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On September 4th, the Ontario Superior Court of Justice declared the provincial Federal Carbon Tax Transparency Act unconstitutional for violating s. 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression. The case is CCLA v. Attorney General of Ontario, 2020 ONSC 4838.

The Act, passed in May 2019 by Ontario’s Progressive Conservative government, led by Premier Doug Ford, required gas retailers to post government-issued stickers on fuel pumps. The stickers depicted the extent to which the federal Greenhouse Gas Pollution Pricing Act would increase gas prices in Ontario. If a retailer refused to post the stickers, it would be fined for each day of non-compliance.

Challenging the provincial law, the Canadian Civil Liberties Association (CCLA) argued that legally requiring gas retailers to post the stickers violated the Charter section safeguarding from government interference the right to “freedom of thought, belief, opinion and expression.” As noted in the court’s decision, this Charter section protects both freedom of speech and the freedom to refrain from speaking, which is also a means of expression. Per the CCLA’s argument, by requiring gas retailers to place the stickers on fuel pumps, the Ford government illegally compelled them to speak on the government’s behalf.

Defending its sticker law, the government claimed the stickers were necessary to educate Ontario’s citizenry of the federal carbon pricing law’s economic harm. The sticker law, argued the provincial government, was therefore a justifiable means of providing federal government transparency, per the law’s official title.

Siding with the CCLA, the court found the Ford government’s argument untenable for several reasons.

Firstly, the stickers alluded to a federal “carbon tax”. However, the federal law is technically not a tax, but a regulatory charge. Rather than bringing in government revenue, as is the case with a tax, the federal government’s Greenhouse Gas Pollution Pricing Act - which returns all revenue to those provinces where it is implemented - uses a pricing mechanism to incentivize more climate-friendly corporate behaviour.

Ontario’s mandated stickers notably omitted any reference to this aspect of the federal law, or the Climate Action Incentive tax rebate offered to citizens in applicable provinces, designed to offset consumer cost increases resulting on account of the law. Instead of providing ‘transparency’, the stickers therefore actually misled the public as to the federal law’s substance.

Secondly, public statements by members of the Ford government, as well as the context of the law’s passage ahead of 2019’s federal election, clearly illustrated the law was principally intended to harm the federal Liberals politically.

As the court wrote in its decision, “[a] government or political party can, in the words of Ontario’s Minister of Energy, “stick it to” another tier of government or political party as a matter of free speech in an election campaign…But a government cannot legislate a requirement that private retailers post a Sticker designed to accomplish that task. The mandatory fuel pump Sticker is an unconstitutional attempt to do just that.”

The ruling marks yet another loss in a string of environment-related legal failures for the Ford government, even as it continues to embroil itself in more such legal quagmires.

In its continuous, varied and illegal attacks on laws intended to protect our environment, the Ford government has wasted, and continues to waste, millions of dollars in taxpayer money – all while claiming it’s acting to protect Ontario taxpayers. Worse still, whatever political advantage Ford’s government sought to gain from its unconstitutional sticker law was for nought: roughly two-thirds of Canadians voted for parties supportive of carbon pricing in 2019, with the Liberals remaining in power over a minority government effectively even more pro-climate than its predecessor.