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.

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.”