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LILLEY: Carbon tax ruling splits court, appeal to come

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Saskatchewan’s Court of Appeal struck a blow against opponents of Justin Trudeau’s federal carbon tax Friday.

In a split 3-2 decision, the majority of the court upheld the carbon tax as constitutional and yet as I read the decision, I can’t help but find that the court did so for political reasons rather than legal ones.

I’m not saying that simply because I support provincial jurisdiction in almost every court battle, which is why I opposed the Harper government’s attempts to establish a national securities regulator, but because the justices say so themselves.

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Writing for the majority, Chief Justice Robert Richards states the record before the court is that pricing greenhouse gas emissions is “not just part and parcel of an effective response to climate change.”

“It indicates that GHG pricing is regarded as an essential aspect or element of the global effort to limit GHG emissions,” he writes.

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Richards then goes on to reports from the World Bank and an affidavit from the federal government to back this up.

It’s all lovely but it is also not the question before the court.

The Saskatchewan Court of Appeal was asked to rule on whether the Greenhouse Gas Pollution Pricing Act was constitutional.

The government of Saskatchewan, under Premier Scott Moe, had argued the act violated the constitution on a number of fronts.

The appeal claimed the act violated the terms of federalism in the constitution by expanding federal government powers into areas of provincial jurisdiction and by ignoring section 53 of the constitution, which enshrines the concept of no taxation without representation.

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Under Trudeau’s legislation, cabinet gets to decide where the carbon tax applies, how much will be charged and when. The only reason this gets to stand is the court agreed with the federal government that it is not a tax but instead a regulatory charge.

The money collected under the carbon tax is paid into the federal government’s consolidated revenue fund and any disputes are heard by the Tax Court of Canada, but the majority of the court says it isn’t a tax.

As for jurisdiction, the majority found while the environment is a shared jurisdiction under the constitution, the pressing nature of climate change and the importance of using a carbon pricing scheme to deal with the issue made it within Parliament’s purview.

This is where the argument falls apart for me.

Why is a court looking at the effectiveness of a policy as part of their ruling?

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Ontario also has an appeal on the carbon tax and the largest province in the country has reduced GHG emissions by 22% since 2005 without a carbon tax.

Between 2005 and 2017, the province of Ontario went from producing 204 megatonnes of CO2 to 159 megatonnnes. That drop of 45 megatonnes is more than double the combined reductions of Nova Scotia, New Brunswick, PEI, Quebec and British Columbia.

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And it was done without a carbon tax.

The minority on the court found the act brought in by Trudeau was wholly unconstitutional.

They find it violates the constitution by giving the ability to change or expand the tax to cabinet exclusively and by trampling over the federal nature of confederation.

“The Act pervades the life and economy of each Province it affects. It unilaterally imposes
federal policy in place of Provincial policy on the same matter, a matter over which the
Provinces have exclusive jurisdiction,” Justices Ottenbreit and Caldwell write.

This decision will be appealed to the Supreme Court and we are still awaiting the Ontario ruling.

Anyone who thinks they can tell where the Ontario court will go based on this decision is fooling you.

Chances are, this will be settled at the ballot box in October before it makes its way fully through the courts.

blilley@postmedia.com

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