As far as the fate of the federal carbon law goes — it is bound to end up in Supreme Court — three to two might as well be a tie
I waited until the weekend to sit down with the Saskatchewan Court of Appeal’s constitutional ruling on the federal carbon tax backstop, delivered Friday. It was apparent to me that this would be hot, exhausting work. The most important immediate fact about the ruling was that the Saskatchewan panel split 3-2, with a minority judgment as extensive and complicated as the primary ruling. Indeed, if you count the paragraphs, the dissent runs to 56 per cent of the length of the document.
To fully vindicate its carbon backstop, the federal government had to show that it was justified under the famous POGG grant — the general power given to Ottawa in 1867 to legislate “for the Peace, Order, and good Government of Canada.
If you remember that the federal carbon backstop excluded the provinces that had already adopted carbon taxes, you can see a problem with the federal government’s dependence on POGG. If greenhouse gas emissions as a subject are POGG-y, the existing provincial laws directed at those emissions are no longer constitutional.
But the Saskatchewan dissenters insist that this is logical circularity. Of course “the establishment of national standards” would naturally be a national concern: the real constitutional question is whether national standards as such are somehow positively required. Every party to the dispute agrees that it is important to cut greenhouse gases. But the responsibility to do this is planetary in nature.
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