After playing out in provincial appellate courts, the carbon tax fight will be heading next to the Supreme Court of Canada.
“The government looks forward to the Supreme Court of Canada’s deliberations and is confident that the price on pollution is within federal jurisdiction,” Environment Minister Jonathan Wilkinson said on Monday.
The statement came hours after the Court of Appeal in Alberta ruled that the federal carbon tax is unconstitutional. Alberta is one of three provinces that challenged the Liberals’ Greenhouse Gas Pollution Pricing Act in court. The act applies the federal carbon tax in provinces that do not have a carbon tax in place that meets a federal standard.
Here’s a look at the battle over the carbon tax so far, and what’s in store.
Provinces court rulings
On Monday, the Alberta court ruled against the federal tax in a 4-1 majority decision.
“The federal government is not the parent; and the provincial governments are not its children,” Chief Justice Fraser, and Justices Jack Watson and Elizabeth Hughes wrote in the majority opinion ruling. Justice Thomas Wakeling concurred but wrote his own reasons.
Justice Kevin Feehan had the lone dissent. He found the federal government was within its powers to pass the legislation in the interests of peace, order and good government.
“The Act accomplishes the goal of having as small a scale as possible of impact on provincial jurisdiction.”
The Alberta decision differs from previous provincial ones in Ontario and Saskatchewan.
In June 2019, Ontario’s top court ruled the federal carbon tax doesn’t overstep provincial jurisdiction. Chief Justice George Strathy wrote on behalf of the Ontario appellate court that fighting climate change is a matter of “national concern.”
One month before that, Saskatchewan’s highest court came to a similar decision. Chief Justice Robert Richards wrote in the 155-page decision that establishing minimum national standards for a price on greenhouse gas emissions falls under federal jurisdiction.
He wrote that Ottawa has the power to impose its carbon tax under a section of the Constitution that states Parliament can pass laws in the name of peace, order and good government.
Nathalie Chalifour, a law professor at the University of Ottawa, explained to Global News over email that it’s not unusual for provincial appellate courts to rule differently on matters.
“It is not at all unusual for there to be differences of opinion about constitutional questions between provincial courts of appeal,” she said.
Chalifour explained the courts analyzed the federal law in different ways.
“The Alberta Court of Appeal has characterized the federal legislation in a broad way, which led it to conclude the law was outside of federal jurisdiction. The Ontario and Saskatchewan courts of appeal, on the other hand, characterized the law more narrowly, and held that there is a role for both Parliament and the provinces to play in regulating greenhouse gas emissions.”
Ultimately, she noted it is the Supreme Court of Canada that will have the final say on the scope and constitutionality of the legislation.
A look at the Supreme Court challenge
While the Alberta ruling is a win for provinces opposed to the tax, it’s not the final call. The Supreme Court was already set to hear appeals from Ontario and Saskatchewan prior to Alberta’s ruling.
The Supreme Court has set March 24 and 25 for the hearings. Chalifour noted Supreme Court decisions typically come between three to six months after a hearing.
In its ruling, the Alberta justices pointed out that the Supreme Court has only recognized the national concern argument three times since Confederation.
“Courts have been highly reluctant to use the national concern doctrine to create judge-made heads of power,” their decision read.
It noted health care, minimum wages and justice are all national concerns, but are still administered by the provinces. The court ruled that, for something to be a national concern within federal jurisdiction, it would have to be beyond the scope of provincial powers.
Joshua Ginsberg, a law professor at the University of Ottawa who represented the David Suzuki Foundation at the hearing, said the Alberta court’s reasoning may not jive with the Supreme Court’s previous rulings.
“The majority decision is trying to (dodge) around the Supreme Court jurisprudence on this issue, which does confirm that if there’s significant provincial inability to deal with a problem, the federal government can step in.”
If the Supreme Court upholds the federal carbon tax, it will continue to function as it does.
However, if the highest court deems it unconstitutional, the federal government will likely have to tweak the law to fit the “parametres of its jurisdiction as clarified by the Supreme Court,” Chalifour said.
— With files from The Canadian Press