Tag Archives: Supreme Court

Roundup: Possibly a criminal leak

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The day got off to a very brow-raising start when someone – meaning almost certainly a minister’s office – leaked StatsCan jobs data ahead of its official release to soften the narrative around it, given that the predicted number of job losses were twice as many as what wound up being reported. This is a big deal – it’s market-moving information that should have criminal consequences for leaking, and yet here we are. And what is particularly galling about this is that I have my suspicions about which minister’s office leaked the information, and it’s one that has been showing a particular pattern of impunity, which is a very bad sign for how this government works – and not to mention how it communicates. Because they can’t communicate their way out of a wet paper bag, someone took it upon themselves to leak sacrosanct data (which, it needs to be reiterated, should not and cannot happen in a gods damned G7 country) in order to spin the narrative. Heads should roll for this.

And then prime minister Justin Trudeau had his daily presser, acknowledging the jobs numbers before he announced that the government would be extending the wage subsidy beyond June in order to keep the (eventual) economic recovery strong, while also announcing that Navdeep Bains would be leading a new industry strategy council. During the Q&A, Trudeau also had to face questions about why nobody can say “Taiwan” when it comes to thanking them for donations of personal protective equipment, so Trudeau did just that, so I guess certain MPs will need to find something else to have a meltdown over next week.

And for the 75th anniversary of VE Day yesterday, the Queen made a televised address in the footsteps of her father.

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Roundup: Uploading their environmental liabilities

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For his Friday presser, prime minister Justin Trudeau was again laden with a myriad of announcements that he needed to unburden himself of. First it was the announcement that 125 medically-trained personnel from the Canadian Forces would be headed to Quebec to assist with their situation in long-term care facilities, with more assistance to come from the Canadian Red Cross and the banks of volunteers assembled by Health Canada and within the province itself. From there, it was that the government would spend $1.72 billion to remediate orphan wells in Alberta, BC and Saskatchewan, and more money for oil companies – particularly in Newfoundland and Labrador – to deal with their methane emissions. And then, it was money to help artists, athletes, and entrepreneurs. And finally, it was remarking that it was the anniversary of the Canadian Charter of Rights and Freedoms. And if you’ve caught your breath, during the Q&A, there was discussion about Parliament meeting in person one a week (the Conservatives want four times a week), that Finance Canada is looking at some kind of financial aid for provinces who can’t get access to cheap credit.

During the ministerial briefing afterward, there it was made clearer that there was going to be more money for regional development agencies so that they can help out local companies when they have difficulty getting commercial loans to bridge them through this period. Navdeep Bains said that they are still looking into technological solutions for contact tracing (and the Privacy Commissioner has issued guidelines if that is the case). Oh, and Canada Day is going to be virtual (which saves them from having to deal with not having access to Parliament Hill anyway because of construction).

But back to the energy sector. I find myself annoyed that the federal government has opted to go the route of paying billions of dollars to remediate these orphan wells because it means the sector – and the province itself, who set the deficient regulations that allowed the situation to spiral out of control – have successfully managed to upload those environmental liabilities to federal taxpayers. And I get that Trudeau has a political incentive to both be seen to be helping Alberta, and to patting himself on the back that this is an environmental measure, but it’s deeply frustrating because it’s only a little over a year ago when the Supreme Court of Canada ruled that companies, and in particular trustees in bankruptcy, can’t just offload these liabilities to the government to salvage the assets. (This, as the sector says that the measures aren’t good enough because it’s not targeted to their liquidity issues, and their boosters keep calling for a freeze to carbon pricing and environmental regulations, because of course they are.)

The province has made a lot of money by punting its environmental liabilities to the future. They didn’t properly ensure that these wells had securitized their remediation, because making companies pay upfront would hurt investment. And in the oilsands, they just trusted that the tailings ponds would act like regular mining tailings, and when they didn’t, they kept expanding and hoping that someone in the future would figure the problem out, and now they’ve got a giant problem on their hands, but hey, they needed to ensure the money flowed fast and immediately, which they then didn’t properly tax or charge sufficient royalties on, and now that the bill has come due, they’ve successfully ducked it and made sure the federal government pay it for them – all while shouting that they’ve paid for everyone else all this time so now we owe them (not true, and not how equalization works). Add to that, you have people like Elizabeth May saying that she opposed oil and gas subsidies but supports this kind of orphan well remediation in spite of the fact that it’s a giant subsidy, I can barely even. I’m an Albertan – I get that the sector is hurting, and yes, it’s hurt my own family, but I also get that it’s now a structural problem and that the boom days are never coming back because nobody has a time machine and can go back to stop the development of shale oil. Demanding the federal government bail them out – particularly after the province chose to put themselves in their current fiscal situation by refusing to properly tax their own wealthy and ensure a reasonable consumption tax because they instead chose to spend their oil resource revenues – just feels a bit rich.

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Roundup: Dire stats as Parliament is recalled

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It was a very busy morning – first, Statistics Canada released the March job figures, which were dismal – 1.01 million jobs lost, massive reductions in hours worked, but also (which everyone didn’t really report) that most of these jobs will likely come back once the pandemic measures are over with, which is significant. Following that, the federal Chief Public Health Officer, Dr. Theresa Tam, released some of the federal modelling on the course of the pandemic, which put everyone into a hot and bothered state.

When prime minister Justin Trudeau held his daily presser, he largely played the role of empathiser in chief – yes, these are all grim numbers, but we’ll get through them together. More to the point, we could be in this until summer, so it’s time to get used to our new normal, particularly if there are subsequent waves that follow this one (though those ones would likely not be as severe and wouldn’t require the same measures like the current lockdown – hopefully). He did also say that he respected parliament but then started making excuses for why he wanted a virtual one, and nope. Not going to fly, sorry.

It was announced later in the day that Parliament will be back on Saturday – 12:15 for the Commons, 4 for the Senate, which likely means Royal Assent by the time the day is over. That means that we’ll have yet more emergency legislation that gets maybe three hours of “debate” in the House of Commons, and that once again all of the negotiations have been done behind closed doors, and there will be no public record about what kind of amendments were requested and agreed to, which serves no one’s interests, particularly those of Canadians.

[Maclean’s has a new Q&A with Dr. Isaac Bogoch on questions people have about the pandemic]

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Roundup: States of public health emergency

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States of public health emergency were declared in Ontario, Alberta, BC, and PEI yesterday, and no doubt more to come, while Justin Trudeau mused that there could be situations where the government may have to invoke the Emergencies Act, so things got pretty serious yesterday. Mind you, his ministers who also were facing the media yesterday also stated that they wouldn’t invoke the Emergencies Act without provincial consultation, and there was some explanation on one of the political shows that it would likely only be invoked because there was some kind of gap in the powers available to one level of government or another if the situation worsens. We’ll see. (Here’s more on what invoking it would mean). Trudeau also said that they may need to temporarily recall Parliament (almost certainly with a minimum quorum of 20 MPs) to pass this or any other particular EI or tax measures, so we’ll have to keep an eye out for that in the coming days. Also announced was up to $5000 loans for those who need help returning to Canada or who need assistance if they can’t get back (and some travel insurance is facing restrictions if people don’t return ASAP).

We’re also expecting the first tranche of stabilization or bridge funding today (not “stimulus”), which is expected to be in the range of some $25 billion. As well, the National Post is reporting that CRA will extend the tax filing deadline by a month, which should be also announced later today.

Meanwhile, Heather Scoffield says that Trudeau needs to act fast to help vulnerable workers, and that today’s aid package will determine just how serious he is about his pledge to have Canadians’ backs. Kevin Carmichael looks into the Bank of Canada’s rationale for the emergency rate cut, and the fact that they have thus far been carrying the weight of trying to reassure the markets while we wait for Bill Morneau’s aid package.

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Roundup: Pallister makes a gamble

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Manitoba premier Brian Pallister announced yesterday that he was going to implement a carbon price after all – sort of. In a dare to the federal government, Pallister says he’ll stick with his originally planned $25/tonne price, and not raise it like he’s supposed with the rest of the country, but he would also reduce the province’s PST to compensate. Revenue neutrality can be a very good thing, but the point of having a common carbon price across the country is to have a level playing field so that provinces don’t undercut one another – which Pallister frequently ignores as he instead battles straw men about the efficacy of the province’s environmental plans (many of those mentioned having nothing to do with reducing GHGs).

While Pallister is confident that the Supreme Court of Canada will rule against the federal government on the upcoming carbon price challenges – which is a pretty risky gable to take – he’s daring the federal government to do what they said they would, which is to continue making up the federal carbon price with a separate carbon levy on top of the provincial one, which would continue to be rebated to taxpayers by the CRA. None of this makes much sense as a strategy other than the fact that it lets him proclaim that he’s lowered the PST in order to get the plaudits for that.

Meanwhile, here’s Dylan Robertson with some additional context:

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Roundup: Rights, title, and ratification

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We got a few more details yesterday about the agreement reached with the Wet’sutwet’en hereditary chiefs on Sunday, despite a few TV hosts somewhat obtusely demanding to know what it meant for the Coastal GasLink pipeline – despite the fact that it was stated over and over again that this agreement did not have anything to do with that, and that the matter was unresolved. The crux of the agreement was an agreement on how rights and title would be extended for the Wet’suwet’en going forward, meaning that with any future projects, there would be clarity as to who would need to be consulted – which means the hereditary chiefs – and given the new impact assessment process that the Liberals instituted (under the infamous Bill C-69), those consultations begin at the earliest possible moment for these project proposals so that affected First Nations can be brought in from the get-go. What I found especially interesting was that Carolyn Bennett said that this was in accordance with UNDRIP principles, as free, prior and informed consent (which again she stressed was not a veto). And one imagines that this kind of agreement would be a template for others when it comes to unceded territory across the country.

As for Coastal GasLink, work apparently resumed on aspects of the project, but given that some of their permits were pulled by the province’s environmental assessment agency with a demand for more consultations, one supposes that the work is on areas that are outside of Wet’suwet’en territory. Meanwhile, one of the elected chiefs who is in favour of the project was doing the media rounds in Ottawa yesterday, and he said that while his people were discussing the ratification of the new agreement, he said that he was also willing to give up the economic benefits of the pipeline is that was what his people decided that they wanted as part of those discussions. We do know that matriarchs who were in support of the project were also in the meeting between Bennett, her BC counterpart and those hereditary chiefs, so the discussion within the community is very much alive, and we’ll see in a couple of weeks when the ratification process is supposed to be concluded, what the future holds for the pipeline.

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Roundup: See you at the Supreme Court

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In the wake of the Alberta Court of Appeal reference decision on the federal carbon price, both Jason Kenney and his justice minister have been performing a particular song and dance for the media’s consumption, demanding that the federal government immediately remove said “unconstitutional” price, and demanding a rebate for all Albertans under threat of personal lawsuit.
Couple of things:

  1. This was not a court order. It was a reference question, so there is no actual weight to the finding of unconstitutionality. And federal justice minister David Lametti said as much in a letter responding to his Alberta counterpart telling that he would see him at the Supreme Court of Canada.
  2. There is already a rebate. In fact, most people get more back than they pay into it – and they are scheduled to receive the biggest rebates in the country. Demanding refunds is actually a bit gross, because it’s wilfully misrepresenting how the system works.
  3. Suing members of the federal Cabinet is not how the system works. And we actually saw said provincial minister’s old law professor take to Twitter to say that she taught him better than that. So there’s that.

https://twitter.com/cmathen/status/1232874850563260416

Meanwhile, Manitoba is threatening to continue with their challenge to the federal carbon price if they don’t get a deal on the very same thing from the federal government. While the federal government says that they haven’t received a new proposal from Manitoba, you can bet that the province wants to continue pitching a price that won’t rise, which isn’t going to be on because it’s about ensuring a level playing field across the country, and not letting premiers undermine one another in a race to the bottom.

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Roundup: Reverberations and court references

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The fallout from the Teck Frontier decision reverberated yesterday, whether it was with disappointed local First Nations, or industry groups giving the usual lamentations about investor confidence. More blame was thrown around, most of it at Justin Trudeau’s direction which seems to be in direct contradiction to what the company’s CEO said in his withdrawal letter, which talked about partisan bickering between levels of government, while also talking about how they supported carbon pricing and the emissions caps – in other words, largely siding with the federal government as the provincial government tore up the comprehensive and reasonable plan that the former NDP government had put into place with a great deal of thought and consultation, which introduced all manner of uncertainty into the market and put them into direct conflict with the federal government unnecessarily – but they also made the gamble that Andrew Scheer would win the last federal election and they wouldn’t have to worry about carbon pricing or strict regulations any longer, and well, that didn’t happen. Of course, it didn’t stop Kenney, Scheer or others from making up things wholesale in order to keep the blame on Trudeau, after they already overly raised expectations for the project (in part by lying about what its promises actually were). In conversation yesterday, a fellow journalist made the supposition that Teck may have been afraid of federal approval at this point because the expectations for it had been built so high when they knew they couldn’t deliver on it, in large part because the price of oil is simply far too low for the project to be viable, not to mention that it’s hard to attract financing as global investors are looking for climate-friendly projects these days.

In pundit response, Heather Scoffield points to the lack of the next stages of the federal climate plans, combined with Alberta’s battling those plans, as factors making us unattractive to investors. Scoffield also blames a lack of leadership for why it’s taking so long to get those needed plans in place. Max Fawcett considers Teck Frontier a metaphor for an Alberta past that won’t come back, and that the withdrawal of the application should be a wake-up call for those who are trying to bring that past back. Kevin Carmichael calls out Teck’s CEO for playing martyr while sabotaging the kind of conversation over energy and the environment that the country needs to have, but now won’t because the deadline is off the table and we have degenerated into assigning blame.

And then, as if things couldn’t get any more interesting, the Alberta Court of Appeal released their 4-1 decision that said that the federal carbon price was unconstitutional, in direct opposition to the decisions from Ontario and Saskatchewan (both of which will head to the Supreme Court of Canada next month). But that being said, there is a curious amount of overtly political editorialising within said judgement, from one of the concurring judges in particular, which I am assured by a law professor will be a field day for the Supreme Court of Canada when this ruling makes it to them.

https://twitter.com/molszyns/status/1232059249158545408

https://twitter.com/molszyns/status/1232074971918168064

https://twitter.com/molszyns/status/1232161066898968576

https://twitter.com/molszyns/status/1232054682140340225

https://twitter.com/charlesrusnell/status/1232124886937550849

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Roundup: Ministers inbound

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The ongoing protests in support of those First Nations hereditary chiefs protesting the Coastal GasLink pipeline have not yet resulted in arrests, raids, or other police action to enforce the court injunctions just yet, and VIA Rail has shut down passenger rail service throughout the country, while CN Rail has shut down their eastern Canadian operations for the time being, and that means temporary layoffs. There has been more government responses now – BC premier John Horgan is setting up new meetings, while Carolyn Bennett is heading to BC to meet with those hereditary chiefs, while Marc Miller will be meeting with the Mohawk leaders setting up the blockades in Central Canada (while Justin Trudeau says he remains apprised of the situation while abroad, and will be returning to Ottawa tonight following the conclusion of the security conference in Munich). Trudeau reached out to one of the First Nations leaders leading a solidarity protest blockading the port in Prince Rupert, and that seems to have worked, as they agreed to dismantle that particular blockade.

Part of what is underlying the response to these protests seems to be an aversion to another Oka crisis – so we’ll see whether there have really been any lessons learned, thirty years later. And police action would inflame the situation, and they seem to be alive to that situation, which is probably a good thing. I have to wonder if part of the response to this isn’t also a bit of a mirror of what we saw recently with the CN Rail strike, where certain voices started immediately howling that Parliament needed to be summoned in order to ram through back-to-work legislation or there would be dire consequences, and the government held off and lo, a resolution came within about eight days. Was there some disruption? Yes. Was the outcome better than if they had taken out the sledgehammer? Undoubtedly. And it would seem to me that similar thinking is underway here. Despite a few middle aged, white male columnists are melting down over, things are not at a crisis level – they are largely inconveniences, which is the point of protest. And by not making things worse, there remains a chance to resolve this in a peaceable manner.

This having been said, the cries that Trudeau is off trying to secure a UN Security Council seat instead of dealing with this “crisis” are myopic and don’t grasp what the seat would do for Canada (articulated in this thread), though I will lay that on this government’s chronic inability to communicate their way out of a wet paper bag. I also suspect that the hereditary chiefs’ attempt to launch a constitutional challenge against the pipeline on an environmental basis is going to blow up in their faces, so I’m not sure either side is doing themselves any particular favours in all of this.

https://twitter.com/EmmMacfarlane/status/1227934187090518022

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Roundup: A sledgehammer solution

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Talk about the sexual assault training for judges bill has continued, and the Conservatives have continued to float the idea that it should be expanded to include Parole Board officers. The problem there, of course, is that the bill deals with amendments to the Judges Act, which has bugger all to do with the Parole Board, and this too-cute-by-half tactic of the Conservatives betrays how boneheaded their tactics are.

Meanwhile, Gib van Ert, former Executive Legal Officer to the Chief Justice of the Supreme Court of Canada (who heads the Canadian Judicial Council), has some thoughts on the bill and why it’s very problematic.

Some scholars have shrugged and say “Big deal if it means they get more training,” but the original legislation was far more insidious in that the reporting requirements were a threat do the administrative independence of the court as well. But I’ve spoken to former judges who say this is unnecessary. Another one responded to van Ert. Part of the problem is that there have been high profile cases where the judge has been very wrong on sexual assault law, and that tends to be overturned at the appellate level – but much of the time, the most infamous cases have been provincial court judges, which this doesn’t deal with.

So why are they doing this? Optics. MPs want to look like they’re doing something about the problems or perceived problems, and they’re taking the sledgehammer approach because it looks effective, even when it may not actually be. But that is so much of politics these days, which we need to start breaking out of.

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