Liberals’ soul at stake in carbon tax war,
After promising to use “every tool at our disposal” to fight the federal carbon tax, Ontario Attorney-General Caroline Mulroney was asked by a reporter whether this would include an invocation of the notwithstanding clause.
“We are looking at all legal tools at our disposal,” Mulroney replied.
The notwithstanding clause can do many things — and it’s not clear that Ontario is actually even considering such a manoeuvre — but it almost certainly cannot be used to halt payment of a federal tax, say legal experts contacted by National Post on Thursday.
Tacked on to the end of the Canadian Charter of Rights and Freedoms, the notwithstanding clause famously allows provincial governments to ignore parts of the constitution so long as they “expressly declare” it in advance. It’s a “parliamentary override,” a last-ditch way to stop an overzealous Supreme Court.
However, even a cursory reading shows it can only be used to ignore the sections of the constitution covering individual rights and freedoms, such as “freedom of conscience” and the right to “life, liberty and security of the person.”
“The notwithstanding clause permits the provincial government to protect its own laws from challenge regardless of whether they violate section 2 or sections 7-15 of the Charter,” wrote University of Ottawa constitutional expert Carissima Mathen in a note to the Post.
She added, “a provincial government cannot use it against a federal law, or vice versa.”
Although use of the clause is often threatened, only Quebec and Saskatchewan have ever enacted bills containing it. For part of the 1980s, in fact, Quebec tacked the clause on to every one of its bills as a kind of not-sosubtle middle finger to Ottawa. Most famously, Quebec continues to use the clause to protect its strict laws on French-language signage, which would otherwise be vulnerable to a Supreme Court takedown on the grounds that it violates “freedom of expression.”
While the clause can be employed to uphold provincial laws that would otherwise be unconstitutional, it has nothing to say about division of provincial and federal powers.
The clause is “completely irrelevant” to the carbon tax fight, University of Waterloo political scientist Emmett Macfarlane told the Post.
For starters, there aren’t any “rights” at stake — unless Ontario wanted to pursue the legally doomed argument that a carbon tax was somehow “cruel and unusual treatment,” Macfarlane said. And however Ontarians may dislike the carbon tax, it’s not causing any Ontario laws to be found at risk of being deemed unconstitutional.
The clause is only supposed to preserve legislation, not “to attack another government’s policy,” he said.