Constitution of Canada; GGPPA

Instructions and case are attached. You will read through the case and answer the questions.

The purpose of this assignment is to examine how Parliament’s introduction of minimum national standards for greenhouse gas emissions, pursuant to the Greenhouse Gas Pollution Pricing Act (the GGPPA or the Act), provoked a constitutional dispute about the proper balance of power between the federal and provincial legislatures.

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There are two recent appellate court decisions dealing with the constitutionality of the GGPPA: one from the Saskatchewan Court of Appeal and one from the Ontario Court of Appeal. In each case, a majority of the Court of Appeal upheld the constitutionality of the GGPPA in the face of a strong dissenting opinion. And in each case, the dissenting minority took the position that the majority had erred in its characterization and classificationof the Act under the “national concern” branch of Parliament’s “peace, order and good government” power (the P.O.G.G power), an important head of power that establishes federal authority deriving from the preamble to section 91 of Canada’s Constitution Act, 1867.

Although both courts of appeal upheld the constitutionality of the GGPPA, the multiple dissenting opinions create uncertainty. The case is now before the Supreme Court of Canada.

British Columbia (which has a carbon price in place,) is intervening on the side of the federal government. B.C. said in 2018, that it believed that the federal government has a right to price pollution while providing the provinces the “flexibility” they need to design their own plans.

Task: A) Read the over the following FACTUM OF THE ATTORNEY GENERAL OF BRITISH COLUMBIA: https://www.scc[[ DocumentsWeb/38663/FM100_Intervener_Attorney[General[of[British[Columbia.pdf

B) Answer the following questions based on your understanding of the key legal issues as highlighted by the AG of BC. BE AS PRECISE AS POSSIBLE!!You will answer 4 questions in total.

Section A: Answer one of the following questions /10 (response: 3 paragraphs)

1) Briefly, explain the central objectives/purposes of the GGPPA. What regulatory tools are being purposed to meet those objectives/purposes? Does the GGPA apply to all provinces (explain)?
2) What is the source of this constitutional conflict? Otherwise stated; why is the Supreme Court being asked to analyze the GGPPA’s constitutionality?


Section B: Answer one of the following questions /10 (response: 3 paragraphs)

1) In Canada, the approach to analyzing the constitutionality of legislation challenged on federalism grounds is well established. It has two main steps: i) Characterization and ii) Classification. In your own words, succinctly/accurately describe how BC characterizes and classifies the GGPPA?
2) Why is it important to clearly delineate the GGPPA’s means(the imposition of a charge on fuels/emissions) from its dominant purpose in order to establish the constitutionality of this law? (Remember, in the past, the Supreme Court has cautioned that when determining the pith and substance of a challenged law, a court should not confuse the purpose of the law with the means chosen to achieve that purpose.)


Section C: Answer one of the following questions /10 (response: 3 paragraphs)

1) In your own words, explain how BC utilizes the principles of exhaustiveness and subsidiarityto help classify the GGPPA as falling within the national concern branch of P.O.G.G
2) In your own words, explain the “sui generis”approach to the doctrine of ‘national concern’ as taken by the AG of Saskatchewan. Why does BC reject this approach entirely?
3) In your own words, why is it important to have a narrow/preciserather than broaddefinition of ‘matter’ in national concern case law?
4) Explain how BC understands ‘provincial inability’ as it pertains to ‘national concern.’ In the context of carbon emissions, why is “the mere possibility of inter[provincial cooperation is not enough …”? (AG of BC, GGPPA, pg. 18)


Section D: Answer one of the following questions /20 (response: 4 paragraphs)
1) Based on this intervener factum, how does BC define Canadian Federalism? Why does an accurate theory of federalism matter in the context of the GGPPA? How does BC understand Parliament’s ‘general power’ granted by s.91 of the Constitutional Act, 1867?
2) In your own words, explain/explicate the following quote; “Parliament should be encouraged to act as boldly as the common threats to the country mandate, but as cautiously as federalism requires. Courts should limit their holdings to the legislation and record before them …” (AG of BC, GGPPA, pg. 11)


BONUS QUESTION: While the lower court decisions were not concerned with the efficacy of carbon pricing or the viability of the federal government’s strategy for reducing greenhouse gas emissions, in your estimation, can the SCC avoid these extrinsic questions regarding the substance of the legislation when rendering its decision? /2

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