⚖️ Plastic problems

To: Hearsay Readers

When US appellate judge Jerry Edwin Smith dissents, he goes hard. Last month, he said it would take too long to explain all the errors in his colleagues’ majority opinion. So he wrote the opinion the Court “should have issued” and included it as an attachment instead.

He was less combative yesterday, but equally entertaining:

Excerpt from legal opinion

— Dylan Gibbs

TODAY’S DOCKET

  • Environment: Feds should have been more careful about plastic regulation

  • Round up: Carbon tax evasion scheme revealed, SCC won’t bring Syrian detainees home, first jury verdict in terrorism case

ENVIRONMENT

Plastic regulation was a federal overreach

Canadian parliament with plastic litter in foreground

The federal government just took another significant blow in the environmental regulation arena. Well, maybe two blows. The Federal Court said it was unreasonable and unconstitutional for the government to treat all manufactured plastic items as toxic substances.

Don’t celebrate the return of plastic straws just yet though. The decision doesn’t mean the feds can’t regulate plastic pollution — just that they need to do it in a much more tailored way.

What happened

The federal government uses the Canadian Environmental Protection Act to regulate toxic substances. Once a substance makes it on the “toxic” hit list, the executive branch has sweeping powers to restrict the substance or ban it altogether.

In 2021, the government said “plastic manufactured items” are toxic. The government used that classification to ban several types of single-use plastics, including checkout bags and plastic straws. The Responsible Plastic Use Coalition (aka Big Plastic) didn’t like those decisions.

This Federal Court decision just deals with the “toxic” classification. Big Plastic is challenging the single-use plastic ban in different proceedings.

Playing fast and loose with the evidence

The Federal Court’s main conclusion was that the government shouldn’t have lumped every possible type of plastic item together. The government conducted a study that showed some plastic items threaten the environment, but the leap to “all plastic is toxic” was a stretch.

  • The government’s decision was unreasonable because it wasn’t based on the evidence.

  • It was unconstitutional because the government improperly used its criminal law power. The feds can only criminalize things that cause harm, so grouping the non-harmful plastics with the harmful ones went too far.

Big picture

Nothing in the decision stops the feds from regulating certain types of plastics. But, if they stick with the current legislation and their criminal law power, they’ll need to dial it back to include only harmful plastic items.

The government’s evidence did show a link between plastic straws and environmental harm — so don’t get your hopes up there.

HEARSAY ROUNDUP

Canadiana

😈 Yesterday was the big debut for Saskatchewan’s carbon tax evasion scheme. The government says it will stop collecting carbon tax on natural gas starting in the New Year. The government is shifting the risk of that decision away from the province’s public utility, SaskEnergy, and onto the provincial government. Legislation tabled yesterday says the province takes all responsibility for remitting carbon tax. For added assurance — the province will also indemnify anyone associated with SaskEnergy who gets in carbon tax trouble with the feds.

🇨🇦 The Supreme Court of Canada won’t hear an appeal about repatriating Canadians detained in Syria. The case would have given the Court a chance to reconsider the “right to enter Canada” guaranteed by section 6 of the Charter. The Federal Court said Canada needs to take steps to bring the detainees home. But the Federal Court of Appeal overturned that decision earlier this year, confirming the right to enter doesn’t mean Canada needs to come and get you.

🧑‍⚖️ Canada’s first terrorism case with a jury led to a guilty verdict. Nathaniel Veltman was convicted of first-degree murder for driving his vehicle into a Muslim family in London in 2021. The jury wasn’t tasked with deciding whether it was a terrorist act though — that’s up to the judge to determine at sentencing.

🏠 The Yukon Supreme Court upheld the statute used to impose lockdown measures in the territory during the pandemic. The Court said it’s not a problem that the law delegates significant power to the executive branch of government and shields the government from liability for its decisions.

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