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Ottawa’s carbon pricing law valid, Ontario’s top court rules

Screen Shot 2019-06-28 at 11.18.48 AMOntario’s top court has ruled the federal government’s carbon charge is constitutionally sound.

In a split decision, the five-judge panel rejected a challenge from Premier Doug Ford’s government to the validity of the carbon-pricing law.

Ottawa maintains it had to act to deal with the urgent threat of climate change as an issue of national concern.

The federal government said its approach-imposing a levy on gasoline and fossil fuels-respected provincial jurisdiction.

Ontario and three other provinces argued the Liberal government under Prime Minister Justin Trudeau overstepped its authority in imposing the charge.

Last month in a split decision, the Saskatchewan Court of Appeal sided with Ottawa in a similar challenge.

The Doug Ford government challenged the constitutionality of the carbon-pricing law before a five-judge panel in April.

It argued the Liberal government under Prime Minister Justin Trudeau overstepped its authority in imposing the charge.

 

The federal government maintains the levy in Ontario (currently four cents a litre on gasoline) is a regulatory charge designed to change behaviour in favour of lower greenhouse gas emissions. Ontario’s Progressive Conservative government called the charge an illegal tax—another violation of the Constitution.

During four days of submissions, Ontario insisted the Greenhouse Gas Pollution Pricing Act would undermine co-operative federalism by allowing Ottawa to overstep the dividing line between federal and provincial spheres of authority.

Provincial lawyers told the Court of Appeal the federal government would end up with the power to regulate almost every facet of life, such as when you can drive, where you can live, or whether you can have a wood-burning fireplace. They also argued the province has its own approach to the climate-change issue.

For their part, federal lawyers argued the province was fearmongering. The law, they said, would not result in an expansion of constitutional powers that would give Ottawa carte blanche to regulate issues that fall squarely within provincial jurisdiction.

The act, which took effect April 1, was a legitimate response to potentially catastrophic climate change, federal lawyers argued.

The act currently only applies in four provinces—Ontario, Manitoba, New Brunswick and Saskatchewan—which Ottawa says don’t meet national standards.

In all, 14 interveners—among them some provinces, Indigenous groups and environmental and business organizations—lined up to defend or attack the federal law, with most siding with Ottawa. Indigenous groups, for example, stressed their vulnerability to global warming that they said could destroy their way of life.

Some observers said the Ontario challenge was more about politics than the environment.

The issue is expected to be ultimately decided before the country’s top court. The Supreme Court of Canada has already said it hear Saskatchewan’s challenge in December, after the October federal election.


Quebec judge rules law that prevents vaping from being advertised to smokers violates “freedom of expression”

Quebec is within its rights to legislate on vaping, but a provision banning demonstrations of vaping products inside shops or specialized clinics goes too far, a Quebec judge has ruled.

In a judgment released Friday, the court also invalidated another section of the provincial law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

A legal challenge was brought by an association representing Quebec vape shops and the Canadian Vaping Association.

They argued that parts of the Tobacco Control Act adopted by the Quebec government in 2015 violated their fundamental rights, notably freedom of expression.

Justice Daniel Dumais has suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec association had also argued the province had overstepped its legislative authority by including vaping products.

However, Dumais, who heard arguments in the province’s Superior Court over 10 days last December, ruled Quebec had a right to legislate on the issue.

“Overall, the law is constitutional,” Dumais wrote in a lengthy decision May 4. “Quebec has jurisdiction to legislate as it has done. The Quebec legislature has jurisdiction and could validly pass the contested laws.”

The wide-ranging law was designed in part to put the popular e-cigarette on the same footing as other tobacco products and anti-tobacco groups argued that e-cigarettes needed to be subjected to regulations to prevent youth from using it.

But the judge agreed to strike down two sections of the law that prohibited the demonstration of vaping products inside speciality shops and smoking cessation clinics.

The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The Canadian association had argued those sections of the law violated the right to integrity and personal security as well as freedom of expression. The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The judge wrote that while the provisions take into account the well being of non-smokers, it seemed to forget the rest of the population -including those smokers who are looking to quit.

“The problem with the current restrictions is that the public – particularly smokers – do not distinguish between smoking and vaping,” the judge wrote. “They must be permitted to know the difference. Rather than silence, it is sometimes necessary to educate and let people know that vaping exists first and foremost for smokers.”