Protection of the Environment is Unequivocally a Legitimate Use of the Criminal Law

The ruling strengthens the argument that the federal government in Canada can act on climate change to protect the environment. Rennie stated that “the environment and economy are intimately connected.” The court also noted that Syncrude acknowledged greenhouse gases contributed to climate change which negated, in the court’s judgment, the company’s right to claim that criminal law could not be applied.

The legislation being challenged was Canada’s Environmental Protection Act of 1999, specifically Section 139 dealing with production, importation and sale of fuel not meeting prescribed requirements. The court concluded that “the health and safety of Canadians, as well as the natural environment upon which life depends,” delegitimized Syncrude’s position.

Why cite criminal law? Because it addresses the issues of peace, order, security, morality and health with “the protection of a clean environment…a public purpose…sufficient to support a criminal prohibition.” In this ruling Parliament is given the means to seek and suppress pollution as a recognizable threat to Canadians and the natural environment. The court ruling further stated, “All criminal law seeks to deter or modify behaviour, and it remains a valid use of the power if Parliament foresees behavioural responses, either in persons or in the economy.”

The implication of this ruling for the federal government’s future policy on climate change is significant. The Canadian government can implement a national carbon tax for the purpose of protecting the health and safety of Canadians and the environment. Only the lack of political will is missing.

The truth be told, Canada needs an environmental bill of rights that supersedes any sub-jurisdiction from imposing a law or regulation that threatens the health of Canadians, the air they breathe, and the water they drink. The environment is our common wealth. Polluters continue to get a relatively free ride today with smokestack and liquid discharge emissions.

The simplest way for us to address this is the imposition of a carbon tax. You don’t need all kinds of regulation with a tax. You just tax the emitters and keep raising the rate until behaviour is permanently altered.

The alternatives are not as easy to implement. To regulate every industry and every pollution source requires an army of environmental auditors. Canada doesn’t t have the means or money to pay for such an environmental police force.

When British Columbia first implemented the carbon tax the principles behind its operation were well understood. But even B.C. has lost its moral courage by delaying raising the price on carbon for a number of years. The result, greenhouse gas emissions in that province have recently climbed.

Quebec, and Ontario are committed to a carbon cap and trade system which initially provides industry with free carbon credits but puts a cap on total emissions allowed. Later industries have to buy or trade these credits while the government lowers the annual cap.

In today’s Report on Business in The Globe and Mail, Glen Hodgson, Senior Vice-President and Chief Economist of the Conference Board of Canada, writes a cogent piece arguing for a federal carbon tax implemented at the national level regardless of the action of individual provinces. Here are his key reasons:

1. A national tax across the entire country would create a common incentive to reduce production and consumption of carbon.
2. It would lead to better public policy because using pricing as the carrot and stick means not relying on regulation and enforcement.
3. It would establish stringency as a core environmental principle to let consumers and business make better decisions and choices.
4. It would generate new revenue for the government and create the means to reduce other taxes such as on income and investment. Ideally the tax would be revenue neutral.

Hodgson argues that carbon revenue could fund low-carbon infrastructure with the money largely directed to municipalities. This would mean the federal government could reduce federal infrastructure spending and it being doled out to provinces. Municipalities would make determinations on how to allocate carbon revenue for needed projects.

Hodgson says “implementation of a federal carbon price need not be complicated, since the government already has the gasoline tax – a defacto carbon tax – as a base.” Added to gasoline and diesel, a transparent carbon tax would be an effective and stick policy. Those who switched to public transit, or purchased an electric or hybrid vehicle, or chose to bicycle or walk would pay far less than those who continued to consume carbon.

Compare a carbon price with cap and trade. One is simple. The other is complex. One requires little regulation. The other a significant amount. It makes you wonder why Quebec and Ontario along with their U.S. partner, California, have chosen the cap and trade path. Is it a way to shield the public from seeing the carbon sticker price that comes with a transition to a low-carbon future? I think so.