Alberta Politics
The Supreme Court of Canada, leastways, the building that it occupies (Photo: David J. Climenhaga).

Supreme Court settles the carbon pricing matter in Ottawa’s favour – and maybe a lot more than that

Posted on March 26, 2021, 2:44 am
8 mins

Canadians worried about the survival of the country had cause for relief yesterday morning with news the Supreme Court of Canada had ruled 6-3 the federal government is entitled to impose a national carbon-pollution pricing system – in other words, to act like the government of Canada.

Had the court done what a cabal of climate-change-denying provincial Conservative premiers had hoped to achieve, one almost wonders what the point would have been of remaining a confederation.

Yesterday’s ruling settles that question for a generation, if not longer, at least as far carbon pricing goes. Quite possibly for a lot more than that, too.

Alberta Premier Jason Kenney acknowledging a friendly question from a reporter (Photo: Screenshot of Alberta Government video).

Even Alberta Premier Jason Kenney crankily admitted at a morning news conference that “there’s no court we can appeal this to,” while vowing, naturally, to make a political fight of it. 

It remains to be seen how that will work out, but it seems likely “The Resistance,” as Canada’s Conservative leaders used to like to think of themselves back when they were riding a little higher, will try to think up more taxpayer-funded mischief as long as there is a Liberal government in Ottawa.

Since the case was specifically about the federal government’s right to impose measures to curb the production of carbon to slow or reverse global climate change, Canadians worried about the survival of the planet have cause to celebrate too. The bad news is that it will take a lot more than a modest carbon tax to move ahead on that important issue, on a national or planetary scale. 

The long-shot strategy of the Conservative governments of Alberta, Saskatchewan and Ontario, which referred the constitutionality of the Greenhouse Gas Pollution Pricing Act of 2018 to their respective courts of appeal, was torn from the pages of the Book of Donald Trump, whence most Canadian Conservatives get their inspiration.

Since the federal legislation put a price on carbon and allowed it to be imposed in provinces that took inadequate measures on their own, they argued this interfered with the constitutional jurisdiction of provinces over natural resources, and that they should be able to tailor their environmental policies to their own circumstances. 

In practice this meant, as with the former U.S. president, always saying they were about to come up with something better, and rarely actually coming up with anything at all, or at least only as little as possible.

Conservative Party of Canada Opposition Leader Erin O’Toole (Photo: Erin O’Toole/Flickr).

When the three provincial appeal courts produced a split decision, Alberta’s siding with the Conservative position, the case found its way to the Supreme Court. 

Six Supreme Court justices yesterday concluded that since global warming is an actual thing, and moreover a thing that causes harm beyond provincial boundaries, it is appropriate for the federal government to deal with it under the “Peace, Order and Good Government” clause of the Constitution.

If you wonder why the federal government’s lawyers didn’t rely on the extensive taxation power granted to Ottawa in the Canadian Constitution since the passage of the British North America Act at Westminster in 1867, that is explained in a useful plain-language primer published yesterday by the Supreme Court.  

“The majority noted that the term ‘carbon tax’ is often used to describe the pricing of carbon emissions,” it said. “However, they said this has nothing to do with the concept of taxation, as understood in the constitutional context. As such, they also concluded that the fuel and excess emission charges imposed by the Act were constitutionally valid regulatory charges and not taxes.”

Prime Minister Justin Trudeau, who actually has a plan (Photo: Justin Trudeau/Flickr).

Upon the announcement of the decision in the reference case, supporters of the Conservative governments of Alberta, Saskatchewan and Ontario – with Manitoba, New Brunswick and Quebec making supportive noises – immediately retreated to proclaiming that while they acknowledged the Court’s decision, that doesn’t make the law right. 

They pledged to fight on against carbon taxes – the easiest corner for Conservatives to retreat into nowadays whether they’re outright climate-change deniers or merely climate-change-skeptical opportunists, never mind that the idea was originally championed by the Canadian right because of its market-based approach.

Conservative Opposition Leader Erin O’Toole vowed if he ever gets power to dump the law, which he termed a “Liberal carbon tax” while regurgitating old conservative claims environmental action kills jobs and puts Canada at a competitive disadvantage. 

Channeling Mr. Trump, he promised “Canada’s Conservatives will put forward a clear and comprehensive climate plan focused on reducing emissions.” Believe it when you see it. 

But until Conservatives actually have a plan to lay on the table and contrast with that of Prime Minister Justin Trudeau’s Liberal Government, none of this means much.

Premier Kenney trowelled it on with windy statements circling the wagons and defending the time and money spent on this long-shot appeal. 

He claimed in a news release “a strong majority of Albertans elected this government because of our commitment to repeal the previous government’s carbon tax,” a questionable interpretation of the reasons for the outcome of the 2019 provincial election that brought the United Conservative Party to power.

He also described the Gang of Six as “a coalition of Canadian provinces representing 80 per cent of the Canadian population” – which suggests all their citizens all hold the same opinion – and made the dubious claim the decision “undermines our constitutional system.” He recited tired UCP talking points like “No More Pipelines Law” and “job-killing carbon tax.” 

Hinting at the UCP’s strategy at his news conference, Mr. Kenney seemed to resist the idea of Alberta collecting its own carbon levy – too much like what the NDP did, presumably. Better to demand the money from Ottawa and then blame it for collecting it, one supposes. 

19 Comments to: Supreme Court settles the carbon pricing matter in Ottawa’s favour – and maybe a lot more than that

  1. Dave

    March 26th, 2021

    Oh what fun it was to watch Kenney, O’Toole and other Conservative climate change ignorers wriggle on their own hook here. They were the ones who wanted an answer from the Supreme Court and spent plenty of our tax dollars on this political crusade. Well, they got an answer, the one that was expected from the beginning, but not the one they wanted. Can anyone say waste of time and waste of money? Perhaps one day they may canonize Kenney as the patron saint of lost causes. He sure seems to be trying hard to get that title.

    So Kenney said he hoped this wouldn’t allow further “intrusions” by the Feds into provincial areas. Nice spin, but the court actually just said it was not an intrusion. I think the judges understand carbon emissions whether from factories in Ontario, oilsands plants in Alberta or cars in one of our larger cities, do not remain within provincial boundaries. In fact they correctly acknowledged it is a worldwide problem.

    Mr O’Toole is even worse. His maudlin concern about making poor taxpayers pay is admirable, but he has conveniently forgotten about those offsetting rebates. He seems to have an advanced case of political amnesia, but then that’s not surprising. He is the same guy who campaigned for party leadership saying he would not kick that Sloan guy out of his party and then did exactly that after he won.

    Yes, two thirds of the country elected resistance Premiers who decided to fight against the carbon tax. However, its not that simple. The largest province that voted for anti carbon tax Ford as Premier also voted for our pro carbon tax PM.

    No doubt the resistance will fume and sputter a bit more until they realize how foolish and ineffectual they look. Perhaps their last hopes will rest on O’Toole fighting the next Federal election against carbon taxes again. We’ll see if he is any more effective than Scheer on this. I expect the Conservatives to repeat as Charlie Brown while the Liberals play Lucy with this political football.

    The people have spoken and now the courts have too. It is time to move on.

    Reply
  2. Anonymous

    March 26th, 2021

    The UCP has made blatant fools of themselves, and at the expense of Albertans. Furthermore, how are the UCP fighting something that Alberta has, due to the Alberta PCs, and the UCP putting back in what the NDP were giving Alberta, that the oil companies said they wanted? We have a carbon tax, due to the Alberta PCs, and Ed Stelmach, and what Rachel Notley gave us, and the UCP put that back in. Pollution doesn’t follow boundaries, so the carbon tax is also a federal government matter too.

    Reply
  3. tom

    March 26th, 2021

    The performative politics will continue. . . .

    Reply
  4. Public Servant

    March 26th, 2021

    Kenney hid in the Sky Palace rather than show up for work yesterday.

    Can we dock his pay and put it towards the billions he’s wasted?

    Reply
  5. Abs

    March 26th, 2021

    Strong majority? I guess if you consider 4.88 percent of voters on election day a strong majority, but those days are long gone. Perhaps he should recheck the audience. He’s in the doghouse now. Might as well bark at the moon while he still can. This old trope is tired, tiresome and tedious.

    Reply
  6. Political Ranger

    March 26th, 2021

    So now, the conservatives are resorting to out and out lying! Should not be surprised since their ideological leader, tRump, did just that half a dozen times per day, every day.
    Why would anyone, with half a brain, vote for a person or a party that has as a primary campaign plank just lying to the electorate?
    These dimwits have absolutely nothing to offer any sane, non-criminal citizen. Nothing!

    Just the latest piece of evidence of the empty and incompetent offerings from our local conservative mob, Shandro is out today pleading that he wants to “regain trust” with the doctors. I can hear the doctors all over the province spitting out their coffee and then laughing themselves silly. This sorry excuse for a minister has got absolutely nothing to offer the people of Alberta, in the middle of the pandemic, that’s well into it’s third surge – and he knows, or has been told, that he needs some serious medical help. What a dope!

    Reply
  7. ema

    March 26th, 2021

    The sweetest thing about the SCC ruling yesterday was that it was rendered by the Right Honourable Richard Wagner, who was a Harper appointee!

    Reply
    • jerrymacgp

      March 27th, 2021

      Good point. It illustrates how much healthier our judicial system is when compared to the heavily politicized gong show south of the border. We don’t really have “liberal” justices or “conservative” justices, we just have justices. It would be illuminating to read a legal scholar’s analysis of why this is, when both the US & post-Charter Canadian Supreme Courts have had such similar mandates.

      Reply
  8. karl roth

    March 26th, 2021

    yay for Canada the nation !

    as per usual the Con response is spewing half truths, distortions and outright lies and AB’s Stumpy McWhiner a particularly egregious and habitual offender

    am of the opinion that the provinces have too much power (and the prime minister’s office for that matter),
    also that we need no barrier interprovincial trade, trade and professional certification valid across Canada and the same health care for all Canadians including some sort of support for prescriptions (when i spent a couple of years in Montreal, Quebec had pretty good graduated income based program, dunno if it’s still the same) and basic dental

    i know, dream on all of the above siGh

    methinks if Canada is going to do well going forward in this new post war economic and political world we need to act more like a nation and less like a collection of mostly self interested provinces that are too obsessed with defending their turf and don’t see or are indifferent to the bigger picture.
    (e.g. howzabout a realistic and fair national energy plan)

    Reply
  9. Ross

    March 26th, 2021

    For 2020, our 2 person family cash-back rebate was $735. In Covid time, we did not spend even half that amount on gas, let alone the tax portion. It’s hard to calculate the tax portion on heating gas in a condo, but we probably came out ahead there. Let’s hope Mr Kenney’s referendum question makes clear the average tax rebate difference.

    Reply
  10. Bruce Turton

    March 26th, 2021

    Once again big oil (and gas and coal) in the Excited States are calling for a ‘carbon tax’ in the country. And yes, we should always be suspicious when those who pollute the most want all the rest of us to pony up to the till to pay so that the biggies do not have to do that at all. “The bad news is that it will take a lot more than a modest carbon tax to move ahead on that important issue”: like a quota system for carbon the does not favour anyone with more $$$’s than the rest of us – as the current ‘carbon tax’ does now. If we are truly in a “climate emergency”, then just possibly we could act like that is the reality and do something that actually deals with climate disruption. Or, we could continue with tar sands pipelines, Liquified Natural Gas plants, delinquent fossil fuel tax dodgers, no penalties on gas guzzlers, no favouritism for those who grow our food, etc..

    Reply
  11. Scotty on Denman

    March 26th, 2021

    Perfect screen shot! Kinda like a furtive, eye-averting, dog-ate-my-homework look—with a meek, ‘heh-heh’ kinda sound-track—or maybe: “I tawt I saw a puty-tat…”

    So, too, the K-Boy’s maudlin notion that the final say of the federal SCoC is unfair. But scanning the decision that pricing GHG emissions is indeed within federal constitutional jurisdiction, at least one Justice referring to the legal matter as yet “unclear” (presumably because three of the Bench dissented from the double-sized majority), the written majority decision is fairly concise and simple while the written minority position is fairly lengthy and arcane.

    I’m no lawyer, but it appears this matter was carefully examined from every angle and in every detail, and the majority fairly found GHG pricing as important to the Canadian people and federation, while the dissenting opinions seemed, to me, anyways, to concede the majority opinion would not grievously wound the federation, its legal doctrines and laws. I think it’s fair to say the minority lightly quibbled (one going on and on about the “pith” of various doctrines and precedences which he alleged the majority might have offended). But did I learn anything by reading (scanning) this tome? Well, I’m certainly going to try the word “residuum” in our next Scrabble™ game (you’ll just have to take my word that getting it by my significant other will be about as difficult as amending the Constitution).

    Of course it’s hard to say to what extent Jason Kenney’s references to the federation and the Constitution is, like tRump’s, delusional or diabolically smart-ass. They’re like ingredients listed below the nutrition contraindications on any can of beans: they’re all there, for sure, but the recipe is, proprietorially, intellectual property protected by enthralling dysinformation. Yet, surely, the UCP has its legal counsel which, just like the real bureaucracies of public enterprises, must generate reams of paper, if not googley bits of digital myxinfo. Anyways, that’s sure gotta cost a lot of money.

    As to K-Boy’s windy defences of the public cost for this particular SCoC appeal process, it’s rationalization certainly is similar to a number of his other notable expense defences—like, of the cost of War-Room mobilization against Prime Minister Justin Trudeau, Michigan Governor Gretchen Whitmer, and Bigfoot, of speculative pipelines to nowhere, of “Plandemic” tracking-Apps, of legal costs with regard electoral cheating and, of course, the present tab to challenge that GHG-pricing is a legitimate federal concern. Although “Peace, Order and Good Government” might pithily fit in a fortune cookie, records of all these defences, the legal opinions, the trials and appeals, the reactive communiques and public pronouncements and, of course, the bills, legal and quasi~, must amount to a fair size—like a regional bit-coin mine, a veritable, if not virtual or virtuous, archive.

    Including grub, ammo and Bibles, this archive must take up most of the space within the climate-change-deniers’ circled wagon laager. For sure, the tighter it gets in fly season. If paranoia native to the Little Redoubt on the Prairie hallucinates foreign covetousness of these scared Scrolls of the Lost Cause—like Greater Idahoans, Montanan Redoubters and tRumpublicans do of theirs—then bending a little history might just be advisable, if only to pass the time waiting for Bitumageddon following the Great Pipeline Rapture. They should know:

    …that, gathering at the sovereign border of a mighty, world hegemon, caravans of refugees fleeing slavery, rape and murder applied for citizenship, or temporary visitors’ visas—or anything to escape these fates if they remained on the far side of the river.

    They pleaded desperately to be allowed in, pledging any honourable service by which their hoped-for saviours might benefit. Finally, after the tail end of their vast caravan was already under attack, they were granted permission to cross the border only to have their womenfolk accosted, their children seized, their humanity violated. Some Senators of the wobbling empire warned no good would come of such mistreatment while others accused the victims of crimes committed instead by their imperial hosts. At last the refugees violently rebelled and flooded out of their frontier concentration camps into one of the most ancient parts of the Empire.

    Imperial historians described a rampaging orgy of violence and violations by enraged savages. Yet the migrants were Christians, many literate—more so than the peasants of this frontier imperium. When they eventually migrated to the ancient, former capitol of a civilization lost some four centuries before, they didn’t destroy property or harry imperial citizens but, rather took possession of what they figured must be most valued by all and for which citizens would willingly forfeit food and riches. It was the public archive. Then they waited to be sated, praying to Jesus and the over-god and the other-spirt all the while. And so Roman Athens was spared.

    (It was only after several years of trying unsuccessfully to negotiate a Pale of Settlement in return for which they’d protect the Empire from other, non-Christian illiterates seething upon the fabled hyperborean wastes did these Goths decide to march on Ottawa—uh—I mean, Rome. The rest is history.)

    How is any of this relevant? I’ll let you know after reading the dissenting parts of the decision. It’s in there somewheres, you’ll see.

    Despite the info-riches at the UCP’s fingertips, it eschews them for bit parts in Horton Hears a Who—or maybe Canticle for Leibovitz . I’d be funny if it wasn’t so serious: we’ve had a taste of what the UCP will resort to in order to avoid losing face—or be seen trying to find it. Albertans should be proud of their province. I just hope they’re not so foolhardy as to endorse whatever sordid “political” response to the SCoC decision might be coming out of The Great Schism.

    Scrabble™ history, you gotta love it.

    Reply
  12. Just Me

    March 26th, 2021

    What more can be said about the Crying & Angry Midget’s life?

    It’s fast becoming like a Bigfoot cartoon.

    Even the Postmedia hacks that continue to defend Kenney’s buffoonish antics are considering retirement post haste, lest they lose what little remaining credibility they have.

    What is even more startling is that Kenney declared he actually thought he was going to win the case before the SCC. Thus, he considered no back up plan to save face. First, $1.4 B and multi-billion dollars in loan guarantees for a faint hope of a pipeline. Kenney’s lust for gambling with other people’s money just proves that he is a living caricature of a wannabe Daddy Warbucks.

    I suspect that the knives are out for him now in the UCP caucus. Kenney is so mortally wounded right now, watching the caucus turn on him will be like watching jackals tear apart a helpless lamb.

    Reply
  13. Farmer Brian

    March 26th, 2021

    It is truly unfortunate that people are so gullible. This belief that a so called carbon tax will lower ghg emissions has unfortunately been proven false in the province of B.C. This province has had the longest running carbon tax first instituted in 2008. In 2007 the ghg emissions per capita in B.C. were 14.78 tonnes. By 2018 the ghg emissions per capita in B.C. had been reduced to 13.58 tonnes per capita, a reduction of just over 8%. Everybody points to this and says the tax must have worked. So let’s compare that to the rest of Canada during the same time period. In 2007 ghg emissions per capita in the rest of Canada were 23.73 tonnes. By 2018 the ghg emissions per capita had been reduced to 20.62 tonnes, a reduction of just over 13%. So how is it that the much celebrated carbon tax in B.C. resulted in a lower per capita decrease in ghg emissions than the rest of Canada?! The fact of the matter is that what I would call a sin tax on the consumption of fossil fuels didn’t and doesn’t work. It is apparent to me that the stick method doesn’t work, maybe the carrot approach would be more effective!

    Reply
    • maximum

      March 27th, 2021

      Unfortunately, gullibility seems to cut both ways. For your comparison to be valid, you need to study the ghg emissions for all provinces from 2007 to 2018 and compare them to BC on the basis of whether or not they had a carbon tax of some kind. The largest drop in Canadian ghg emissions for that period was due to Ontario closing all of it’s coal powered generating plants. This significantly reduces the Canadian per capita average, independent of any effect from a carbon tax, and makes your comparison one of apples to oranges until you’ve factored the coal plant closures out of your calculation. The stick (carbon tax) works for some, and the carrot (energy rebate) works for others. The ones that won’t change their energy consumption, will subsidize those who do.

      Reply
      • Farmer Brian

        March 29th, 2021

        Maximum I am very glad you brought this up. In Canada there are 5 provinces that have reduced emissions since 2005 compared with 2018 and 5 provinces where emissions have gone up. The five provinces that reduced emissions are: Quebec -4%, Ontario -18.8%, P.E.I. -19%, Nova Scotia -26.4% and New Brunswick -34%. None of these 5 provinces had a carbon tax before 2017. The five provinces with increased emissions are: Newfoundland Labrador +4.76%, British Columbia +5.6%, Manitoba +8.45%, Saskatchewan +12.1% and Alberta +17.5%. Two of these provinces have had the longest running carbon taxes in Canada, Alberta instituted a carbon tax program on industrial emissions in 2007 I believe and of course British Columbia instituted their consumer carbon tax in 2008. Does it look to you like carbon taxes work?!

        Reply
  14. Brett

    March 26th, 2021

    Jason Kenney is embarrassing himself.

    Erin O’Toole is in a box. His Party is divided, his caucus is unhappy with his leadership or lack thereof. The Party just last week denied climate change. Former Cabinet Minister Lisa Rait has publicly voiced her opinion that lack of an environment policy was main reason for her defeat in the last election….and that of the her Party. A number of polls appear to confirm this.

    On Thursday, the Petroleum Institute of America, the lobby arm of major US oil corporations, formally acknowledged theirsupport of carbon taxes to control emissions.

    So, what will the Conservative Party do? Continue their rejection of climate change, promote the flat earth theories, reject the existence of dinosaurs (other than those in their own Party)? They have dug themselves into a huge hole. The need to change the channel has become desperate. Time is running out.

    Reply
  15. jerrymacgp

    March 27th, 2021

    Not having read the decision myself, it’s entirely possible that this point is addressed somewhere in the text, but none of the reporting I’ve seen mentions it, but … one of the arguments in favour of the federal position I felt held weight was that Canada made a commitment on the world stage in signing the Paris Agreement, and no sub-national government should be permitted to undermine such commitments.

    While I’m at it, what about the fact that many of the provinces routinely tread on federal jurisdiction over foreign affairs & international trade by establishing those provincial trade offices overseas???

    Reply
  16. Neil Lore

    March 29th, 2021

    Am I the only one concerned that three Supreme Court justices sided with the climate deniers?

    Reply

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