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Ontario motorists will be familiar with this sticker, commonly found affixed to gas pumps in the province:
This sticker (the “Sticker“) was required to be placed on gas pumps by O. Reg. 275/19, promulgated pursuant to section 5 of the Federal Carbon Transparency Act, 2019 (“FCCTA“). Significant penalties could be levied against gas station owners who failed to comply.
In a significant ruling for freedom of expression – in which Singleton Reynolds acted on behalf of the successful intervenor PEN Canada – the Ontario Superior Court ruled that requiring gas station owners to post the Sticker was an act of compelled speech by the provincial government, violating s. 2(b) of the Charter. Consequently, it struck down the regulation and portions of the FCCTA.
Compelled speech is not a well developed area of jurisprudence in Canada, making the Court’s ruling extremely important for future compelled speech cases.
Climate change is a growing threat to Canadian communities and businesses. In response to this threat, the Canadian federal government enacted legislation adding a fuel surcharge to the price of gasoline. This legislation applies in provinces which have not implemented their own system of emissions pricing, or have implemented a system which falls short of federal requirements.
The Ontario provincial government has not been in favour of the federal government’s approach.
The FCCTA was tabled in April 2019 as part of Ontario’s budget legislation. During legislative debate, members of Ontario’s governing party, the Progressive Conservatives, made a number of statements about the intention of the Sticker including the following comment by the Minister of Energy: “We’re fighting this job-killing, regressive carbon tax. At every opportunity we are going to let the people of Ontario know where it hurts the most, when they’re fueling up their automobiles”.
The FCCTA was passed into law in Ontario on May 29, 2019 and came into force on August 30, 2019. This was merely two months before a federal election in which climate policy was certain to a be a critical issue. The CCLA commenced its challenge four days later, on September 3, 2019.
The partisan nature of the Sticker would become central to the Court’s decision.
The FCCTA Breaches Section 2(b) of the Charter
The Court began its analysis by observing that freedom of expression encompasses the right not to express views. It then turned to the leading case on compelled speech in Ontario, McAteer v Attorney General (Canada), 2014 ONCA 578 (“McAteer“), which set out three questions to be addressed when analysing a claim of compelled expression:
The Court determined that the first question was satisfied: “there can be little doubt that a Sticker designed to convey a specific message to the consumer of gasoline – whatever the message might be – falls within its definition.”
The second question was more challenging. In determining whether the purpose of the FCTTA was to “control” expression, the Court held that it needed to consider not only whether the FCTTA compelled a message (it did) but also whether the legislation prevented gas retailers from disavowing the message or disassociating themselves from it. Because the FCCTA did neither, the Court held that the purpose of the legislation was not to “control” expression. Therefore, there was no automatic violation of s. 2(b).
The third question was where the Court concluded that the FCCTA violated s. 2 (b). In essence, the Court held that because the FCCTA “countermand[ed]” the rule of law, it ran counter to the purposes underlying freedom of expression, and it warranted constitutional disapprobation. The Court reasoned that the Sticker was partisan and misleading:
[I]t is Ontario’s position that the content of the Sticker is merely information-conveying, and is designed for the purpose of informing the consumer about the cost of gasoline and the Fuel Charge imposed by [federal legislation]. However, the information thereby conveyed is incomplete in such a significant way that it does not convey the true state of facts.
While the government had argued that the stickers were designed merely to inform consumers about the cost of the fuel surcharge, the Court found that the Sticker omitted critical information about the federal climate scheme, a rebate system for individuals living in the provinces impacted by the fuel surcharge. This “kind of half-truth is not very truthful.”
Moreover, “even the label ‘Federal Carbon Tax’ that appears in bold, red font at the top of the Sticker is a misnomer” because the Ontario Court of Appeal had earlier ruled (in a challenge to the federal scheme commenced by the Ontario government) that the surcharge was not a “tax”.
Ultimately, the Court concluded that in designing the Sticker and mandating its placement, the provincial government was “trying to accomplish a task that is only coincidentally related to conveying the price of automobile fuel of carbon emissions [sic]. That is, the government is not so much explaining a policy, but rather is making a partisan argument.”
Citing the touchstone case Roncarelli v Duplessis,  SCR 121, the Court concluded by “[b]y using the law for partisan ends, the Ontario legislature has enacted a measure that runs contrary to, rather than in furtherance of, the purposes underlying freedom of expression…[T]his type of compelled expression ‘warrants constitutional disapprobation’.” In other words, the legislation breached s. 2(b) of the Charter.
Section 1 of the Charter Could Not Save the Legislation
Having found a breach of s. 2(b), the Court turned to the Oakes test developed under s. 1. The first stage of the test is the determination of whether the impugned legislation has a “pressing and substantial” objective. In this case, the Court determined that the impugned provisions did not have such an objective. Rather, “[w]hile truly informing the public about the components that make up the cost of gasoline would be a pressing and substantial government objective, promoting the Ontario governing party over the federal governing party is not.”
Even if the legislation’s purpose had been pressing and substantial, the Court held that it would have failed at the final stage of the Oakes test, which consists of a final balancing between the salutary and deleterious effects of the legislation. This was because the “salutary benefit of the information conveyed by requiring a Sticker on every gas tank would be far outweighed by the deleterious effect of using legislative and regulatory power for partisan ends.” The Court would not countenance this type of challenge to the rule of law, observing that “it is essential to the concept of the rule of law that the law does not serve political leaders, but rather political leaders serve the law”.
The Court concluded:
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 or otherwise. 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 Court’s decision was motivated by the obviously partisan nature of the Sticker. It is likely that future legislation which requires ordinary citizens to engage in partisan behaviour or post partisan signs will similarly be struck down.
The decision also underscores the importance to statutory interpretation of statements made in the legislature. The use of such statements to determine the true intent of legislation is not new, but the decision should nevertheless remind counsel to consult Hansard when interpreting new provisions.
Finally, the Court appears to have held that rule of law considerations will be relevant in determining whether legislatively compelled speech should be struck down on the basis of the third branch of the McAteer test. The amorphous nature of the “rule of law” may make this a challenging notion to apply in future cases.
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