Questions Arising From the Anti-Carbon Tax Sticker Legislation (Including the Fixing of the Set Fine)

A short Canadian Press article in The Globe and Mail recently tweaked my interest. It explained that the chief justice had set the fine for not posting the anti-carbon tax stickers the province has required gas station operators to post on pumps at $150. The legislation provides for potentially higher fines. I started thinking about several issues that could arise from this, especially in the context of the anti-carbon tax sticker legislation.

The short article is misleading in one respect: although not specifying “chief justice” of what, the implication (by not specifying chief justice of what) is that it is the chief justice of Ontario (that is, of the Ontario Superior Court of Justice), whereas section 91.1(1) of the Provincial Offences Act refers to the chief justice of the Ontario Court of Justice: “The Chief Justice of the Ontario Court of Justice may specify an amount as the set fine for the purpose of proceedings under Part I or II [of the POA] for any offence.”

Subsection 2 of the Federal Carbon Tax Transparency Act provides that gas station operators obtain and post a “notice” (the sticker) on each gas pump at the gas station. (The government mailed notices to operators.) Failure to post as required leaves the operator liable to a fine up to $500 a day the stickers aren’t posted for a first offence ($5,000 for a corporation) and up to $1,000 a day for each second and subsequent offence ($10,000 for a corporation) (section 4). This implies that not posting for a second day would not constitute a second offence, but a continuation of the first offence.

The legislation also provides under section 3 for inspection of gas stations to ensure the stickers are posted and prohibits any interference with an inspection, subject under section 4 to a fine of between $500 and $10,000 (that is, more than for not posting the sticker in the first place). A director or officer of a corporation entitled to operate a gas station has an obligation to “take all reasonable care to ensure” operators post the stickers, subject to a fine of not more than $500 a day for a first offence and not more than $1,000 for each subsequent offence (subsections 4(3) and (4)). Section 5 describes the contents of the “notice”.

The government has also enacted a regulation to describe in detail how the stickers are to be posted: on every pump, one in English and one in French and “affixed to the gasoline pump upright and in a prominent location within the top two-thirds of the side of the gasoline pump that faces motor vehicles when the pump is used to put gasoline into their fuel tanks, and shall not be obscured from view”. Damaged notices or notices that are removed must be replaced “as soon as possible”.

Nothing prevents a retailer from posting a different sticker — perhaps one that explains the federal rebate that in many or most cases will be more than the increase in the cost of gasoline resulting from the carbon tax. The placement of another sticker may raise questions about what “obscured from view” actually means.

The Premier had already announced on August 23rd that those not posting the signs would not be fined the maximum amount specified by the legislation. However, the a notice posted on the government’s website on the same date, suggesting warnings may be given (or charges laid).

To return to the setting of the set fine. A set fine is the amount someone will pay if they decide not to contest the charge of contravening legislation and simply pay the ticket. Someone who contests the charge in court may pay more.

The Provincial Offences Act defines a “set fine” under subsection 1(1) as “the amount specified for an offence under section 91.1 by the Chief Justice of the Ontario Court of Justice or by a regional senior judge of that court for the purpose of proceedings under Part I or II [of the POA].” As previously indicated, subsection 91.1(1) provides, “The Chief Justice of the Ontario Court of Justice may specify an amount as the set fine for the purpose of proceedings under Part I or II for any offence.”

On August 28, 2019, the Chief Justice of the Ontario Court of Justice issued an order fixing the set fines, to come into effect on August 30, 2019. The Chief Justice set the fine for contravening the notice requirements under subsection 4(1) of the Federal Carbon Tax Transparency Act at $150 and the fine for obstructing inspection at $500.

A report quotes a spokesperson for the Minister of Energy as saying that “the government welcomed the ‘reasonable fines’ set by the chief justice” because “‘The point is to educate the public, not to create a burden for hardworking small business owners.’” Presumably, this is an admission that the fines set out in the legislation would create a “burden for hardworking small business owners”, although the spokesperson does not say so.

The set fine process — paying the ticket instead of going to court — is meant to make it easier for the person receiving the ticket to pay, but by making it a known amount that is likely to be lower than authorized by the legislation is an incentive for someone charged with the offence to save the court’s resources. Of course, simply paying the set fine means that an individual will not be mounting a defence or challenging the legislation’s constitutionality.

And it is the statute’s constitutional validity that is the big question. I have previously argued in a Slaw post that the legislation may be unconstitutional because it forces gas station operators, individuals and corporations, to engage in speech that is part of the Ontario government’s political agenda. This distinguishes it from required speech, such as that on cigarette packages that are justified on the basis of health.

The Canadian Civil Liberties Association has filed a constitutional challenge under section 2(b) of the Canadian Charter of Rights and Freedoms to sections 2, 4 and 5 of the legislation based on compelled political speech; its statement of claim is available here. One issue it may face is whether it has standing. I reviewed the cases on standing in a recent post on Slaw. There are three indicia for determining standing as explained by Cromwell J. for the Supreme Court of Canada in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society: The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.….(emphasis added) (para. 2, citation omitted).

A challenge to the Federal Carbon Tax Transparency Act, 2019 does raise “a serious justiciable issue” — that of compelled speech in a political cause — and based on the case law, the CCLA has the expertise to show a genuine interest in the outcome. The CCLA has addressed the last requirement in its statement of claim by stating that it has “made diligent efforts” to discover a gas station operator or “association” to challenge the legislation, without success. There have been entities that have opposed the compulsory stickers. The Ontario Chamber of Commerce expressed opposition to the requirement when it was announced last April. The Greater Niagara Chamber of Commerce, although concerned about the additional “red tape” the requirement imposes on businesses, also stated in its press release on August 29th,

businesses across Ontario have expressed their belief that the stickers are partisan, noting, for instance, that it only mentions costs and not the substantial rebates to households that the carbon tax offers. They feel that the requirement to post these stickers on their privately-owned premises contradicts their rights and freedoms regarding political expression and free speech.

Nevertheless, if these or other bodies are not willing to come forward, it is more important that the court assess the constitutionality of the legislation than deny the CCLA standing. The CCLA is not a “busybody” whose concern with civil liberties is not well-established.

It might also be argued that the high possible fines under the legislation are disproportionate for the failure to post a sticker that does not relate to health or safety. To what extent does the availability of a set fine obviate this argument? Presumably, this should not affect the opportunity to challenge the legislation for someone who goes to court rather than paying the set fine.

Posting notices in addition to the required sticker raises its own questions. The legislation and regulation require that the sticker must not be obscured from view. To the extent a notice with a different message detracts in some way from the anti-carbon tax sticker, without actually obscuring it from view, does it contravene the legislation? The required sticker is brightly hued and it would be difficult, although not impossible, to post another sticker right by it or even overlapping with a corner of it (for instance) that would be more likely to attract attention than the required sticker. The technical requirement of the statute would be met, but what about the spirit? A charge against the operator of the gas station on the ground that this failed to meet the law’s requirements would pose a contrast between compulsory (political) speech and freedom of (voluntary) speech.

Although not originally planning on discussing the process by which the Federal Carbon Tax Transparency Act, 2019 was enacted, in researching for this post, I came across a blog that raises an issue with which many constitutional, administrative and governance experts have concern: the use of omnibus bills and raising unrelated substantive legislation within the confines of a budget bill. In this case, the Federal Carbon Tax Transparency Act, 2019 was Schedule 23 to the budget bill. I remember the frustration I had when I first blogged about the sticker requirement in finding the actual requirement. I still don’t intend to discuss this further, but I do want to bring attention to a blog posted by Leonid Sirota last May 10th, No Way to Make Law, where he talks about how these bills contravene legislative due process. He’s right and this issue is not going away.

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