Pigs will fly before the fantasy that Ottawa’s carbon tax ‘invades provincial jurisdiction’ will ever persuade a court

Posted on October 24, 2016, 12:26 am
10 mins

PHOTOS: Who says Jason Kenney is full of baloney? These guys do! And they’re the Fathers of Confederation! Below: PC leadership candidate Mr. Kenney; federal Liberal Veterans Affairs Minister Kent Hehr, MP for Calgary Centre; and Brian Jean, leader of the Wildrose Opposition in the Alberta Legislature (Wildrose.ca photo).

Ottawa’s carbon tax is “is an invasion of provincial jurisdiction,” says Jason Kenney, frontrunner in the race for the leadership of the Progressive Conservative Party and, he hopes, eventually the premier of Alberta.

Brian Jean, leader of the Wildrose Opposition, who would also like to be the Alberta’s premier some day, had this to say on the same topic: “If they are infringing on our jurisdiction we have to take them to task on it.” And that means, he told the Calgary Sun’s Rick Bell, that if he were to become premier, he would take the province to court over the tax. “Absolutely, 100 per cent!”

jasonAnd that, both men presumably pray, is all most Albertans get from this yarn. The reason is simple: It’s baloney, hooey, a juicy Alberta cow flop, and both of them have to know it.

Let me explain, since Mr. Bell didn’t bother in his extended explication of Messrs. Kenney’s and Jean’s opinions.

Let’s start by asking where the two conservative politicians got the idea Prime Minister Justin Trudeau’s carbon tax is an invasion of provincial jurisdiction.

Not from the Fathers of Confederation. In 1867, when they drafted the British North America Act, the Fathers included Section 91, which sets out the responsibilities of the federal and provincial governments. Of Ottawa it says: “…the exclusive Legislative Authority of the Parliament of Canada extends in all Matters coming within the Classes of Subjects hereinafter enumerated, that is to say … 3. The raising of money by any Mode or System of Taxation. …”

Readers are encouraged to read all of Section 91 for themselves. They should do this just in case they think the author of this commentary is leaving something out to be sneaky or deceptive. They should also read it because it’s a good idea to understand the workings of your own country – if only as protection against deceptions perpetrated by politicians.

kentNor did Mr. Kenney and Mr. Jean get this idea from the drafters of the rest of Canada’s Constitution, which became the supreme law of the land in 1982. Those Canadians included Section 91, along with its eccentric 19th Century capitalization and pretty well everything else in the BNA Act, in the new all-Canadian Constitution.

That included Section 92, which deals with provincial responsibilities. Section 92 has this to say about taxation: … provinces may make laws about “Direct taxation within the Province in order to the raising of a Revenue for Provincial Purposes.”

Now, if anyone had asked me, I would have said this made provincial sales taxes illegal. Instead, someone asked the Supreme Court of Canada, which ruled back in 1943 that sales taxes are direct taxes, with your (now obsolete) smoke shop just acting as the tax collector. I’m not being hyperbolic about the smoke shop, either, by the way.

This means that now and again the Supreme Court will make a ruling that defies what the drafters of the Constitution clearly had in mind. But don’t get your hopes up about Mr. Kenney’s fairy tale enjoying such a convenient fate.

Let’s read the relevant line from Section 91 again. The federal government, the one now led by Mr. Trudeau, has the Constitutional authority to raise money by “any Mode or System of Taxation.” Is that clear enough? Any. Mode. Or. System. Of. Taxation.

jean-l-jpgWhether you (or Mr. Kenney, or Premier Brad Wall of Saskatchewan, whom Mr. Kenney termed the real leader of Western Canada during his tête-à- tête with the Sun’s Mr. Bell) agree, it would be quite difficult to get the Supreme Court or any other court accept the proposition a federal carbon tax is an invasion of provincial jurisdiction. Ain’t gonna happen.

Now, Mr. Kenney and Mr. Jean are both former federal Members of Parliament. One would think they understood this. In fact, I would say it’s extremely unlikely they don’t.

This, combined with the fact he’s a lawyer, may explain Mr. Jean’s cautious words in the quote attributed to him: “… if they are infringing on our jurisdiction. …” Since he knows perfectly well they aren’t, he also knows this legal pig won’t fly. However, he presumably hopes the base won’t notice.

Mr. Kenney, a career politician, is not admitting even that much, although he too certainly has to know his promise is poppycock, designed to fool voters who aren’t familiar with the Canadian Constitution.

Mr. Wall, by contrast, isn’t actually threatening to sue over the same thing. Right now he’s arguing Ottawa can’t tax provincial Crown corporations – an irony, since as a market fundamentalist, I’m sure the Saskatchewan premier would love to privatize those publicly owned companies. He’s also whining about how the federal tax isn’t fair to provinces whose leaders are climate-change deniers. As for his claim Ottawa will siphon $2.5 billion from Saskatchewan, even the Canadian Press calls that baloney.

So Mr. Kenney, with Mr. Jean bobbing along in his wake, is making a promise he knows he can’t keep. Of his legal argument, he surely knows that dog that won’t hunt. If he were to proceed with it, he’d be hosing away tax money on a guaranteed lost cause – strange behaviour for someone who vows to be stingy on behalf of taxpayers.

Now, both Mr. Kenney and Mr. Jean are welcome to argue the Constitution of Canada should exclude carbon taxes from federal jurisdiction. They could even work up a campaign to change the Constitution. And good luck to them! The Constitution is not easy to amend. (Right-wing trolls mustn’t blame me for this. I played no role in drafting the Constitution in either 1867 or 1982.)

Likewise, they can argue the carbon tax is somehow like the National Energy Program, and that the NEP was a bad thing. It’s not a particularly good case, as has been noted here before, but there’s nothing an Alberta politician likes better than a public scrap with Ottawa, and that even includes Premier Rachel Notley and her NDP.

And they can make the argument (if they dare) that climate change isn’t real. Alternatively, they can pay ritual obeisance to the idea but act as if they don’t believe it – which is what both Mr. Kenney and Mr. Jean are doing.

None of these positions can be simply refuted without a lot of argument, and, even then, many of Mr. Trudeau’s political foes won’t accept the evidence.

But the answer to the fantasy Ottawa is infringing on provincial jurisdiction with a carbon tax, or any other tax, is right there in black and white in the words penned by the Fathers of Confederation, now entrenched in the Constitution Act of 1982, the ultimate law of the land.

So Calgary Centre MP Kent Hehr, the minister of veterans’ affairs in Mr. Trudeau’s cabinet, was entirely justified when he scoffed at Mr. Kenney’s big talk.

If you ask me, counting on the ignorance of your own support base to spin a fairy tale you know will never come true is rather poor form.

This post also appears on Rabble.ca.

11 Comments to: Pigs will fly before the fantasy that Ottawa’s carbon tax ‘invades provincial jurisdiction’ will ever persuade a court

  1. Bill Malcolm

    October 24th, 2016

    It’s about impossible to find a certain study paper regarding the right of the Feds to impose a carbon tax, since Google is filled with the claptrap of Wall’s caterwauling and posturing. However, back in 2009 or so, some learned academic or other, from I think Carleton U, produced a paper on the legality of a federally imposed carbon tax. I accessed and read it about a year ago after a visit to BC where they had already imposed a provincial carbon tax.

    Yes, the upshot of the carefully worded paper was that it’s legal for the Feds to do so provided it’s labelled as a tax, so now Kenney and Wall can go toast marshmallows in commiseration, while no doubt deciding to act like silly little boys and throw hissy fits in pulic. How these puerile dumbbells get elected in the first place is beyond me. Except, I suppose, they appeal to voters by promising things they don’t have a hope in delivering. It’s caveat emptor for the general public to educate itself rather than rely on politicians, forever known to shade the truth or imply something without actually saying it out loud. That makes most loudmouth type of politicians’ opinions and posturing about as reliable as the proverbial old wives’ tales – in fact probably less so, as there is often a grain of truth in the old adages.

    • Geoff

      October 25th, 2016

      I read recently that Wall had the opportunity to employ a carbon tax quite a few years ago and that if he did there would be billions of dollars created to support new initiatives, he’s really just an embarrassment at this point with his childish antics.

  2. Bob Raynard

    October 24th, 2016

    “Counting on the ignorance of your own support base to spin a fairy tale…is rather poor form”

    But look how well it works for Sun newspapers!

    One of my favorites, and David alluded to it recently, is the topic of transfer payments. The pervasive effect of the Rage Media Machine really shows itself in this regard. I would love to circulate a petition demanding that Joe Ceci refuse to write a transfer payment cheque to the federal government until the Alberta economy improves, and see how many people show their lack of understanding on this topic by signing it.

    If someone doesn’t know what transfer payments are, that’s one thing; they are just not politically involved. On the other hand, if they know about the transfer payment program, but are under the impression provincial governments write a cheque, it really shows how they are being misinformed by the media outlet they choose. A few weeks ago Rebel Media had a headline that went something like “How Big is Alberta’s Transfer Payment? Ask Joe Ceci”

    • St Albertan

      October 24th, 2016

      “Counting on the ignorance of your own support base to spin a fairy tale…is rather poor form”
      That “poor form” has been the cornerstone of politics in the “fly-over states” down south, ever since Rob Anders worked on Jim Inhoffe’s senate campaign. Jason Kenny and all the rest who want to create a wedge political battlefield over provincial rights are just extending the “Tenther” faction of the Tea Party. Their goal is to package regional grievance with social conservatism to force former moderates to hold their noses while the Red Rose Tea Party (only in Canada eh? Pity) takes over small c fiscal conservativism in perpetuity. Welcome to Kenny world where, all the the roller coasters are unregulated and all the behaviors that his base don’t like, can’t be tolerated..

    • Expat Albertan

      October 24th, 2016

      I don’t mean to be nit-picky, but I think what you are referring to is ‘equalization payments’, a particular form of transfer payment that gets uninformed westerners in a huff. That aside, your points are all valid (and quite clever).

      • Bob Raynard

        October 25th, 2016

        Hi Expat,

        You are correct, I did mean equalization payment.

  3. 9 sided

    October 24th, 2016

    Yeah so we get caught paying for lawyers on both sides and court costs. Maybe Kenney could sell his blue truck to pay for this boondoggle.

  4. Val

    October 24th, 2016

    it is absolutely obvious – the “carbon tax” is a fresh one stream of revenue for doing nothing. just like “tobacco tax”, “gasoline tax”, “sale tax”, “liquor tax”, etc.
    do those taxes had accomplished anything else beside of feeding gigantic bureaucratic machine, which is employed to manage this money flow for own benefits?
    i guess 50 years from now will be introduced tax on fart, because nothing else will be left for taxation.
    nevertheless i’m curious, what could happens if province/s simply will refuse to charge own habitants and businesses new tax, imposed by the feds?
    could Ottawa pass the martial law and send troops to collect this tax door to door?

    • Bob Raynard

      October 25th, 2016

      Val, the idea of the carbon tax is to reduce consumption. Obviously it will not eliminate combustion of fossil fuels, but if people don’t want to pay it they will hopefully look for ways to reduce how much they burn. When I see vehicles idling when it is plus five degrees, or driving a block to get their mail, I think the carbon tax cannot get here soon enough.

      I love collecting idiotic statements like ‘No one goes to that restaurant, its too crowded’ or ‘You can’t get there from here’. Thanks to Rage Media’s reaction to the carbon tax I have another: “With the carbon tax I won’t be able to afford to go anywhere, and its not going to reduce emissions anyway.”

    • Philippe Sismondi

      October 27th, 2016

      “Absolutely obvious”? Not to me. Look up “externality” in a first year economics textbook, and see if you can get the drift.

  5. David

    December 27th, 2016

    What is Kenny blowing off about the federal carbon tax for when Alberta will have its own carbon tax starting January 1st. As I understand it Trudeau said the federal carbon tax would apply only if the provinces don’t levy a carbon tax of their own so if I have this right the feds carbon tax will be precluded by Alberta’s levy.

    But in reality Kenny and Jean are only talking to their base supporters who will blindly take their word for anything. This is only to agitate the base against non ‘true believers’.


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