the evidentiary procedures of trial courts.The Greenhouse Gas decision case hinged on two critical premises that were not proven with material facts. They were wrong, based on faulty assumptions and flawed reasoning.The two key contentions were, first, that climate change poses an existential threat to humanity and second, that Canada’s emissions significantly influence Canada’s climate. Neither is supported by evidence.Taking the second of these assumptions first, Chief Justice Richard Wagner’s majority opinion relied on a fallacy I call the “Carbon Wall.” This is the idea that severely harmful effects of emissions will mostly be caused by — and suffered by — people living closest to the geographical origin of the emissions. It equates carbon dioxide (CO2) with localized pollutants, analogous to river contamination, implying it can be “walled off” by government regulation.If Canada’s senior-most justices understood the basic mechanics of climate, they would have known that virtually the entire cause of Canada’s changing climate — 98.5 percent — comes from outside the country, since Canada generates only 1.5 percent of global CO2 emissions, a minuscule contribution in the context of global climate dynamics. Even if Canada ceased all emissions tomorrow the impact would be negligible, quickly offset by emissions growth from developing nations. Simply put, there was no evidence and no basis for the Supreme Court to find a “national concern” on a discrete Canadian CO2 wall, controllable by the federal government through a carbon tax.The other critical assumption the court got wrong is that climate change presents an “undisputed threat to the future of humanity.”But in fact, many climate experts specifically reject the “undisputed threat” notion. Nobel Laureate William Nordhaus, the Yale University economist considered the “father” of the carbon tax, does so in his book The Climate Casino. Even the UN’s Intergovernmental Panel on Climate Change has written that “for most economic sectors, the impact of climate change will be small relative to the impacts of other drivers” such as population, income and technology.The court’s “undisputed threat” comment seems to rely on an affidavit by John Moffet, a federal government manager. He’s a corporate lawyer by training, with no apparent expertise in climate change causes or impacts, who reportedly played a significant role in crafting the federal carbon tax.Moffet’s affidavit would have been filed as legislative history to provide some context for interpreting legislation and understanding its purpose. There is no expert qualifications process, oral testimony, or cross-examination on such affidavits. Moffet’s document cannot be the foundation for a binding Supreme Court statement about an existential threat to humanity.The judgment in Greenhouse Gas is, in my opinion, 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. The decision is not authority for lower courts to adjudicate the cases that come before them under the guise of saving Canadians from climate change.Unfortunately, the decision is already driving litigation. The case of Mathur v. Ontario, for instance, asks the court to direct the Ontario government to override its own legislated emissions targets and re-direct its resources. Dykstra v. Saskatchewan Power demands that the Court of King’s Bench prohibit expansion of natural gas-fired power generation facilities in the province.We cannot allow single-issue activists (often generously funded by Ottawa) to use the courts to achieve goals that they were denied through the ballot box. Governing inevitably requires difficult trade-offs. Far better for these to be determined by people elected by and accountable to the public than by unelected judges, who are not required to endure the consequences of their decisions.The original, full-length version of this article was recently published in C2C Journal. Jack Wright is a retired litigation lawyer who practised public law with a government legal department and has filed legislative history evidence in various courts.
The original, full-length version of this article was recently published in C2C Journal. Jack Wright is a retired litigation lawyerThe Supreme Court of Canada sits at the top of the country’s judicial ladder, but its reasoning isn’t always flawless. Mistakes and inconsistencies in its decisions can ripple through the legal system and spark harmful litigation when these errors are treated as binding precedents. This is what happened with the carbon tax case, Reference re Greenhouse Gas Pollution Pricing Act (2021 ,) which carries profound economic, political, and social implications for Canadians.In Greenhouse Gas, a 7-2 majority upheld the federal carbon tax based on the “national concern” doctrine of the famous “peace, order and good government” clause of Canada’s constitution. Advocates for aggressive climate action quickly framed the decision as a binding precedent, with some courts and environmental groups leaning on Greenhouse Gas to demand a constitutional “right to a stable climate” — as if the courts or Parliament could stabilize the global climate.This wave of “lawfare” depends on the false premise that the Supreme Court’s non-binding comments are legally binding precedents. But this was a “reference” case — a legal opinion requested by governments to determine a constitutional issue. Reference cases are launched at the appeals-court level, but appellate courts lack the evidentiary procedures of trial courts.The Greenhouse Gas decision case hinged on two critical premises that were not proven with material facts. They were wrong, based on faulty assumptions and flawed reasoning.The two key contentions were, first, that climate change poses an existential threat to humanity and second, that Canada’s emissions significantly influence Canada’s climate. Neither is supported by evidence.Taking the second of these assumptions first, Chief Justice Richard Wagner’s majority opinion relied on a fallacy I call the “Carbon Wall.” This is the idea that severely harmful effects of emissions will mostly be caused by — and suffered by — people living closest to the geographical origin of the emissions. It equates carbon dioxide (CO2) with localized pollutants, analogous to river contamination, implying it can be “walled off” by government regulation.If Canada’s senior-most justices understood the basic mechanics of climate, they would have known that virtually the entire cause of Canada’s changing climate — 98.5 percent — comes from outside the country, since Canada generates only 1.5 percent of global CO2 emissions, a minuscule contribution in the context of global climate dynamics. Even if Canada ceased all emissions tomorrow the impact would be negligible, quickly offset by emissions growth from developing nations. Simply put, there was no evidence and no basis for the Supreme Court to find a “national concern” on a discrete Canadian CO2 wall, controllable by the federal government through a carbon tax.The other critical assumption the court got wrong is that climate change presents an “undisputed threat to the future of humanity.”But in fact, many climate experts specifically reject the “undisputed threat” notion. Nobel Laureate William Nordhaus, the Yale University economist considered the “father” of the carbon tax, does so in his book The Climate Casino. Even the UN’s Intergovernmental Panel on Climate Change has written that “for most economic sectors, the impact of climate change will be small relative to the impacts of other drivers” such as population, income and technology.The court’s “undisputed threat” comment seems to rely on an affidavit by John Moffet, a federal government manager. He’s a corporate lawyer by training, with no apparent expertise in climate change causes or impacts, who reportedly played a significant role in crafting the federal carbon tax.Moffet’s affidavit would have been filed as legislative history to provide some context for interpreting legislation and understanding its purpose. There is no expert qualifications process, oral testimony, or cross-examination on such affidavits. Moffet’s document cannot be the foundation for a binding Supreme Court statement about an existential threat to humanity.The judgment in Greenhouse Gas is, in my opinion, 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. The decision is not authority for lower courts to adjudicate the cases that come before them under the guise of saving Canadians from climate change.Unfortunately, the decision is already driving litigation. The case of Mathur v. Ontario, for instance, asks the court to direct the Ontario government to override its own legislated emissions targets and re-direct its resources. Dykstra v. Saskatchewan Power demands that the Court of King’s Bench prohibit expansion of natural gas-fired power generation facilities in the province.We cannot allow single-issue activists (often generously funded by Ottawa) to use the courts to achieve goals that they were denied through the ballot box. Governing inevitably requires difficult trade-offs. Far better for these to be determined by people elected by and accountable to the public than by unelected judges, who are not required to endure the consequences of their decisions.The original, full-length version of this article was recently published in C2C Journal. Jack Wright is a retired litigation lawyer who practised public law with a government legal department and has filed legislative history evidence in various courts.
