Justice Grant Huscroft saw the carbon pricing case as an instance of overreach: ‘In effect, Canada has asked the court to sanction a change to the constitutional order’
Justice Grant Huscroft, who wrote the dissenting opinion when Ontario’s Court of Appeal ruled on Friday that the federal government’s carbon pricing scheme is constitutional, stands out from his colleagues for a few different reasons.
But what really makes Huscroft stand out among the current generation of jurists who grew up with the sweeping powers granted to them by the Charter of Rights and Freedoms is that he is frequently described as an originalist.
So when Huscroft this week decided against the majority of his colleagues on the bench that the federal government doesn’t have the constitutional power to impose a carbon price on the provinces, he was thinking much more strictly and literally than the typical appeal court judge.
MacKay recalled being “impressed” when he would hear opinions from Huscroft and others that a case should be sent back to Parliament because it is not for the courts to decide.Huscroft has often made this point. For example in 2012 he wrote that courts “are currently involved in Charter litigation on everything from assisted suicide to prostitution and polygamy. The problem in all of this is that the Charter is anything but self-executing.
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