Brown Contra Mundum

Last week I wrote about the Canadian Supreme Court's deciding that the carbon tax is constitutional, with particular focus on the majority decision, authored by Chief Justice Wagner. Today I would like to briefly point out the strong dissent by Justice Russell Brown.

In a notable contrast with the majority opinion, which is full of pearl clutching about the "existential threat" of climate change, Justice Brown focuses chiefly on the law itself.

[N]either the Attorney General nor the majority fairly or completely describes what the Act does.... they downplay significantly what [it] actually authorizes the [Federal government] to do, and ignore the detailed regulatory intrusion into matters of provincial jurisdiction [it] authorize[s]... The result is a permanent and significant expansion of federal power at the expense of provincial legislative authority ⸺ unsanctioned by our Constitution , and indeed, as I will explain, expressly precluded by it.

The majority, he avers, misapplies the Peace, Order and Good Government clause of the Constitution, which was intended to govern instances where provincial governments couldn't act because they lacked the jurisdiction. This law, however, "is premised on provincial legislatures having authority" to act, as it sets a minimum carbon pricing standard to which they must conform, or else be subject to a federal tax. This is not at all how Canadian government is supposed to work, and Brown describes it as a “new... supervisory model of Canadian federalism" which "rejects the Constitution and rewrites the rules of Confederation.”

Now, it could be argued that this doesn't matter. Trudeau got his carbon tax, the fight is over. But Brown's dissent is garnering some attention as a rare challenge to Canada's legal monoculture. Sean Speer says that Brown's dissents are becoming "an intellectual beachhead for a nascent conservative legal movement," similar to that which began in America in the 1980s, but which has never migrated north.

One criticism I received about Friday's blog post was that my shot at Stephen Harper's not reorienting Canada's judiciary was unfair, since there simply weren't enough conservative lawyers for him to appoint. Well, to his credit, Harper did appoint Brown, and if Speer is correct, his work is gaining recognition among young lawyers who recognize how shallow their country's constitutional jurisprudence generally is. Rome wasn't built in a day, and countercultural revolutions can take time.

In the meantime, here's hoping that Brown can help nurture the kind of a constitutional revival which Antonin Scalia did in the States. If so, maybe the next carbon tax case will go the other way.