In dissent on carbon pricing, a ‘traditionalist’ judge puts Ottawa in its place
A “traditionalist” judge puts Ottawa in its place because of disagreement with carbon prices.
Grant Huscroft is a Canadian jurist, who currently serves as a judge of the Ontario Court of Appeals. Huscroft was educated at the University of Western Ontario (BA 1980), Queen’s University (LL.B. 1984) and the University of Auckland (LL.M. 1987). He taught at the Faculty of Law of the University of Auckland between 1992 and 2001 and at the Law School of the University of Western Ontario from 2002 and 2014
Likewise, Judge Grant Huscroft saw the case of carbon prices as an instance of overreach: ‘In effect, Canada has asked the court to sanction a change to the constitutional order’. And it is that Huscroft, who wrote the dissenting opinion when the Ontario Court of Appeals ruled on Friday that the federal government’s carbon pricing scheme is constitutional, stands out from its colleagues for several different reasons.
Featured among many
It should be noted that for a judge, Huscroft is unusual as a vocal opponent of judicial activism. A judge who believes that judges should know their place has written that respecting the boundaries of the judicial office is sometimes more “courageous” than resolving a dispute. He has also spoken out against the Canadian system to elect judges, especially in the Supreme Court.
Similarly, it has been said that what really makes Huscroft stand out among the current generation of jurists who grew up with the broad powers granted them by the Bill of Rights and Freedoms is that he is often described as an originalist. Thus, originalism is a way of interpreting the law most commonly associated with American conservatism. In this way, it is widely understood that Canada does not have a strong originalist tradition and that Canada’s constitution is seen more as a “living tree” that changes over time with new interpretations, and less as a set of rules written permanently in stone.
Now, when Huscroft decided this week against most of his colleagues at the bank that the federal government does not have the constitutional power to impose a carbon price on the provinces, he was thinking much more strictly and literally than the typical judge of a Court of Appeal. His attention was focused on the precise wording of the Constitution Act of 1867, which grants powers to the federal government to make laws on matters of “national concern” under the clause “Peace, Order and Good Government”.
That being the case, this is his usual approach, according to those who know him.
Source: Joseph Brean | National Post