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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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Opposition leader Poilievre calling for end of prorogation to deal with Trump’s tariffs

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From Conservative Party Communications

The Hon. Pierre Poilievre, Leader of the Conservative Party of Canada and the Official Opposition, released the following statement on the threat of tariffs from the US:

“Canada is facing a critical challenge. On February 1st we are facing the risk of unjustified 25% tariffs by our largest trading partner that would have damaging consequences across our country. Our American counterparts say they want to stop the illegal flow of drugs and other criminal activity at our border. The Liberal government admits their weak border is a problem. That is why they announced a multibillion-dollar border plan—a plan they cannot fund because they shut down Parliament, preventing MPs and Senators from authorizing the funds.

“We also need retaliatory tariffs, something that requires urgent Parliamentary consideration.

“Yet, Liberals have shut Parliament in the middle of this crisis. Canada has never been so weak, and things have never been so out of control. Liberals are putting themselves and their leadership politics ahead of the country. Freeland and Carney are fighting for power rather than fighting for Canada.

“Common Sense Conservatives are calling for Trudeau to reopen Parliament now to pass new border controls, agree on trade retaliation and prepare a plan to rescue Canada’s weak economy.

“The Prime Minister has the power to ask the Governor General to cut short prorogation and get our Parliament working.

“Open Parliament. Take back control. Put Canada First.”

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Trump, taunts and trade—Canada’s response is a decade out of date

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From the Fraser Institute

By Ross McKitrick

Canadian federal politicians are floundering in their responses to Donald Trump’s tariff and annexation threats. Unfortunately, they’re stuck in a 2016 mindset, still thinking Trump is a temporary aberration who should be disdained and ignored by the global community. But a lot has changed. Anyone wanting to understand Trump’s current priorities should spend less time looking at trade statistics and more time understanding the details of the lawfare campaigns against him. Canadian officials who had to look up who Kash Patel is, or who don’t know why Nathan Wade’s girlfriend finds herself in legal jeopardy, will find the next four years bewildering.

Three years ago, Trump was on the ropes. His first term had been derailed by phony accusations of Russian collusion and a Ukrainian quid pro quo. After 2020, the Biden Justice Department and numerous Democrat prosecutors devised implausible legal theories to launch multiple criminal cases against him and people who worked in his administration. In summer 2022, the FBI raided Mar-a-Lago and leaked to the press rumours of stolen nuclear codes and theft of government secrets. After Trump announced his candidacy in 2022, he was hit by wave after wave of indictments and civil suits strategically filed in deep blue districts. His legal bills soared while his lawyers past and present battled well-funded disbarment campaigns aimed at making it impossible for him to obtain counsel. He was assessed hundreds of millions of dollars in civil penalties and faced life in prison if convicted.

This would have broken many men. But when he was mug-shotted in Georgia on Aug. 24, 2023, his scowl signalled he was not giving in. In the 11 months from that day to his fist pump in Butler, Pennsylvania, Trump managed to defeat and discredit the lawfare attacks, assemble and lead a highly effective campaign team, knock Joe Biden off the Democratic ticket, run a series of near daily (and sometimes twice daily) rallies, win over top business leaders in Silicon Valley, open up a commanding lead in the polls and not only survive an assassination attempt but turn it into an image of triumph. On election day, he won the popular vote and carried the White House and both Houses of Congress.

It’s Trump’s world now, and Canadians should understand two things about it. First, he feels no loyalty to domestic and multilateral institutions that have governed the world for the past half century. Most of them opposed him last time and many were actively weaponized against him. In his mind, and in the thinking of his supporters, he didn’t just defeat the Democrats, he defeated the Republican establishment, most of Washington including the intelligence agencies, the entire corporate media, the courts, woke corporations, the United Nations and its derivatives, universities and academic authorities, and any foreign governments in league with the World Economic Forum. And it isn’t paranoia; they all had some role in trying to bring him down. Gaining credibility with the new Trump team will require showing how you have also fought against at least some of these groups.

Second, Trump has earned the right to govern in his own style, including saying whatever he wants. He’s a negotiator who likes trash-talking, so get used to it and learn to decode his messages.

When Trump first threatened tariffs, he linked it to two demands: stop the fentanyl going into the United States from Canada and meet our NATO spending targets. We should have done both long ago. In response, Trudeau should have launched an immediate national action plan on military readiness, border security and crackdowns on fentanyl labs. His failure to do so invited escalation. Which, luckily, only consisted of taunts about annexation. Rather than getting whiny and defensive, the best response (in addition to dealing with the border and defence issues) would have been to troll back by saying that Canada would fight any attempt to bring our people under the jurisdiction of the corrupt U.S. Department of Justice, and we will never form a union with a country that refuses to require every state to mandate photo I.D. to vote and has so many election problems as a result.

As to Trump’s complaints about the U.S. trade deficit with Canada, this is a made-in-Washington problem. The U.S. currently imports $4 trillion in goods and services from the rest of the world but only sells $3 trillion back in exports. Trump looks at that and says we’re ripping them off. But that trillion-dollar difference shows up in the U.S. National Income and Product Accounts as the capital account balance. The rest of the world buys that much in U.S. financial instruments each year, including treasury bills that keep Washington functioning. The U.S. savings rate is not high enough to cover the federal government deficit and all the other domestic borrowing needs. So the Americans look to other countries to cover the difference. Canada’s persistent trade surplus with the U.S. ($108 billion in 2023) partly funds that need. Money that goes to buying financial instruments can’t be spent on goods and services.

So the other response to the annexation taunts should be to remind Trump that all the tariffs in the world won’t shrink the trade deficit as long as Congress needs to borrow so much money each year. Eliminate the budget deficit and the trade deficit will disappear, too. And then there will be less money in D.C. to fund lawfare and corruption. Win-win.

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