Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?

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This Part is for those interested in law and how it develops but is not a technical law journal article. For anyone wanting a detailed legal analysis I suggest reading Paul Daly’s 5 blog posts starting here.

A Bit of History

Changing Courts, Changing Attitudes

Until about the early 1980’s most Canadian judges were men, usually appointed from law firms representing businesses and governments.  Judges appeared generally sympathetic to litigants like their former clients and less sympathetic to unions, women and the less fortunate in society. As a broad generalization, judges were to the political right of the average Canadian.

Gradually, judicial appointments became more diverse and judicial attitudes evolved. The attitude change was substantially influenced by administrative law professors like Bora Laskin (who eventually became Chief Justice of the Supreme Court of Canada). Some law professors (then and now) serve as labour arbitrators or members of administrative tribunals like Labour Relations Boards or Human Rights Commissions. Unions will reject the appointment of arbitrators unless they believe them to be at least somewhat sympathetic to unions. Hence these arbitrators and labour board members led the way, both in law journal articles and as judges, to offset the perceived judicial bias against unions and labour relations adjudicators.  The attitude moved leftwards and has remained there, but whether you see this as having moved to the political centre or to the left of centre depends upon your political views.

Judges protected labour adjudicators by declaring that labour boards had labour relations expertise equal to or greater than generalist judges. In practice this was usually true.  “Expertise” became shorthand for “stop picking on them” and show some deference. Considerable respect for such decision-makers has been the judicial policy for decades.

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Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?

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Two different biblical answers:

“The Lord…visits the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.” (Exodus 34:6-7 = Deuteronomy 5:8-10)

“The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son.”  Ezekiel 18:19-20 ESV

AV

Photo credit: THE CANADIAN PRESS/Chris Young

“Alexander Foley” (above) was born in Toronto in 1994. At the time, his parents were living under false names, posing as Canadians, while being Russian citizens and undercover spies for the Russian foreign intelligence service. The child growing up had no idea that his parents were spies. He believed that his name was Alexander Foley, and that he was a Canadian citizen by birth. He lived as a Canadian child, and held a Canadian passport.

However, in 2010, after the family had moved to the United States, the FBI arrested his parents and charged them with espionage. They pleaded guilty and were deported to Russia. Alexander’s whole world as he knew it fell apart.

He was 16 at the time, and suddenly found himself living in Russia, with the strange new name Alexander Vavilov.  After his parents’ arrest, Alexander wanted to renew his Canadian passport. But in 2014, Canada’s Registrar of Citizenship cancelled his certificate of citizenship, preventing him from obtaining a passport. He challenged her decision in court.

Does Canadian law require that the innocent son (now age 25) be denied Canadian citizenship because his parents were Russian spies?  Should the court allow the Registrar’s decision to remain in force, or should it overrule it? That was the legal issue before the Supreme Court of Canada (SCC) in this case.

But the SCC went beyond Alexander’s personal issue to examine, and to try to repair, the confused state of Canadian law governing judicial review of government decisions. Was  the SCC successful? That is the subject of Part 2 of this post.

 

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Will the Paris Agreement Fix the ‘Climate Crisis’?

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Preparations are now underway for COP25, a global climate conference of thousands of politicians and observers, opening  December 2 in Madrid.  This conference was to be held in Chile, but the Chilean President cancelled hosting it because of violent riots, sparked by large increases in transit fares and electricity prices.

One COP25 agenda item is the 2015 Paris Agreement, which was supposed to fix the climate crisis. Even if there is such a crisis, the Paris Agreement won’t fix it. [But is there really a climate crisis? You may want to read my two earlier posts on that issue, starting here: The Climate Crisis: Don’t Panic, It’s Not the Titanic.]

Everyone talks about the Paris Agreement, but hardly anyone reads it. The mainstream media says it was to reduce global CO2 emissions.  But that is not what the Agreement says or does. It doesn’t require any country to reduce its emissions.  Some of the planet’s largest emitters say they will increase their emissions — not just a little, but a lot.

China, the world’s largest emitter and growing rapidly, already accounts for 29% of global CO2. (The USA represents only 13%, Canada 1.6%.)  India, with its less developed but rapidly growing economy, creates another 7%. Yet both China and India (and several Africa countries) project increased emissions with no numerical limit.

Even if all the 195 nations that signed the Agreement do what they said they will do, the net effect will be no significant reduction in CO2 emissions. There is a huge disconnect between what the Agreement is supposed to do and what the nations have said they intend to do.

The current panic over the ‘climate crisis’ makes it politically essential for most governments to respond with dramatic displays of determination to “fight climate change” and achieve carbon neutrality by 2050. Unfortunately, as Nobel Prize-winning economist William Nordhaus has written in The American Economic Association Journal of August 2018:

“The reality is that most countries are on a business-as-usual trajectory of minimal policies to reduce their emissions …. The international target for climate change with a limit of 2°C appears to be infeasible with reasonably accessible technologies even with very ambitious abatement strategies.”

The only safe political path between the panic and the possible is to pretend to do the impossible. And that is the real purpose of the Paris Agreement.

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Every Country is Warming Twice as Fast as the Average!

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If you read the recent media headlines that Canada’s temperature is warming more than twice as fast as the average, you would probably believe it, as I did at first, and fear that Canada is facing a unique climate emergency.

But the same “warming twice as fast as average” headline recently appeared for numerous other countries: Australia, Finland, China, Sweden, Russia, Britain, all of Europe, Singapore and Japan. How can all these countries be warming twice as fast as the average?

Surprisingly, these media stories are neither a joke nor a mistake. They are a trivial fact, turned into a frightening story by deceptively vague language.

 

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PROFOUND ANSWERS TO A PROFOUND QUESTION: IS THE GLASS HALF EMPTY OR HALF FULL?

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For some lighter reading than my normally intense posts, I asked some well-known people for their opinions on this profound question: is the glass half-empty or half-full? As they were all much too busy to answer my question in person I had to make up their answers myself.

 

Donald Trump: There’s no water in that glass. It’s all fake news.

Al Gore: Unless you agree with me that the glass is empty you are a denier.

United Nations Panel on Climate Change: Our scientists say with absolute confidence that climate change will cause the water in the glass to boil by 2100.

Greta Thunberg: Your house is on fire and all you have to put it out with is half a glass of water? How dare you!

Oil Industry Spokesperson: The water looks clean to me.

Greenpeace: Let’s organize street demonstrations and protest strikes until the glass is entirely filled.

WWF: Don’t worry, we will tell Trudeau to make it subject to our new environmental assessment law, for 10 years of hearings.

The Guardian: We will not stay silent on this issue.

David Suzuki: We are going to sponsor a constitutional lawsuit to obtain a judicial determination of the question.

Prime Minister Justin Trudeau: I drank the rest of the water in the glass, but I only did it to save Canadian jobs.

Environment and Climate Change Minister Catherine McKenna: The water in that glass is subject to our new “hydrogen tax” based on the polluter pay principle.

Former Attorney-General Jody Wilson-Raybould: I’ll drink the water, but I refuse to drink the Kool-Aid.

Conservative Party Leader Andrew Scheer: If it votes Tory, what do I care how much water is in it?

NDP Leader Jagmeet Singh: If the water in that glass came from a wealthy tap it will have to pay wealth tax.

Green Party Leader Elizabeth May: If the water isn’t green I’m not drinking it.

Conrad Black: The aqueous liquid in that non-crystalline, transparent amorphous solid occupies precisely half of its volumetric content.

 

Canada’s Carbon Tax: Saving the Planet or Killing our Economy?

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Prime Minister Justin Trudeau says Canada must fight climate change with a rising carbon tax. But several provincial premiers have attacked the federal carbon tax in court as an unconstitutional “tax grab” that will severely harm Canada’s economy. Saskatchewan has lost its case, as has Ontario.

A tax of the planned $50/tonne, with most of the revenue rebated, is unlikely to be either seriously harmful or seriously effective at this rate. But if it continues to increase, and is supplemented by policies that massively subsidize or otherwise compel greatly expanded solar and wind generation, the economy will be harmed. Premature, politically determined investments in the wrong green technologies will leave many Canadian families freezing in the dark.

The evil Dogbert mocks the current green technology:

dt_c110329

DILBERT © Scott Adams. Used By permission of ANDREWS MCMEEL SYNDICATION. All rights reserved.

To achieve Canada’s promised 30% emissions reduction by 2030 with current technology would be enormously costly. That cost can only be raised through much higher taxes (whether on income, sales or CO2), without rebates. No country can afford to get it wrong and blow a bundle on something that doesn’t significantly reduce CO2 emissions, then raise taxes even more to try plan B and then plan C, etc.

If our government decides to invest heavily now in the currently available technology, as was done in Germany, it can lead to stratospheric electricity prices and an unreliable electricity supply. In Germany, taxes, levies, and surcharges in 2019 account for nearly 53 percent of a total household power price of 44 cents Canadian per kilowatt hour, among the highest in Europe [cleanenergywire]. In Canada, the price in Montreal is 8.2 cents, and Toronto, 15.11 cents [nrcan]. And Germany has had to build new coal plants to restore the reliability of its electricity grid when the sun doesn’t shine and the wind doesn’t blow. Any Canadian government that gives us German electricity prices will be destined for electoral  defeat.

Lower and even middle income Canadians would find it increasingly difficult to pay for the very expensive electricity to heat their homes and cook their food electrically (no more gas furnaces or stoves) and keep the lights and appliances on, as well as the very expensive gasoline to drive to work.  During Canada’s National Energy Program (1980-1985), which was much hated in Alberta, there were many Alberta bumper stickers saying “Let the Eastern Bastards Freeze in the Dark.” If our energy transition is rushed with technology that isn’t yet up to the task, many Canadians all across the country will freeze in the dark.

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THE ‘CLIMATE CRISIS’: DON’T PANIC, IT’S NOT THE TITANIC! Part 2 of 2

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Chimneys

The above photo is typically what we see in articles urging us to save the planet from an imminent climate crisis by quickly ending “carbon pollution” from fossil fuels. Such photos of chimneys belching large clouds are misleading because carbon dioxide is invisible. But showing chimneys emitting an invisible gas would not be scary. And scary sells.

A Canadian tax on carbon dioxide emissions is highly controversial among politicians, but less so among economists. My review of the applicable tax legislation showed me that it is a well drafted law. At the current tax level a fully rebated tax may be justified as a step in the right direction because that will help Canada to meet its Paris Agreement commitments. But our government’s justifying its carbon dioxide tax on the “polluter pay principle” are both misleading and confusing.

Calling CO2 a Pollutant is Misleading

It is misleading because CO2 is not “pollution” in the normal way that word has usually been used, for example, by the World Health Organization [WHO. ] The WHO reports that annually some 4.2 million people die from outdoor air pollution and 3.8 million from household air pollution (total of 8 million). Most of the developing world breathes polluted air, especially indoor air, polluted by burning animal dung, wood and charcoal for cooking and heating. WHO lists the outdoor and indoor air pollutants that represent the greatest threat, but CO2 is not on that list. Typical pollutants are, e.g. lead, particulate matter, ground level ozone, nitrogen dioxide, sulphur dioxide and carbon monoxide.

Unlike toxic pollutants in the air in developing countries, 100% of the people in the world breathe air with carbon dioxide in it. None of us get sick or die from breathing the CO2 in the air. CO2 is found in every soft drink and beer. I would hate to think that when I drink my glass of soda water or my beer, I am drinking toxic pollution.

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