A Federal court has ruled the Trudeau government's ban on single-use plastics to be both unreasonable and unconstitutional. The government is appealing the decision.
Judge's ruling on plastics ban exposes some toxic Liberal thinking | National Post | Colby Cosh:
November 18, 2023 - "On Thursday a Federal Court judge, the Hon. Angela Furlanetto, startled the Dominion by essentially sweeping aside the Liberal government’s ban on a short list of single-use plastic items, including grocery bags, cutlery, takeout containers and drinking straws.... Justice Furlanetto, asked for judicial review by Alberta and Saskatchewan and a coalition of petrochemical processors, concluded that the actual rule was 'both unreasonable and unconstitutional.' Her judgment is a thorny 200-paragraph monster, but the innermost logic of it is simple.
"The federal Environmental Protection Act allows Ottawa to ban or restrict 'toxic' substances that might enter the environment. In 2021 the Liberals made a cabinet order essentially saying 'These here single-use plastic items are hereunto declared to be toxic'. Abracadabra!'” No one can show that these items are actually poisonous in the ordinary sense, and the listed items weren’t condemned as substances, i.e., for their chemical content or composition. The reasoning of the government was that if an Arctic lynx might choke on the ring from a six-pack of Labatt Blue, that kinda sorta makes the plastic in the ring 'toxic,' and justifies the federal government in the use of its criminal-law power.
"I don’t know if anyone at the cabinet table anticipated how this argument would fare under a 'reasonableness' analysis with lawyers for two provinces, plus Dow Chemical and Imperial Oil, among others, on the opposite side. But the government almost certainly faced a piece of extra bad luck in having the case go before Justice Furlanetto, a jurist with hard-science credentials that include a master’s degree in biochemistry....
In her judgment she observes that the explicitly stated rationale for the plastics ban was that 'all plastic manufactured items have the potential to become plastic pollution.' Justice Furlanetto found this reasoning to be puzzling.... 'The basic principle of toxicity for chemicals is that all chemical substances have the potential to be toxic,' she writes. 'However, for a chemical substance to be toxic it must be administered to an organism or enter the environment at a rate (or dose) that causes a high enough concentration to trigger a harmful effect. In this instance, the reverse logic appears to be applied: all PMI are identified as toxic because they are made of plastic and because all plastic is deemed to have the potential to become plastic pollution.'
"The judge goes on to accept arguments from the provinces that the order implementing the ban was overbroad, potentially capturing some categories of plastic items for which there is no evidence, or none with any scientific standing, of significant environmental harm. Past caselaw is clear that the federal power to make criminal law must be very closely connected to actual, demonstrable harm: the federal government isn’t supposed to invoke criminal-law power to sneakily engage in economic regulation. Unfortunately for the Liberals, their own documents discussing the ban contain some gasbag talk about creating a 'circular plastics economy,' even though all provinces have plastics regulations of their own (and less than one per cent of Canadian plastics escape the 'managed waste stream' that ends in the landfill).
"Furlanetto concludes: 'The broad and all-encompassing nature of the (banned) category of (plastic manufactured items) poses a threat to the balance of federalism, as it does not restrict regulation to only those PMI that truly have the potential to cause harm to the environment.'
"So if the Liberals choose to appeal her ruling, they have two (admittedly connected) hurdles to clear. They have to show that their defining of some non-poisonous forms of manufactured plastic as 'toxic' was reasonable.... And they have to show that the whole thing wasn’t a mere abuse of criminal-law power to obtrude into provincial economic jurisdiction. It’s impossible to trust the Supreme Court to uphold Furlanetto wholesale, but she has certainly shed light on the sheer logical shadiness of the plastics ban."
Read more: https://nationalpost.com/opinion/judges-ruling-on-plastics-ban-exposes-some-toxic-liberal-thinking
Feds will appeal single-use plastics ban ruling as pollution impacts are "undebatable": Guilbeault | Global News | November 21, 2023:
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