​Appeal court rules federal carbon tax constitutional

REGINA — The federal government used a favourable court decision on its carbon tax Friday to put pressure on premiers who don't like it to stop fighting it.

The Saskatchewan Court of Appeal ruled in a split decision that the tax imposed on provinces without a carbon price of their own is constitutional.

“Today's decision is a win for Canadians and for future generations,” Environment Minister Catherine McKenna said in Ottawa. “This decision confirms that putting a price on carbon pollution ... is an effective and essential part of any serious response to the global challenge of climate change.

“It is time for Conservative politicians to stop the partisan games and join in on serious and effective climate action.”

McKenna straight out challenged new Alberta Premier Jason Kenney, Ontario's Doug Ford, Saskatchewan's Scott Moe and federal Opposition Leader Andrew Scheer: “Will you stop blocking climate action and join us in fighting climate change?”

Saskatchewan's reply was no.

“Though I am disappointed by today's ruling, our fight will continue on behalf of Saskatchewan people — who oppose the ineffective, job-killing Trudeau carbon tax. It was a 3-2 split decision and we look to appeal to the Supreme Court of Canada,” Moe said.

“No one in this nation should confuse climate action with the carbon tax,” he said. “We will continue to use each and every tool in our toolbox to block ... Prime Minister Justin Trudeau's ineffective carbon tax ... while we in this province continue with our fight against climate change.”

The Saskatchewan Party government had asked the court for its opinion on the levy that came into effect April 1 in provinces without a carbon price of their own — Saskatchewan, Manitoba, Ontario and New Brunswick.

Alberta has a retail carbon tax brought in by the former NDP government, but Kenney has promised to move quickly to dump it and fight any effort by Ottawa to impose its own.

“We disagree with the narrow ruling by the majority that the federal government has the power to ensure a provincial minimum price on carbon, and will be joining Saskatchewan in their appeal to the Supreme Court of Canada,” Kenney said in a statement.

In a 155-page decision on the reference case, Chief Justice Robert Richards wrote that establishing minimum national standards for a price on greenhouse gas emissions does fall under federal jurisdiction.

He said Ottawa has the power to impose its carbon tax under a section of the Constitution that states Parliament can pass laws in the name of peace, order and good government.

Two of the five Appeal Court justices suggested the federal government's actions are not a valid use of that section of the Constitution.

Scheer said in a statement that the Liberal carbon tax “isn't a plan to lower emissions. It's just another cash grab which is hurting already overtaxed Canadians.”

Saskatchewan told a hearing before the Appeal Court that the question wasn't one of climate change. It argued the federal tax is unconstitutional because it's not applied evenly across the country and oversteps into provincial jurisdiction.

Richards wrote that there is no constitutional requirement that laws enacted by Parliament must apply uniformly from coast to coast to coast.

He also said the environment “is not a legislative subject matter that has been assigned to either Parliament or the provincial legislatures under the Constitution Act.”

Federal government lawyers argued that Ottawa has the power to put a price on pollution, because greenhouse gas emissions are a national concern.

The two dissenting judges said it is “constitutionally repugnant” for Ottawa to exercise its power to control measures taken by provinces on emissions.

“The notion that national benchmarks are required merely speaks of a federal dissatisfaction with provincial policy and a desire to impose federal policies on those provinces,” they wrote.

“It is a dispute about what the right numbers are and who gets to decide what they are.”

Ontario is also challenging the federal tax and is waiting for a decision after arguing its case in court last month.

Ford, speaking in Bracebridge, Ont., after meeting with officials about flooding, said Friday's decision is just the beginning.

“This series isn't over yet. That's Game 1. We still have other games to play,” he said. “If we can't beat them in the courts, we're going to beat them at the ballot box in (the) October (federal election).”

New Brunswick Premier Blaine Higgs promised to join what he said will “almost certainly” be an appeal to the Supreme Court for its opinion.

“Our legal efforts do not mean that New Brunswick will stop its efforts on important climate change initiatives. New Brunswick remains committed to doing its part to reduce carbon emissions.”

Manitoba filed papers in Federal Court last week for its own challenge.

Justice Minister Cliff Cullen said Manitoba's case is different because the province had planned its own, lower carbon tax, but it was rejected by Ottawa.

“We have filed for a judicial review, not just on constitutional grounds, but also on the grounds that Canada acted unfairly by rejecting our plan,” he said.

The federal government's carbon price starts at a minimum of $20 a tonne and is to rise $10 each year until 2022.

© 2019 The Canadian Press