Court asked to decide if carbon tax constitutional

Scholars split on whether challenge by Saskatchewan will be successful

Saskatchewan is now making good on its threat to bring Ottawa’s carbon tax before the courts.

Depending on who you ask, Wednesday’s long-awaited move to refer the matter to the Court of Appeal for Saskatchewan is either an unlikely crusade with political overtones or a real legal conundrum that could go either way.

For John Whyte, a constitutional scholar at the University of Regina who once worked as a deputy minister under the NDP, it’s unlikely Saskatchewan will come out on top.

“I suspect they will not succeed,” he said. “They’ve got an argument that is intelligible, an argument that is plausible, but the federal arguments in each case are probably stronger.”

Bob Hawkins, a former Saskatchewan Party candidate who also teaches at the U of R, said it’s impossible to predict how the court will rule. A specialist in constitutional law, he said there’s “nothing frivolous” in the province’s case. “Who is going to win this?” he asked. “The answer is: Nobody knows.”

WHAT IS A REFERENCE CASE?

Saskatchewan is not suing the federal government, the experts explained. The province is bringing a reference case to its court of appeal, which will provide an advisory opinion on whether Ottawa’s carbon scheme is constitutional.

“Reference cases are useful in the sense that they clear the constitutional muddiness,” said Whyte.

But he called the move “aggressive,” and said it is rather uncommon for a province to take the step.

While the feds can go to the Supreme Court to seek a legal opinion, the provinces must begin at their court of appeal. From there, either party can appeal the court’s judgment.

Ottawa can also short-circuit the process by bringing the matter straight to the Supreme Court, Hawkins pointed out.

In the meantime, nothing changes. The federal government can still apply its carbon tax law.

The final decision is not binding. But that’s mainly a “theoretical” issue, according to Hawkins. Both sides are likely to respect the court’s opinion once they’ve exhausted their right to appeal.

WHO WILL WIN?

Both experts agree on what the feds will likely argue: The carbon pricing scheme looks a lot like a tax, and the Constitution says Ottawa can tax whatever it feels like.

“The federal government has plenary taxation power, and if this is characterized as a tax, then it’s hard to see what its vulnerability is,” said Whyte, who said he feels like the plan is “ultimately a consumer tax.”

But Hawkins said there’s another way of looking at the question.

“The provinces will argue this is not a tax at all,” he said. “They’ll say it’s a scheme to regulate prices ... The feds have said this is not a taxing scheme. Their aim is not to raise money, but their aim is to protect the environment.”

If that’s true, Saskatchewan could argue Ottawa is intruding on its right to manage its economy and resources. Whyte countered that the province’s jurisdiction over natural resources isn’t absolute — especially when it comes to pollution that crosses borders.

The two levels of government share responsibility for the environment, both agreed, with Whyte pointing to federal “paramountcy” in areas of shared jurisdiction.

He cited other federal powers: The right to implement international agreements, and to main- tain “peace, order and good government.” Hawkins called those latter points “a stretch.”

WHAT’S THE POINT OF ALL THIS?

Whyte said he’s convinced there will be a carbon tax, sooner or later.

He suggested the province’s latest move is also about politics. “I think that they are pressing the constitutional limits to make their opposition clear,” he said.

Hawkins said the case fits into a broader context, where the courts

Their aim is not to raise money, but their aim is to protect the environment

strive to maintain a balance of power within the Canadian federation. .

He said the court will want to avoid interpreting competing jurisdictions in a way that gives either side “too big of a win.”

“That overarching consideration will play a strong role in how the court reads the division of powers in the Constitution,” he said.

He wouldn’t hazard a guess on who has the stronger case, but stressed that both sides have a leg to stand on.

“The provincial government has a case and deserves to have that case decided by the courts,” he said.