What happens when a provincial government defies a federal law? We're about to find out

When Environment Minis‐ ter Steven Guilbeault sug‐ gested it was "immoral" for the government of Saskatchewan to deliber‐ ately defy the federal car‐ bon pricing law, the allega‐ tions of hypocrisy followed quickly.

Had Guilbeault himself not been arrested for break‐ ing the law? Hadn't he proudly climbed the CN Tower in 2001 to protest Canadian climate policy?

Conservative Leader Pierre Poilievre posted a pic‐ ture of Guilbeault being taken into custody by police in 2011 and later asserted that what was really "im‐ moral" was the Liberal gov‐ ernment increasing the car‐ bon tax while also flying to international summits.

But there's much more at stake here than whether Guilbeault has the standing to lecture anyone on the rule of law.

As an environmental ac‐ tivist with Greenpeace in 2011, Guilbeault indisputably broke the law when he scaled the CN Tower in Toronto. He was arrested, charged and punished - receiving a year's probation and a fine. (He also climbed atop the house of Al‐ berta's then-premier Ralph Klein to install solar panels in 2002. Charges reportedly were not pursued on that oc‐ casion.)

Guilbeault might defend what he did as an act of civil disobedience. Others might describe it as reckless and dangerous.

But when he broke the law, he did so as a private cit‐ izen. And there is a big differ‐ ence between a private cit‐ izen consciously defying the law and a government con‐ sciously defying the law. The latter, operating with democ‐ ratic authority and responsi‐ bility, is empowered to en‐ force laws.

Saskatchewan sends a message

Saskatchewan's government argues that it's fair for it to stop charging the carbon tax

on natural gas because the federal government decided last fall to exempt home heating oil from the carbon tax for the next three years a move that was widely seen as an attempt to address public concerns in the At‐ lantic provinces.

The wisdom and logic of that Liberal decision is at least debatable. And having introduced inconsistency into its carbon-pricing policy, it can be argued the Liberal government invited claims of unfairness. Saskatchewan Premier Scott Moe is hardly alone in complaining about the Liberal government's course of action.

But when a provincial gov‐ ernment has a problem with a federal law - a situation that has occurred once or twice in Canada's history - it has valid recourse to the courts, or the ballot box. It can ask judges to overturn the law, or it can ask voters to defeat candidates repre‐ senting the federal party that introduced the law.

When a government is willing to defy a law, it's fair to ask what message its con‐ stituents should take from that. Presumably, the govern‐ ment of Saskatchewan does not want residents of the province to believe its own laws are optional.

WATCH | Saskatchewan vows to defy federal car‐ bon pricing law:

"Well, I certainly wouldn't advise anyone to follow what we're doing," Dustin Duncan, the responsible minister in Saskatchewan, told CBC's Power & Politics last week. "But that's how serious we take this in Saskatchewan."

Of course, when people break the law they generally run the risk of being ar‐ rested, as Guilbeault learned in 2001. And Duncan has ac‐ knowledged there could be "consequences" for his gov‐ ernment's actions.

But Prime Minister Justin Trudeau's government seems disinclined to make this a criminal matter.

"I don't think anyone's talking about putting people in jail," Natural Resources Minister Jonathan Wilkinson told Power & Politics this week.

With an election in Saskatchewan expected this year, that might be depriving Duncan of a photo op he'd be happy to take part in. In‐ deed, it's hard not to notice that the Saskatchewan gov‐ ernment is making this move in an election year - and when polling suggests the race between the Saskatchewan Party and the NDP has narrowed.

But for the sake of its policy - if not the rule of law the federal government likely has to do something to re‐ spond. The only question is how.

What might happen next

The Liberals haven't tipped their hand as yet and it's there's not an obvious play‐ book for what a federal gov‐ ernment should do when a provincial government simply refuses to follow a law - and undercuts a legislated na‐ tional climate policy in the process.

The federal government can't return money it doesn't receive, so it stands to rea‐ son that the rebates sent to Saskatchewan residents could at least be smaller now. But that wouldn't ad‐ dress the fact that the carbon tax is not being applied as it is supposed to be.

Appealing to the courts might be an option. That could put the government of Saskatchewan in the position of defying not just the federal government but a direct ruling or order of the court.

One legal expert told iPolitics last week that the Canada Revenue Agency could be in a position to is‐ sue a multimillion-dollar fine against the Saskatchewan government.

WATCH | Breaking down Saskatchewan's carbon tax fight:

The federal government is scheduled to send $2.1 bil‐ lion to Saskatchewan next year under national health and social transfer programs. Withholding some of that funding might seem like an option, but doing so might al‐ so risk widening the conflict and bringing even more politics into what is essential‐ ly a legal dispute.

The Liberals perhaps can't afford not to fight, but they could conceivably undercut themselves (and help Moe) if their response seems irra‐ tional.

It's notable that neither Ontario and Alberta - two provinces led by premiers who also have attacked the carbon tax - have joined Saskatchewan in defying the federal law. Alberta typically isn't reluctant to pick a fight with Ottawa.

But whenever a line is crossed, the risk is that it will become much easier for oth‐ ers to cross that line in the future. And the next govern‐ ment to ignore the law might be one that Scott Moe or Pierre Poilievre oppose.

Poilievre might reject the carbon tax and he might en‐ joy needling Guilbeault. But for the sake of precedent and buttressing his own posi‐ tion on law and order - he has good reasons to make it clear now that laws are still meant to be followed.