In dissent on carbon pricing, a 'traditionalist' judge puts Ottawa in its place


Un rare juge qui critique la judiciarisation du politique

Justice Grant Huscroft, who wrote the dissenting opinion when Ontario’s Court of Appeal ruled on Friday that the federal government’s carbon pricing scheme is constitutional, stands out from his colleagues for a few different reasons.

It was rare for a law professor to be named directly to the top court in Ontario, as Huscroft was by Stephen Harper in 2014, after a career at Western University and in New Zealand. The few others promoted in this way include such big legal names as Bora Laskin, later a Chief Justice of Canada, and Walter Tarnopolsky, an expert on human rights law.

For a judge, Huscroft is also unusual as a vocal opponent of judicial activism. A judge who thinks judges ought to know their place, he has written that to respect the limits of the judicial office is sometimes more “courageous” than actually resolving a dispute. He has also spoken out against Canada’s system for choosing judges, especially at the Supreme Court, which he described as a “farce,” and “secretive, elitist and profoundly undemocratic.”

But what really makes Huscroft stand out among the current generation of jurists who grew up with the sweeping powers granted to them by the Charter of Rights and Freedoms is that he is frequently described as an originalist. Originalism is a way of interpreting law more commonly associated with American conservatism, particularly Supreme Court judges like Clarence Thomas and the late Antonin Scalia, who were known for resisting any progressive legal interpretation unless it is spelled out clearly in the founding documents of the nation.

It’s widely understood that Canada doesn’t have a strong originalist tradition, and that Canada’s constitution is seen as more like a “living tree” that changes over time with new interpretations, and less like a set of rules written permanently in stone.

For example, in a 1993 case about employees of Ontario Hydro, Justice Frank Iacobucci wrote that Canada’s Supreme Court “has never adopted the practice more prevalent in the United States of basing constitutional interpretation on the original intentions of the framers of the Constitution. Rather, in Canada, constitutional interpretation rests on giving a purposive interpretation to the wording of the sections.”

So when Huscroft this week decided against the majority of his colleagues on the bench that the federal government doesn’t have the constitutional power to impose a carbon price on the provinces, he was thinking much more strictly and literally than the typical appeal court judge. His eye was firmly on the precise wording of the Constitution Act 1867, which confers powers on the federal government to make laws about matters of “national concern” under the “Peace, Order, and good Government” clause.

Huscroft is 'a traditionalist in his view of the separation of powers'


This is his usual approach, according to those who know him. Huscroft “really restricts himself to the original words of the constitution and their original meanings,” said Ian Brodie, associate professor in the University of Calgary’s Department of Political Science. Brodie, who was chief of staff to former Prime Minister Stephen Harper, has long been a friend and colleague of Huscroft, and they co-edited the 2004 book Constitutionalism in the Charter Era.

“An older generation of judges like Gerard LaForest (a former Supreme Court judge) insisted that the ‘environment’ did not create new federal powers,” Brodie said. “I read Grant’s opinion as respecting the precedents and that’s what I’d expect from him.”

Huscroft is “a traditionalist in his view of the separation of powers,” said Peter MacKay, the former Harper cabinet minister who was Justice Minister when Huscroft was named to the bench.

MacKay recalled being “impressed” when he would hear opinions from Huscroft and others that a case should be sent back to Parliament because it is not for the courts to decide.

MacKay said courts enjoy an automatic respect that is not often similarly directed at Parliament.

Huscroft has often made this point. For example in 2012 he wrote that courts “are currently involved in Charter litigation on everything from assisted suicide to prostitution and polygamy. The problem in all of this is that the Charter is anything but self-executing. It is full of vaguely worded rights and the social science evidence that courts have at their disposal in adjudicating Charter claims is anything but determinative. The truth is that judges have no greater insights than the people when it comes to debating the important moral and social issues of the day. The basic tools of legal reasoning are not well suited to the resolution of complex moral and social issues.”

The truth is that judges have no greater insights than the people when it comes to debating the important moral and social issues


Huscroft, unlike the majority, saw the carbon pricing case as a similar instance of overreach: “In effect, Canada has asked the court to sanction a change to the constitutional order — to increase Parliament’s lawmaking authority while diminishing that of the provincial legislatures, and to do so on a permanent basis.”

MacKay said he admired Huscroft’s dissent for its “minimalist” approach to judicial intervention in politics, and for its rhetorical treatment of whether these intrusions have any limit.

Huscroft’s dissent ends with this point about limits, and he makes almost a slippery slope argument. He argues the majority view introduces “great uncertainty” in how far courts will allow the federal government to intrude on matters of provincial authority. “Can Parliament establish ‘minimum national standards’ governing such provincial matters as home heating and cooling? Public transit? Road design and use? Fuel efficiency? Manufacturing processes? Farming practices?”