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Canadian Constitution Foundation in court this week intervening in “plastics ban” case

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From the Canadian Constitution Foundation

“In this case, criminal law power should not be allowed to justify the sweeping inclusion of every imaginable plastic product on the list of ‘toxic’ substances and therefore under the umbrella of federal authority,” … “The Cabinet Order plastic ban is outside the scope of the federal power.”

The Canadian Constitution Foundation (CCF) is appearing as an intervener in the legal challenge to the federal “plastics ban” being heard on June 25 and 26 at the Federal Court of Appeal. The CCF will be arguing that the federal “plastics ban” is outside the jurisdiction of Parliament’s criminal law power.

In November 2023, a Federal Court of Canada judge struck down the Trudeau government’s Cabinet Order declaring all “plastic manufactured items” as “toxic” under the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act. The Order had been challenged by a coalition of plastics companies who had argued that the Order was unreasonable and unconstitutional.

The appeal of that decision is now being heard at the Federal Court of Appeal. At issue is the scope of the federal law power. Section 91(27) of the Constitution Act grants the federal government exclusive authority to make criminal law. Previous court rulings have found and affirmed that prohibiting truly toxic substances, like lead and mercury, under the Canadian Environmental Protection Act is a legitimate expression of that power. But the criminal law power cannot be used to justify the sweeping inclusion of every imaginable plastic product onto the list of “toxic” substances and therefore under federal authority.

CCF Litigation Director, Christine Van Geyn said: “The criminal law power is not a magical incantation. Invoking the words ‘criminal law’ does not transform any issue into something Ottawa can regulate.”

“In this case, criminal law power should not be allowed to justify the sweeping inclusion of every imaginable plastic product on the list of ‘toxic’ substances and therefore under the umbrella of federal authority,” Van Geyn added “The Cabinet Order plastic ban is outside the scope of the federal power.”

The CCF is intervening in the case to argue about the scope of federal criminal law power. Criminal law powers should be applied cautiously. To claim authority to regulate something based on federal criminal law power, Parliament must clearly demonstrate the criminal aspect of the targeted activities. The federal government cannot assume control over an entire area which is not, in itself, harmful or dangerous. This is particularly important when Parliament has asserted control and jurisdiction over an amorphous subject matter prone to overlapping jurisdictions, like environmental regulation.

The Canadian Constitution Foundation is represented in its intervention by Brett Carlson and Rebecca Lang of Borden Ladner Gervais LLP.

You can read the CCF’s intervener factum here.

Christine Van Geyn
Canadian Constitution Foundation

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California planning to double film tax credits amid industry decline

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California legislators have unveiled a bill to follow through with the governor’s plan of more than doubling the state’s film and TV production tax credits to $750 million.

The state’s own analysis warns it’s likely the refundable production credits generate only 20 to 50 cents of state revenue for every dollar the state spends, and the increase could stoke a “race to the bottom” among the 38 states that now have such programs.

Industry insiders say the state’s high production costs are to blame for much of the exodus, and experts say the cost of housing is responsible for a significant share of the higher costs.

The bill creates a special carve-out for shooting in Los Angeles, where productions would be able to claim refundable credits for 35% of the cost of production.

California Gov. Gavin Newsom announced his proposal last year and highlighted his goal of expanding the program at an industry event last week.

“California is the entertainment capital of the world – and we’re committed to ensuring we stay that way,” said Newsom. “Fashion and film go hand in hand, helping to express characters, capture eras in time and reflect cultural movements.”

With most states now offering production credits, economic analysis suggests these programs now produce state revenue well below the cost of the credits themselves.

“A recent study from the Los Angeles County Economic Development Corporation found that each $1 of Program 2.0 credit results in $1.07 in new state and local government revenue. This finding, however, is significantly overstated due to the study’s use of implausible assumptions,” wrote the state’s analysts in a 2023 report. “Most importantly, the study assumes that no productions receiving tax credits would have filmed here in the absence of the credit.”

“This is out of line with economic research discussed above which suggests tax credits influence location decisions of only a portion of recipients,” continued the state analysis. “Two studies that better reflect this research finding suggest that each $1 of film credit results in $0.20 to $0.50 of state revenues.”

“Parks and Recreation” stars Rob Lowe and Adam Scott recently shared on Lowe’s podcast how costs are so high their show likely would have been shot in Europe instead.

“It’s cheaper to bring 100 American people to Ireland than to walk across the lot at Fox past the sound stages and do it and do it there,” said Lowe.

“Do you think if we shot ‘Parks’ right now, we would be in Budapest?” asked Scott, who now stars in “Severance.”

“100%,” replied Lowe. “All those other places are offering 40% — forty percent — and then on top of that there’s other stuff that they do, and then that’s not even talking about the union stuff. That’s just tax economics of it all.”

“It’s criminal what California and LA have let happen. It’s criminal,” continued Lowe. “Everybody should be fired.”

According to the Public Policy Institute of California, housing is the single largest expense for California households.

“Across the income spectrum, 35–44% of household expenditures go to covering rent, mortgages, utilities and home maintenance,” wrote PPIC.

The cost of housing due to supply constraints now makes it nearly impossible for creatives to get their start in LA, said M. Nolan Gray, legislative director at housing regulatory reform organization California YIMBY.

“Hollywood depends on Los Angeles being the place where anybody can show up, take a big risk, and pursue their dreams, and that only works if you have a lot of affordable apartments,” said Gray to The Center Square. “We’ve built a Los Angeles where you have to be fabulously wealthy to have stable and decent housing, and as a result a lot of folks either are not coming, or those who are coming need to paid quite a bit higher to make it worth it, and it’s destroying one of California’s most important industries.”

“Anybody who arrived in Hollywood before the 2010s, their story is always, ‘Yeah, I showed up in LA, and I lived in a really, really  dirt-cheap apartment with like $10 in my pocket.’ That just doesn’t exist anymore,” continued Gray. “Does the Walt Disney of 2025 not take the train from Kansas City to LA? Almost certainly not. If he goes anywhere, he goes to Atlanta.”

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Trump orders 10% baseline tariff on imports, closes de minimis loophole

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Reciprocal tariffs higher on many nations

President Donald Trump on Wednesday put the biggest piece of his new trade policy in effect by signing executive orders that place a 10% baseline tariff on all imports and much higher rates on nations that put taxes on U.S. products.

It could be the opening salvo in a global trade war, or, as Trump sees it, the beginning of a “Golden Age” for U.S. trade.

Trump also closed the small value packages loophole that allowed China to avoid taxes on packages valued at less than $800. Companies such as Temu and Shein used the loophole to ship billions of dollars worth of products directly to U.S. consumers and avoid paying the tax, as The Center Square previously reported.

President Trump speaks about tariffs at a Make America Wealthy Again event

Trump’s moves on Wednesday, which he termed “Liberation Day” for U.S. trade, marked the most significant shift in U.S. trade policy since the end of World War II.

In a speech from the White House’s Rose Garden, Trump said foreign nations for decades have stolen American jobs, factories and industries. He said the tariffs would bring in new jobs, factories and industries and return the U.S. to a manufacturing superpower.

“Our country and its taxpayers have been ripped off for more than 50 years,” Trump said. “But it is not going to happen anymore.”

Trump’s supporters praised the trade overhaul. U.S. Rep. Marjorie Taylor Greene said it was time for foreign nations to pay up.

“If you want to do business in America, you need to play by our rules,” she said. “For too long, American businesses, big and small, have been ripped off by bad trade deals and unfair competition. President Trump is putting a stop to it. He’s standing up for our workers, our companies and our consumers.”

Critics slammed Trump’s trade plans.

“Donald Trump may want to call this ‘Liberation Day,’ but there is nothing liberating for working families who are grappling with the high costs of food, housing, and utilities,” said Illinois Gov. J.B. Pritzker, a Democrat. “Tariffs are a tax. They are a tax on working families, a tax on groceries, and a tax on other everyday necessities.”

Other countries planned their own responses. The European Union plans to retaliate with its own measures.

“Europe has not started this confrontation,” EU boss Ursula von der Leyen said in a speech. “We do not necessarily want to retaliate but, if it is necessary, we have a strong plan to retaliate and we will use it.”

She said tariffs are taxes “paid by the people.”

“But Europe has everything to protect our people and our prosperity,” she wrote on X. “We will always promote & defend our interests and values. And we will always stand up for Europe.”

China, the world’s second-largest economy, said Monday that it was planning to coordinate its response to U.S. tariffs with Japan and South Korea.

Japan’s Prime Minister Shigeru Ishiba said Tuesday that he was willing to fly to the U.S. to meet with Trump to get an exemption for Japanese vehicle makers. He also said the government will take steps to minimize the impact of U.S. tariffs on Japanese industries and jobs.

Trump will impose a 10% tariff on all countries that will take effect April 5, 2025 at 12:01 a.m. EDT. Trump will impose an individualized reciprocal tariff on the countries with which the United States has the largest trade deficits, including China, India and Vietnam, among others. All other countries will continue to be subject to the 10% tariff baseline, according to the White House.

“These tariffs will remain in effect until such a time as President Trump determines that the threat posed by the trade deficit and underlying nonreciprocal treatment is satisfied, resolved, or mitigated,” according to a White House fact sheet.

Trump’s executive order also gives him authority to increase the tariffs

“if trading partners retaliate” or “decrease the tariffs if trading partners take significant steps to remedy non-reciprocal trade arrangements and align with the United States on economic and national security matters,” according to the White House.

“Foreign cheaters have stolen our jobs, ransacked our factories and foreign scavengers have torn apart our once beautiful American dream,” Trump said in the Rose Garden.

For China, the tariff rate will be about 34% on imports from the world’s most populous nation. For European Union countries, it will be 20%. For Japan, the duty will be 24%. Imports from India will get a 26% tariff. Cambodia will get hit with a 49% tariff, among the highest Trump outlined on Wednesday.

For months, the U.S. Chamber of Commerce has warned that tariffs could increase costs for U.S. consumers and hurt businesses. Neil Bradley, the chamber’s chief policy officer, said businesses large and small don’t want tariffs.

“What we have heard from business of all sizes, across all industries, from around the country is that these broad tariffs are a tax increase that will raise prices for American consumers and hurt the economy,” he said.

Last week, Trump announced a 25% tariff on imported automobiles and auto parts, duties that he said would be “permanent.” The White House said it expects the auto tariffs on cars and light-duty trucks will generate up to $100 billion in federal revenue.

Trump said he hopes to bring in $600 billion to $1 trillion in tariff revenue in the next year or two. Trump also said the tariffs would lead to a manufacturing boom in the U.S., with auto companies building new plants, expanding existing plants and adding jobs.

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