O’Toole's Green Hubris

Dan McTeague, of Canadians for Affordable Energy, is dead right about Erin O'Toole's screw-ups which cost him the recent election:

O’Toole’s advisers claimed that the previous CPC campaign of Andrew Scheer had too many votes in the wrong places (Western Canada and rural Ontario) and not enough votes distributed in seat-rich (largely) urban eastern Canada. The solution: go green! Support a carbon tax and related madness. Pander to Toronto. Pander to Quebec. Then win. Here was my favourite quote attributed to an O’Toole insider, about how Conservative MPs should accept the strategy: [they’re] not willing to give up five points (in a Western riding) in order to give that to someone in Ontario for us to win there?” In other words, the CPC had “votes to burn” in Western Canada, and burn them they must in order to win over the “green” voters of Ontario and Quebec.....

In the end, CPC votes were indeed burned in Western Canada: the CPC lost 13.7% of the vote, two more seats in Edmonton and one more in Calgary. The Liberals are back in Alberta! In British Columbia, the CPC shed 70,000 or so votes from the previous election and lost 4 of its 7 CPC MPs in the Greater Vancouver Area. Altogether – so far – the CPC has lost 7 seats in the urban west, with the possibility of another loss in Winnipeg (pending a judicial recount).... But did the Western losses give gains in Ontario? The CPC picked up three new ridings in Ontario, but lost two Toronto area MPs, for a net gain of one. So, down three in Alberta, and up one in Ontario, for a net loss of two seats. And Quebec? The Tories went from ten seats to … ten seats. Zero gain.

McTeague suggests that these numbers need to be front and center as the CPC debates keeping O'Toole on as leader while his Red Tory team tries to spin the recent electoral showing as a success. Read the whole thing.

Trudeau Holds On and Other Election Notes

Just an update on yesterday's election in Canada, where the vote count is still ongoing, but the result is more or less determined -- it looks like it will be a Liberal minority government... just like last time. It is, in fact, hard to overstate how like last time it is:

Two quick notes to follow-up on my election article this past weekend.

First, it's nice to see the enviro-activist Tory insiders I mentioned --  Ken Boessenkool, Mark Cameron, and Howard Anglin -- wind up with egg on their faces. Their solution to the outcome of the 2019 election, when the CPC picked up the vast majority of seats west of Ontario, winning the national popular vote but losing overall, was to encourage the party to "Go Green," with the intention of flipping seats in the Greater Toronto Area. Well, the Conservatives went all in on their advice, and even so it looks like the Liberals have once again swept the GTA. Nice work, fellas.

Second, as Holly Doan points out, current estimates peg turnout at less than 59 percent of eligible voters, lowest in Canadian history and about 8 percent lower than the 2019 election. Some of this is Covid anxiety of course, but even so, this suggests a dispirited electorate, unhappy with the options available to them. Not that we should be surprised by this -- The Toronto Star reported a few days ago that Conservative campaigns were seeing a notable lack of enthusiasm, especially in Ontario, where some ridings were unable to attract more than a handful of volunteers. For all of the belly-aching about the populist People's Party of Canada splitting the vote and tipping right-of-center seats to the Liberals, had the CPC given voters a reason to go to the polls for them, they could probably have sent Trudeau packing.

In my piece I suggested an approach or two that might have been successful -- namely really representing the views of their base rather than running from them and pushing back on the Liberals' environmental policies for the pain they cause the average Canadian. This approach might still work in the future, especially as Trudeau's policies continue to damage the economy and slow recovery, post-Covid. But I don't think Erin O'Toole is capable of making that case.

My advice to the Tories would be: give old Erin the boot, tear the party down to the studs (a different kind of Great Reset, if you will), and start over by playing to your strengths. It isn't like you've got much to lose.

But Is O'Toole Any Better?

The Canadian Federal election is taking place on September 20th, and it seems harder than usual to follow what is going on up there. Recent polling suggests that the Conservatives and Liberals are more or less neck-and-neck, with the NDP pulling in third as expected, but with a surprisingly strong 20 percent share of the projected vote. Why so close? Well, it's partly because of the nature of the contemporary Canadian electorate -- the 2019 election, at least by popular vote, was a nail-biter as well. But it is also likely because the basic positioning of the major parties are so similar that you'd need to be a scholastic philosopher to determine the difference between them.

This should come as no surprise as far as two of those parties are concerned. The brains behind current prime minister Justin Trudeau, knowing well that the resurgence of the NDP was key to Stephen Harper's electoral victories in the early aughts, have continued moving leftward to prevent Jagmeet Singh's iteration of the party from bringing about a similar result. And, anyway, two leftwing parties jockeying for position as the true party of the left is so commonplace as to be almost not worth commenting upon.

But a notionally right-of-center party doing so? That's the puzzler.

O'Toole: Maybe inject some principles while you're at it.

Erin O'Toole won last summer's race for Conservative leader running as "True Blue O'Toole," a patriotic military man who was going to take the fight to Justin Trudeau. But ever since, he's gone out of his way to remake the CPC in his own Red Tory image. According to Gary Mason, in a column entitled 'Erin O'Toole is changing Canadian conservatism as we know it,'

[B]ehind the scenes, there was always a plan to change the direction the party would head in during an election if [O'Toole] became leader – the direction many believed offered the only path to victory.

Mason continually praises O'Toole's sagacity in eschewing the positions of his base on issues like abortion, guns, conscience protections for healthcare workers, and environmentalism; and his overall willingness to adopt stances more acceptable in polite society. Says Mason, a "Conservative Party headed by Erin O’Toole would be in step with the times. Full stop." But it's striking that the supposedly up-to-date positions he describes, purportedly to appeal to the same type of alienated, working-class voters who made Brexit a reality, are in fact the characteristic views of the Laurentian Elite.

Peter MacKay famously blamed the party's loss in 2019 on the "stinking albatross" of social conservatism hanging about its neck, but for Erin O'Toole the albatross seems to be conservatism itself.

Environmentalism is our focus here at The Pipeline, and on that score O'Toole's drift has been particularly egregious. One of the Tory insiders that Mason quotes praising the party's lurch leftward is Ken Boessenkool, who has been arguing for years that the only way conservatives will ever again take power is if they sell out Canada's oil and gas producing provinces by embracing carbon taxation and other extreme (and pointless) regulations in order to win over voters in the Greater Toronto Area (GTA). O'Toole has taken this advice, and the advice of other Tory insiders, like Mark Cameron, former head of the environmentalist pressure group Canadians for Clean Prosperity, now a deputy minister in the government of Alberta.

During his leadership campaign O'Toole signed a pledge saying,

I, Erin O’Toole, promise that, if elected Prime Minister of Canada, I will: Immediately repeal the Trudeau carbon tax; and, reject any future national carbon tax or cap-and-trade scheme.

But after he'd won, O'Toole released a document entitled 'Secure the Environment: The Conservative Plan to Combat Climate Change,' which begins "Canada must not ignore the reality of climate change. It is already affecting our ecosystems, hurting our communities, and damaging our infrastructure."

To combat climate change, O'Toole promised that, should he form a government, he would 1) implement his own Carbon Tax, one that's less onerous than the Liberal version, but which could be increased if market conditions make doing so feasible. 2) "Finalize and improve" the Trudeau government's Clean Fuel Standard (also known as the second carbon tax), 3) enact an electric vehicle mandate and invest billions of tax-payer dollars in EV manufacture and infrastructure, which includes, 4) update the national building code such that all buildings will have "mandatory charging stations or wiring required for chargers", 5) reduce emissions in line with the Paris Climate Accords by 2030 and achieving Net-Zero emissions by 2050. And on and on.

That's not just a flip-flop, that's an atomic belly flop.

Coming your way, Canada.

But are these moves necessary to win? Mason quotes Howard Anglin, former Chief of Staff to both Harper and Jason Kenney, as saying "[t]he first challenge that any Canadian conservative party must confront is that Canada is not a conservative country." Maybe. But I can't help hearing in that sentiment the predictions of impending "permanent Democratic majorities" we've been hearing about in the U.S. for the last 40 years. My own theory is that Canadians are rarely presented with a serious conservative alternative to the Trudeaupianism they've been force-fed since the '60s.

Here's just one example of how the Tories might have approached this election differently -- Dan McTeague of Canadians for Affordable Energy recently pointed out that the exploding price of housing has been a major issue in this election, but there has been little mention of the other factors making life in Canada increasingly expensive.

Once someone has a place to live, they are going to need to cool it in the summer and heat it in the winter. They will need electricity to cook and store their food... All of this, of course, takes energy... Every major Canadian political party is committed to at least Net Zero emissions by the year 2050. I have written extensively about how this leads to skyrocketing energy prices. Yet, amid all the talk about housing affordability no one in Canada seems to be saying much about energy affordability.

Policies like carbon taxation are always sold by the Liberals as affecting "Big Polluter" mega-corporations, but in fact they do real harm to ordinary people, both when they 're hit with the tax directly at the pump or paying their heating bill, or indirectly when the price for everything else goes up. Canadians are very sensitive to those pocketbook issues, probably even more so than Americans. Energy affordability could have been a winning issue for the CPC, with the winter months approaching and more than a year of accumulated pandemic-related economic anxiety weighing on people's minds. Instead they chose to go Liberal-lite, a move which rarely, if ever, works.

Still, I do appreciate arguments like those of former Conservative MP and minister Joe Oliver, whose recent endorsement of O'Toole for PM said:

[Trudeau] has exploited the pandemic to set the country on a path of unsustainable spending and intrusive government. Four more years galloping toward a dystopian Great Reset would make it exceptionally challenging for a new government to arrest, let alone reverse, that dire fate.

But I can't help but notice that Oliver's argument -- that Trudeau is awful and Canada just needs him gone -- is only for O'Toole by default.  Maybe that will be enough, and Trudeau fatigue will carry O'Toole over the finish line. But such a strategy just failed spectacularly in the California recall election, leaving Gov. Gavin Newsom in an even stronger position to torture the Golden State than he was before. Canada is likely to experience the same fate.

Erin O'Toole's Carbon Tax Flip-Flop

As I mentioned the other day Erin O'Toole has foolishly decided to flip-flop on the topic of Canada's carbon tax. And that's is the only way to describe this. While running for leader of the Conservative Party of Canada, O'Toole signed a pledge which read as follows:

I, Erin O’Toole, promise that, if elected Prime Minister of Canada, I will: Immediately repeal the Trudeau carbon tax; and, reject any future national carbon tax or cap-and-trade scheme.

That pledge, of course, was a big part of the reason that O'Toole beat out Peter MacKay for leadership. O'Toole appealed to the western provinces by calling MacKay a squish on resource issues. MacKay hit back, accusing O'Toole of secretly supporting the Trudeau climate agenda in one particularly heated debate. Here's Ezra Levant reluctantly commending MacKay for having O'Toole's number, and offering this conclusion on the current leader:

O’Toole supporting the carbon tax is disqualifying because he promised he wouldn’t, and he received support in return for that promise. So he’s untrustworthy. He’s a liar. It’s disqualifying because a carbon tax is a terrible idea, bad scientifically, bad economically.

He might have added that it specifically disqualifies him as a leader, since -- if reports from the Toronto Star and National Post are true -- his own caucus wasn't briefed on the change. “We all first heard about this from the CBC article,” one Tory M.P. told the Post. How can he ever have the confidence of parliament if he does things like this to his own members?

Of course, not everyone was upset by this development. Some were delighted. True North highlights this tweet from Trudeau crony Gerald Butts:

True North also points out a few notable and underdiscussed green goodies contained in the O'Toole proposal:

Other measures... include a study on “new taxes on frequent flyers, non-electric luxury vehicles and second homes to deter activities that hurt the environment.” A Conservative government would also spend $1 billion on domestic electric vehicle manufacturing and an additional $1 billion to deploy hydrogen technology.

Which is to say, he's all in.

Of course, O'Toole's counter to all of this is, first, that it is necessary for winning Ontario, and second, that at least his carbon tax is better than Trudeau's. I previously mentioned Dan McTeague's refutation of the first point. To the second, I would point to Derek Fildebrandt's argument in the Western Standard that the Tory plan is actually the worse of the two:

Under Trudeau’s plan, the federal government taxes consumers in provinces that do not have their own federally-approved carbon tax, and rebates a portion of it back to those consumers to spend as they see fit. Under O’Toole’s carbon tax, the federal government will impose a similar carbon tax, but instead of rebating it, will put into ‘green cards.' These green cards will be managed by a group of bankers appointed by O’Toole, and allow carbon taxpayers to spend the money collected on government-approved green purchases.... The real difference between the Trudeau carbon tax and the O’Toole carbon tax boils down to how taxpayers are allowed to spend the money collected from them. And on this front, Justin Trudeau’s plan is somehow, unambiguously better than O’Toole’s.

Several commentators think that this gamble will hurt the CPC's electoral prospects and O'Toole's career (Brian Platt mentions Patrick Brown as the nearest analogue, who outraged the conservative grassroots when he endorsed the carbon tax, so he had no one to back him up when other scandals arose, forcing him, finally, to resign). But the ever-cheerful sage Rex Murphy is concerned about its effects on the future of Canada itself:

The Conservatives are, if the rumours are true, about to enter an election, as a pale and timid version of the Liberal party, as near-partners to the NDP and the Greens. Out West voters will throw up their hands, sigh very deeply, stay at home, and really start thinking separation is the only way to go. Really, this policy is acid to Conservative support in the West and will, for some, force a rethink of their place in Confederation.

Back when O'Toole won the leadership race, I called on him to follow the advice of his fellow Ontarian, Shania Twain, to "dance with the one[s] that brought" him, meaning the Albertans and Saskatchewaners whose support gave him the 'W'. Instead, he's listened to the political consultant class who have long held that the path to Conservative victory is to copy the Liberals in every particular and to ignore the voters that they find embarrassing.

Well that choice seems to already be paying off... for Justin Trudeau. The latest polls suggest that, going into the rumored snap election to which Murphy alluded, Liberal support sits at 39 percent, six points above what they received in the 2019 General Election, which saw them barely hold on to power with a minority government. The Conservatives, meanwhile, are down seven points from the same election, at about 27 percent.

We tried to warn him.

Canadian 'Conservatives' Offer Carbon Tax

The CBC has gotten their hands on a copy of the Conservative Party of Canada's all new Climate Change plan, and boy are they excited:

After years of criticizing the Liberal carbon tax, the Conservative party is proposing a climate plan that also puts a price on carbon for consumers.... Under [Erin] O'Toole's plan... Canadians would pay a carbon levy, initially amounting to $20 per tonne of greenhouse gas emissions, every time they buy hydro-carbon based fuels, such as gas.... The Conservative party's carbon price... would increase over time to reach a maximum of $50 per tonne.

For comparison, Trudeau's carbon tax structure (not counting the Clean Fuel Standard, a second carbon tax in all but name) has the tax increasing $10 each year until it reaches $170 per ton in 2030.

The other notable provision of the plan is, frankly, bizarre. In the Liberal scheme, Canadians can have their carbon tax expenditures (the direct ones, not the indirect, cost of living ones) rebated back to them at tax time (more or less -- what would be the point if some of that money wasn't skimmed off the top?). In O'Toole's plan, tax revenue would be diverted directly into a "personal low carbon savings account" established for every Canadian, which could be accessed for expenditures "that help them live a greener life."

This reminds me of the old joke that a camel is a horse designed by a committee. "Personal low carbon savings accounts" are a camel if ever I saw one, and they'd be a nightmare to administer.

But that aside, is the 'Carbon Tax, but cheaper' play a wise one for O'Toole's Conservatives? Some smart politicos think so. Here, for instance, is Matt Gurney arguing that Canadians want to feel like their government is addressing climate change, but don't really want it to affect their lives in any way. In that case, a cheaper carbon tax might do the trick -- assuaging the consciences of enough voters in the eastern half of the country to make Erin O'Toole prime minister.

But I find Dan McTeague more convincing. By McTeague's reckoning, the O'Toole plan wouldn't merely cost the CPC a few  points of support out west, it would decrease their support in Ontario -- the big fish -- by as much as 10 percent! After all, Ontario made Doug Ford premier just three years ago on the strength of his opposition to the carbon tax. For every voter in the Greater Toronto Area who might give the CPC a second thought based on this plan, two or three more in the rest of the province might just stay home, disgusted.

That's just another way of saying 'Trudeau Majority."

The Wearin' of the Green

The Conservative Party of Canada are having their (virtual) policy convention this weekend, and one potential inclusion in their new platform is causing quite a stir in that country's monolithically left-wing media. This CBC headline tells the tale: "Conservatives debate whether to declare that 'climate change is real' at policy convention."

The language recognizing the reality of climate change was put forward by the Portneuf—Jacques-Cartier riding association, which added that, "[w]e believe that Canadian businesses classified as highly polluting need to take more responsibility in implementing measures that will reduce their GHG emissions and need to be accountable for the results."

The CBC's report is hysterically transparent, spending some time gawking at delegates who would dare to oppose this change in the platform -- one attendee said "she couldn't support any green policies until the health and safety concerns of 'industrial wind turbines' are better understood," although the writer assures us that this isn't a real issue.

The story then pivots to a discussion of Conservative leader, Erin O'Toole, who is famous for taking every position on every issue and saying whatever he needs to say to get good press:

O'Toole has promised the party's election platform will contain a climate change plan that could cut greenhouse-gas emissions. To attract new supporters — especially millennials — O'Toole has said he wants a made-in-Canada net zero approach that sees government partnering with and pushing companies to bring their emissions down, and carbon pricing that targets only industries, not individuals. "You're going to see a very detailed plan... that will, I think, make our commitments probably faster than Mr. Trudeau without a running-out-of-control federal carbon tax that he's already promising."

Sounds like witchcraft to me.

It's likely that some kind of green language will ultimately end up in the CPC platform, and it will probably get O'Toole a nice pat on the head for not being as backward as his party's voters. But in the end that will just be used as a pretext for the Liberal's positioning getting even more radical, and it won't help him, or his party, come election time.

Meanwhile, Canadian businesses and Canadian workers will be the ones who suffer.

As Canada Goes Green, Canada Goes Broke

It’s no longer news that the Liberal government of Canada under Justin Trudeau and his “social justice” cronies Gerald Butts and Chrystia Freeland have pulled out the stops in an effort to destroy the major source of Canada’s energy sector, the oil-gas-pipeline industry in the province of Alberta.

The oil sands have effectively become a dead letter. Every pipeline project has been quashed and energy companies have decamped for sunnier climes. The decline in Alberta’s GDP is pegged at 11.3 per cent. Unemployment and under-employment are rampant. The Alberta secession movement has acquired momentum and a political party, Wexit Canada, rebadged as the Maverick Party, has been formed—although the province’s Conservative premier Jason Kenney remains a staunch federalist and majority sentiment remains “loyalist.”

What Canadians do not seem to understand is that as Alberta goes, so goes Canada. For more than 50 years Alberta, Canada’s energy producing breadbasket, has been a major net contributor to the rest of the nation via the Equalization Formula in which “have” provinces subsidize their “have not” counterparts.

As Canada under the Liberal administration has now become a heavily indebted “have not” country, Alberta was its last remaining mainstay—until Alberta itself imploded thanks to the energy crushing policies of the federal government. It is now a “have not” province. 

Indeed, as Canada goes Green, Canada goes broke, forcing it to increase its debt load and enact burdensome domestic programs that will impoverish its citizens and devastate the productive classes. At a steadily approaching inflexion point, Canada will face the spectre of default—a time-honored South American prospect.

In an article for the National Post, former Conservative leadership candidate Leslyn Lewis shows why she would have been a far better choice for the Conservative nomination than the waffly, Andrew Scheer-like Erin O’Toole. Lewis reveals how the new creeping socialism operates, confiscating not our property but our wealth via various levies like a home equity tax, a ubiquitous carbon tax, a new tax on the private sale of homes costing home owners a portion of their retirement savings, and a “perpetual debt scheme reminiscent of Argentina.”

What is taking place, she warns, is “a quiet and bloodless revolution that seeks to control our lives through economic dependency.” Conrad Black believes “the government… has lost its mind”—though more likely it is acting quite deliberately, in full knowledge and intent, cleverly pursuing a soft totalitarian agenda. Meanwhile, most Canadians linger in a condition of blissful oblivion as the country they believe is theirs and continue to be proud of is being insidiously stolen from them before their very eyes.

Regardless, Canadians on the whole believe in big government and continue to vote left, ensuring that Trudeau’s Liberals and the New Democratic Party (NDP) helmed by Jagmeet Singh will likely retain control of parliamentary business and national policy. A recent Angus Reid poll indicates that nearly 60 percent of Canadian women would vote today for either the Liberals or the NDP under these two leaders. Such are the wages of feminism.

Ontario, Quebec and the Maritime provinces—aka the “Laurentian Elite”—trend massively socialist, as do the major conurbations like Halifax, Montreal, Toronto and Vancouver. There can be no doubt that socialism is the name of the game. Trudeau has boasted that China’s “basic dictatorship” is his favorite political system and, as Spencer Fernando writes, is far too week to stand up to Chinese Communist pressure.

Trudeau, we recall, lamented the passing of Cuban dictator Fidel Castro, “join[ing] the people of Cuba in mourning the loss of this remarkable leader.” Similarly, Jagmeet Singh had this to say: “He saw a country wracked by poverty, illiteracy & disease. So he lead [sic] a revolution that uplifted the lives of millions. RIP #Fidel Castro.

Trudeau’s approval rating has taken a hit of late but carrots count in moving the dray electorate forward. A new Angus Reid poll indicates where his strength lies province by province. Many Canadians are happy to allow the government to borrow hundreds of millions to subsidize their idleness with a monetary COVID response package, dubbed CERB (Canada Emergency Response Benefit), recently increased by 20 percent, rendering it difficult for many entrepreneurs and businesses to hire service personnel who relish living off the government dole.

Nevertheless, despite his many false promises, numerous scandals, proroguing of parliament for several months on the pretext of mitigating COVID, fiscal incontinence, 600 million dollar media bribe (sugar-coated as a “bailout”), and overall economic witlessness (“the budget will balance itself”), Trudeau’s carrots to select beneficiaries enable him to retain a considerable voting constituency and markedly improve his chances of re-election.

Indeed, The Liberal Party can count on an ample war chest. A recent special report here at The Pipeline demonstrated that, of the top ten third-party spenders that influenced the previous election, eight of them were leftist groups, outspending their rivals on the right by a factor of over 15 to 1. The CBC poll tracker indicates that the Conservatives are currently trailing the Liberals by 5 percentage points but, as the propaganda arm of the Liberals and favorite son Trudeau, its results should be met with a degree of skepticism.

Nonetheless, the Conservatives are likely no match for the combined electoral clout of the Left in this country. The cash-strapped, media bête noire, the People’s Party of Canada, is the best option for Canada’s (and Alberta’s) future, but it may not garner a single parliamentary seat—as was the case in the last election. This is to be expected. The Liberals may form a minority government once again, but with the NDP hitching a ride it would in any case be tantamount to a majority. Canada’s premier columnist Rex Murphy speculates, with considerable evidence, that Trudeau and Singh have formed “a (silent) concordat.”

Alberta had better get its act together before the Overton window closes. Alea iacta est.

Dwight Newman, the Carbon Tax, and Canada's 'Legal Monoculture'

Last week I wrote about the Carbon Tax Reference, a high-profile case before the Supreme Court of Canada that will decide whether the Trudeau government’s federal carbon tax is constitutional. As an addendum to that piece, I wanted to call your attention to an academic dispute which sheds some light on the case.

Back in August, the Centre for Law & the Environment at the law school of the University of British Columbia posted a paper by three Canadian law professors on its website, entitled “Responsible Scholarship in a Crisis: A Plea for Fairness in Academic Discourse on the Carbon Pricing References.” Their names are Stepan Wood, Meinhard Doelle, and Dayna Nadine Scott.

On its face, the paper seemed fairly straightforward and somewhat anodyne. The authors spoke of the importance of widely accepted academic standards in discussing this difficult topic, things like rigorous scholarly research, accurate citations to referenced sources, and conduct consistent with the highest standards of civility and integrity. 

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But they also did something noteworthy and unusual in this paper. They pointed to another article, written by a professor named Dwight Newman from the University of Saskatchewan, as an example of how legal scholarship should not be practiced. 

That paper was “Federalism, Subsidiarity, and Carbon Taxes," published by Professor Newman in the Saskatchewan Law Review in 2019. His argument was fairly technical, but essentially he averred that the federal carbon tax poses a serious challenge to Canadian federalism and called for a disciplined application of the law to “clarify and confine” federal power in a manner that respects provincial autonomy.

He also suggested that there's a contradiction in the position of defenders of the law -- including the Trudeau government -- who hold that the carbon tax is a matter of "national concern," such that it allows the invocation of the federal governments constitutional “residual powers,” but also that the provinces can opt out if they come up with something even more rigorous. Consequently, Professor Newman maintained that the carbon tax is unconstitutional.  

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This shouldn't be shocking to anyone -- a law professor has an opinion about the law, even if that position differs from the opinion of other scholars. That's what scholarship is all about. However, according to Wood, Doelle, and Scott, Professor Newman is also guilty of “distorting the published work of scholars with whom he disagrees, and portraying them in derogatory terms” as well as “selectively presenting the relevant case law to suit his purposes.”

They claim to “take no issue” with the arguments Professor Newman makes in his paper. Rather, their concern is “with how Professor Newman chose to make his argument and the implications of this choice for legal scholarship and informed public debate." 

These are grievous charges indeed. But the authors hardly make a case for their allegations. They do little more than assert their point, something which you would assume a group of lawyers would be sensitive to.

But, then, why write the article in the first place? Well, as Sean Spear recently pointed out in the National Post, Professor Newman’s paper was apparently influential in the Alberta Court of Appeal’s finding that the law is unconstitutional. Indeed, his paper is cited in the majority opinion several times.

Though the appellate courts of Ontario and Saskatchewan reached the opposite conclusion, albeit in split decisions, the timing of this article -- a draft was posted just under a month before the Supreme Court began hearing on the Carbon Tax Reference -- suggests that the authors were concerned that Newman's arguments might sway the Supreme Court as well. 

In a public reply to their paper, Newman dealt with several of the specific charges levied by Wood, Doelle, and Scott, such as they are (and reading his replies gives you a sense of how shallow they are:

"On p 7, Wood/Doelle/Scott suggest I should have read a particular article. I actually discussed that very article and showed how it had problems in its understanding of the relationship between the legal doctrines of POGG and interjurisdictional immunity." But he also dealt with the larger dimensions beyond this exchange, including that which related to the impending Supreme Court case: “accusations of irresponsible scholarship… have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate.”

Newman rightly cautioned that “the publication of [this paper] threatens academic discourse through the intimidating effects it could have on [all] scholars.” 

Other scholars seem to agree, and defenses of Professor Newman were quick to surface. This is heartening, since the broadside against professor Newman was shameful, and the pretense of its authors that this was just about the integrity of legal scholarship, and was not politically motivated, only makes it worse. As Speer rightly put it,

The charitable read of professors Wood, Doelle and Nadine Scott’s article is that they’ve grown unaccustomed to alternative interpretations and analysis in the bubble of Canada’s legal monoculture. They’re not acting in bad faith per se. They just assume that anyone who reaches divergent constitutional views must necessarily be failing to live up to the standard of responsible scholarship.

A less charitable view is that the authors don’t like Prof. Newman’s article because it was influential with the Alberta court of appeal and contributed to a legal outcome that they don’t like. They’re determined to discredit him and his arguments before the Supreme Court’s upcoming hearings, so he doesn’t also influence its thinking.

Two ironies stand out in this whole affair, the more obvious one being that Professors Wood, Doelle, and Scott's article was purportedly about the standards of responsible scholarship, but in their quest to demonstrate those standards via negativa, as it were, by pointing to Newman's paper, they actually provided that example in their own writing. In their contention that Professor Newman had “crosse[d] a line,” they crossed one themselves.

The second irony is that their article might well have the exact opposite effect from the one intended. The controversy over Newman's essay makes it increasingly likely that everyone following the case will have read it, and even those Supreme Court justices reluctant to be seen siding with conservatives, the west, or so-called climate change deniers will have to contend with his arguments.

As the saying goes, you can't buy that kind of publicity.

SPECIAL REPORT: Third-Party Spending in Canada's 2019 Election

Our crack team of researchers have been at it again, this time compiling a report laying out the financial returns of third parties during Canada's most recent federal election last year.

The 2019 Canadian federal election (formally the 43rd Canadian general election) was held on October 21, 2019, to elect members of the House of Commons to the 43rd Canadian Parliament. The writs of election for the 2019 election were issued by Governor General Julie Payette on September 11, 2019.

The Liberal Party, led by incumbent Prime Minister Justin Trudeau, won 157 seats to form a minority government and lost the majority they had won in the 2015 election. The Liberals lost the popular vote to the Conservatives, which marks only the second time in Canadian history that a governing party formed a government while receiving less than 35 per cent of the national popular vote. The Liberals received the lowest percentage of the national popular vote of a governing party in Canadian history.

Elections Canada defines a third party as "a person or group that wants to participate in or influence elections other than as a political party, electoral district association, nomination contestant or candidate." Any third party that wishes to engage in regulated activities (which includes most public partisan activities, like advertising or promoting a candidate or party) during the pre-election or election periods is required by law to register with the Federal Government once it incurs more than $500.00 in expenses. That registration includes declaring where that money is going, and following that money trail -- be it in greenbacks, loonies, or pounds sterling -- is a central part of our project here at The Pipeline.

Of the top ten spenders, eight of them are leftist groups, one (the Canadian Medical Association) a centrist, and only one -- Canada Proud ("Working to defeat Prime Minister Justin Trudeau in the 2019 federal election") -- is on the right. That adds up to $5.5 million Canadian on the left versus $360,000 on the right -- $671,000 if you add in the Canadian Association of Petroleum Producers, which comes in at number 11.

Here's the full report:

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And here is a break down of that spending:

Federalism On Trial in Canada

With all of the focus on the U.S. Supreme Court last week, it’s interesting to note that Canada’s top court found itself at the center of that nation's national drama at exactly the same time. The Supreme Court of Canada held a two-day hearing on the Trudeau Government's federal carbon tax scheme. And the stakes for the nation as a whole, and the nature of Confederation, are potentially quite high.

You’ll recall that Trudeau’s Liberals, appealing to Canada’s Paris Agreement commitments to drastically reduce the nation's carbon emissions, passed a law nearly two years ago which forced a carbon tax on provinces that didn't already have one of their own. The law has been described as a “backstop," which is to say it requires provincial and territorial governments to put a price on carbon that meets minimum standards. Provincial governments can choose how to meet this benchmark, but they have to do something, and if their proposals are deemed insufficient, Ottawa will impose one on them directly.

From the beginning, Canadian conservatives -- especially Brad Wall and Scott Moe of Saskatchewan, and Alberta premier Jason Kenney -- have stood firmly against the law. They've argued, first, that the carbon tax is bad for Canadian consumers and industry, and second, that it is an unconstitutional usurpation of provincial authority.

The first of these points was put before the voters in last year's election, contributing to the Liberal's losing the their majority (along with, for what its worth, the popular vote), while maintaining a minority government. Meanwhile, the second point has been put to the test before three provincial appellate courts thus far, those of Alberta, Ontario, and Saskatchewan. In split decisions from each, the courts of Saskatchewan and Ontario found the law to be constitutional, while that of Alberta held that it was not. The appeals of those decisions is what is now being considered. 

Carbon pricing is not the only available option.

Unlike the American Constitution, whose 10th amendment stipulates that any power not specifically delegated to the federal government automatically falls under the purview of the states, Canada's Constitution Act of 1867 details which "matters" fall under federal jurisdiction (s. 91) and which under provincial jurisdiction (s. 92). Of course, constitutional grey areas arise when the “matter” wasn't an issue at the time of Confederation (carbon taxes, for instance) and is therefore not assigned to federal or provincial power.

Moreover, Canada's constitution does grant the federal government “residual powers” to pass laws for peace, order, and good government, in emergency situations or for matters of national concern. Supporters of Trudeau's carbon tax argue that it falls under the latter.

Consequently, the court must classify this matter as falling under either federal or provincial jurisdiction, and in so doing answer the question of whether the reduction of greenhouse gas emissions qualifies as a matter of national concern such that it justifies the implementation of a federal carbon tax, and in the way the Trudeau government has chosen to implement one.

Interestingly, counsel for both sides admitted that carbon pricing is not the only available option. A suite of pricing and non-pricing policy measures is at the provinces’ disposal to address this issue.  Several provinces have already put their own carbon pricing measures into place, which lends support to the argument that the federal carbon tax intrudes on provincial jurisdiction. In fact, one of the criteria of the national concern doctrine is "provincial inability," which holds that if the provinces don't have the jurisdiction to act in a matter that has extra-provincial effects, then the door is open for the feds to step in.

But the limiting factor of provincial inability is an important part of this debate. Does it refer only to constitutional inability -- that the jurisdiction to act is lacking; or is it a practical inability -- that is, that the political will to act is lacking. My reading of the relevant jurisprudence and Canadian history suggests that it is the former. As you would expect, however, counsel for the government took the opposite position, while arguing that precedent was split between the two. Even so, common sense seems to land on the constitutional side. Not acting on an issue can be an intentional choice. If the federal government can step in and legislate simply because a province has not done so -- in the case of a carbon tax --  this turns our whole understanding of federalism on its ear.

And -- a related point -- the very fact that the law is structured as a backstop, both implies that it is firstly the prerogative of the individual provinces to act, and makes a farce of federalism by penalizing provinces who act contrary to the will of the federal government.

And, listening to the hearing, it is clear that fear of being seen to support climate skeptics weighed on the justices. Justice Russell Brown made it a point to stress the issue is not whether the federal government can regulate greenhouse gas emissions but whether how it has chosen to do so is constitutional. Justice Rosalie Abella noted that the provinces “do not have plexiglass at their borders” to keep out greenhouse gas emissions. Justice Michael Moldaver expressed concern that if one province “goes rogue” and takes no action that would moot the efforts of the others.

At the same time, Justice Malcolm Rowe voiced serious concerns from the other side of the spectrum. Throughout the hearing he reiterated the danger of the law creating “winners and losers," punishing industries that use larger amounts of energy. Counsel for the appellants agreed with this view, suggesting that the law gives undue discretion to the federal cabinet to set sector-by-sector emissions costs, and thereby represents an unprecedented "federal power grab." 

The hearing has now concluded, and we will probably have to wait several months to find out which way the Court will rule. Its decision will likely affect the relationship between federal and provincial governments going forward, and at a time when the tension between them is shakier than its been in decades. I'm hesitant to guess which way they will go, though I often have occasion to think of the wise words of a professor of mine, speaking in an American context: "Never trust the Supreme Court to make the right decision."

But the justices would do well to remember two things. First, that their role is simply to faithfully interpret the constitution, and not to meddle in political questions or ensure particular policy outcomes. And second, that federalism cannot be a fair-weather friend. It is the bedrock of Canada’s constitutional structure and the courts must weather this commitment through any storm. We might not always like the outcome these two require, especially in hard cases. But as the appellants' counsel put it, “That’s federalism and that’s democracy.”