Saskatchewan’s carbon price reference case is in the hands of the judges now following two days of constitutional arguments. There is no set timeline on when the five-member panel will deliver their decision, but estimates from experts range from three months to a year.
Saskatchewan’s argument centered around the claim the federal government is intruding on provincial jurisdiction by applying a carbon tax in certain jurisdictions and not others. In addition, the province argued the federal price is in fact a tax, and not a regulatory charge as described by Ottawa.
On the federal side, the argument centered on climate change being a matter of national concern that no province can address by itself. This is why they should be able to use the constitutional power of Peace, Order and Good Government (POGG) to step into provincial territory and institute a minimum emission price.
Arguments from the federal government and supporting intervenors also talked about the importance of the carbon price in addressing climate change – something all parties agreed is a threat.
However, University of Saskatchewan law professor Dwight Newman does not believe that will do much to influence the panel’s eventual ruling.
“In past cases where people have argued about the effectiveness of laws courts haven’t wanted to hear that, and they’ve ended up saying in their judgement they’re not deciding that kind of issue,” Newman explained.
“They’re really just deciding who has the legal jurisdiction to pass this kind of law if a government in Canada is going to do that. So they will be focused on that issue, and not as much really on climate change.”
Constitutional law is Newman’s area of expertise. He paid close attention to the livestream of the court proceedings and took note of Chief Justice Robert Richards questioning Attorney General of Canada representative Sharlene Telles-Langdon on Ottawa’s POGG argument, justifying federal jurisdiction over the cumulative effect of provincial emissions and not general greenhouse gases.
“They kept getting asked questions by the court. I don’t know if they got it clarified for the court or not, but they were trying to say on that particular issue of cumulative effects that it’s not possible for the provinces to regulate that, and therefore the federal government can step in,” Newman said.
On the POGG issue, Saskatchewan’s attorney Mitch McAdam put forward a slippery slope of the POGG argument. He described it as an “extraordinary measure”, which could lead to Ottawa having the authority to regulate greenhouse gases in general – such as what kind of vehicles people are allowed to purchase.
“Every time the POGG powers are argued in courts, one of the things everyone is thinking about is what are the implications for future uses of that power,” Newman said.
“It’s a power that’s tricky to define, so as a result if they say certain things about it, there’s a risk that it could broaden it and could mean the federal government has power in a lot of unanticipated situations. That’s one of the things past judgments on POGG have always seen courts wrestling with.”
Ontario’s reference case will be going to that province’s appeal court on April 15. Newman doubts it will have any baring or delay on the Saskatchewan decision. Like other lawyers, Newman would not be surprised if this question ultimately goes before the Supreme Court of Canada.
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