Partisan Advantage Seeking Fails to Meet Pressing and Substantial Objective

Following the decisions by the Ontario and Saskatchewan Court of Appeal over the constitutionality of the Greenhouse Gas Pollution Pricing Act, the Supreme Court of Canada is expected to hear their appeals on Sept. 22-23, 2020.

The provinces did not wait for the courts to resolve this matter entirely, and in Ontario, the Minister of Finance at the time protested loudly on April 11, 2019 in the legislature,

Mr. Speaker, while our government takes deliberate steps to make Ontario open for business and open for jobs, the federal government is taking deliberate steps to make the cost of nearly everything more expensive. On April 1st, Ottawa imposed a job‐killing carbon tax on the people of Ontario and three other Canadian provinces.

Our government considers the carbon tax to be a clear and present threat to the affordability of life’s basic necessities. It will also increase costs for automotive manufacturing, transportation, mining and forestry, putting thousands of jobs at risk.

The federal government insists on punishing individuals, families and businesses in Ontario despite the fact that Ontario already leads Canada in greenhouse gas reduction targets.

We are fighting the carbon tax head on. We are challenging this tax in court and we are proposing to introduce the Federal Carbon Tax Transparency Act, which would ensure consumers are aware that this tax is driving up the price of gasoline all across the province. In addition, we will present a public campaign to educate people about the real cost of the carbon tax, while informing people about our Made‐in‐Ontario Environment Plan.

It should be clear to all of us: A carbon tax is not the only way to fight climate change.
[emphasis added]

The Federal Carbon Tax Transparency Act, 2019 (FCTTA) was enacted as part of Bill 100, where it was described as follows,

The Act imposes requirements on the person who is licensed under the Technical Standards and Safety Act, 2000 to operate a retail outlet at which gasoline is sold at a gasoline pump and put into the fuel tanks of motor vehicles. The person shall obtain from the Minister of Energy, Northern Development and Mines, or such other member of the Executive Council to whom responsibility for the administration of the Act may be assigned or transferred under the Executive Council Act, copies of the prescribed notice with respect to the price of gasoline sold in Ontario, and ensure the notice is affixed to each gasoline pump at the retail outlet.

The Act provides that the notice shall set out information with respect to the effect of the charge referred to in subsection 17 (1) of the Greenhouse Gas Pollution Pricing Act (Canada) on the price of gasoline sold in Ontario. It may also set out other information with respect to the price of gasoline sold in Ontario. The information may include information as estimated or otherwise determined by the Minister.

The most controversial aspect of the FCTTA was that gas stations were required to post a sticker with a political message indicating what the federal carbon tax would cost the consumer,

Notice on gasoline pumps

2 (1) The person who is licensed under the Technical Standards and Safety Act, 2000 to operate a retail outlet at which gasoline is sold at a gasoline pump and put into the fuel tanks of motor vehicles shall,

(a) obtain from the Minister copies of the prescribed notice with respect to the price of gasoline sold in Ontario; and

(b) ensure the notice referred to in clause (a) is affixed to each gasoline pump at the retail outlet in such manner as may be prescribed.

Violations of this requirement were subject to finds under s. 4, for $500-1,000 a day for an individual, and $5,000-10,000 a day for a corporation.

The FCTTA received Royal Assent on May 29, 2019, but the requirement to post the sicker became mandatory on Aug. 30, 2019, just two months before the Oct. 21, 2019 federal election.

However, the biggest controversy around these requirements at the outset were the stickers themselves. After briefly blaming opposing political party staffers for peeling off the stickers, the government appeared to concede that these stickers were not properly produced, and were falling off by themselves.

In an attempt to save taxpayer dollars, the government went with a bid that produced a substandard quality sticker. Little consolation for gas station operators, who were still in sticker shock over the financial penalties they were facing if the faulty stickers they were provided did not remain on their pumps. The regulation to the FCTTA states, for example, that if a sticker “is removed or defaced” that the FCTTA must still “be complied with as soon as possible.”

The Ontario Superior Court of Justice just released a new decision in CCLA v. Attorney General of Ontario, which held the FCTTA to be unconstitutional, as violating s. 2(b) of the Canadian Charter of Rights and Freedoms. The mandatory content of this sticker is a political message, and not any genuine consumer information, and therefore could not be saved by s. 1,

[44] The Sticker itself may be relatively small – it fits neatly on the face of a gas tank – but that does not mean that the burden on the gasoline retailer compelled to post it can be dismissed as “trivial or insubstantial.” In fact, the principle at stake is substantial when seen from the point of view of the retailer, its customers, and of a rights-based society in general…
[citations omitted]

Using the 3-part test at para 69 in McAteer, the court readily acknowledged that the sticker falls into expression,

[47] Indeed, the placing of a Sticker in a publicly visible locale is so analogous as to be identical to the placing of “public signs and posters [which] are a form of expression protected by s. 2( b) [ of the Charter]”. Since the Sticker is a form of expression, and sections 2( 1) and 4 of the FCTT A use mandatory language and require, under threat of penalty, the display of the Sticker, it follows that the challenged law compels expression.
[citations omitted]

The court did not accept CCLA’s submission around compelled expression, and instead indicated that the proper test is around controlled expression,

[48] The question posed by the McAteer analysis, however, is a different one: is the law designed not so much to compel a specific message but to control any message the gasoline retailer might otherwise express?

…

[52] Since the impugned legislation and regulation compel the Sticker message but nowhere deprive one of the ability to disavow it or dissociate oneself with it, the law is designed to compel expression but not to control it in the constitutionally understood sense. There is, accordingly, no automatic violation of section 2(b) as there would be for government action which both compels and controls expression.

Because gas retailers have the ability to provide their own political messages alongside the sticker or in response to it, the court moved to the third part of the test to show an adverse effect on expression that would warrant constitutional disapprobation.

The court rejected the province’s position that the sticker simply conveyed information, noting that the information that was provided was incomplete, and presented in adversarial and partisan ways. The Court of Appeal’s finding in the reference decision also made this political message an inaccurate and misleading one,

[60] …[the GPPA] was enacted for regulatory purposes rather than for revenue raising purposes, and so is a regulatory charge and not a tax. Persisting in calling it a “carbon tax” would be perfectly acceptable in political advertising or in a politician’s speech, but it is an intentional use of ‘spin’ that reveals the advocacy rather than informational thrust of the message.

…

[63] What is important here is therefore not that the prescribed Sticker is inaccurate or guilty of significant omissions, but rather that in designing the Sticker and making it mandatory the government is trying to accomplish a task that is only coincidentally related to conveying the price of automobile fuel of carbon emissions…

[64] In this way, the FCTTA and 0. Reg. 275/19 create not so much consumer messages but political missives. The Sticker’s information about the Fuel Charge is really a reversal of a wellknown Canadian aphorism: it is the medium but is not, in fact, the message: see Marshall McLuhan, Understanding Media: The Extensions of Man (New York: McGraw-Hill, 1964), ch. I. The message is that the incumbent party in Ontario has better policy ideas than the incumbent
patty in Ottawa. That is a perfectly acceptable message in a political campaign, but it is not the one that the government has purported to enact.

[65] …It is essential to the concept of the rule of law that the law does not serve political leaders, but rather political leaders serve the law. By using the law for partisan ends, the Ontario legislature has enacted a measure that runs counter to, rather than in furtherance of, the purposes underlying freedom of expression…

Finding that this use of legislation for political means warranted constitutional disapprobation, the court also found that the infringement was not justifiable. There was no pressing and substantial objective to be found here,

[69] …While truly informing the public about the components that make up the cost of gasoline would be a pressing and substantial government objective, promoting the Ontario governing party over the federal governing party is not. As scholars of public policy have pointed out, “The core distinction … between partisan advantage seeking and political decision making is that partisan advantage-seeking is concerned primarily or solely with providing a benefit, or rent, to the governing party while political decisions are matters
of public policy choice…” Public policy choices can reflect pressing and substantial objectives in the Oakes test sense of that phrase, while partisan advantage-seeking by definition does not.
[emphasis added, citations omitted]

The court identified other forms of justified use of legislative power to compel private persons and companies to post a sign, poster, sticker, such as a copy of the Occupational Health and Safety Act in every workplace, “No Smoking” signs under the Smoke-Free Ontario Act, and “Exit” signs under the s. 3.4.5 of the regulation under the Ontario Building Code. Although the court conceded that some circumstances may require compelled expression, but the partisan nature of the message here did not justify its use,

[76] … The Supreme Court has made it clear that the use of legislative/executive power for partisan purposes amounts to “an unjustified attempt to [legislate/regulate] to benefit the governing party”..

Consequently, the sticker provisions and its penalties were found to be of no force or effect, and gas stations may keep, remove, or modify them as they see fit.

Given the high stakes and political pressures of the controversies around carbon pricing, this decision may be the best example of a modern day Roncarelli, illustrating the potential abuse of legislative power.

Daphne Gilbert differentiates this case in the Journal of Law & Equality from other controversies around compelled expression in Ontario, specifically the Statement of Principles controversy, and the 2018 federal government’s attestation for their Canada Student Jobs program,

…the real source of the backlash against the attestation [or statement] is not any alleged Charter violations but, rather, a fundamental opposition to the very thing the government [or regulator] hopes to accomplish.

For all the value that many in the profession profess to attach to expression rights, it seems that their positioning around expression interests are also aligned with political goals and objectives, and not the actual constitutional principles behind these debates. This decision may help reorient those members of the bar as well, to better understand what is improper compelled or controlled expression, and what is not.