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Constitutional doesn't mean good

08 May 2019 | News Roundup

The Saskatchewan Court of Appeal has ruled that the federal carbon tax is constitutional. Which is good jurisprudence even though it’s bad policy. The complexity of the carbon tax and the tangled nature of Canadian federalism convinced some people that the feds had overreached. But if man-made climate change is real then the fact that GHGs cross provincial and national boundaries absolutely makes it a federal jurisdiction, especially since our Constitution allocates residual powers to the centre. Climate policy is a matter to be settled in legislatures and voting booths not by an imperial judiciary.

Two of the five judges did think that as drafted the Liberal law was unconstitutional. But it’s likely to be the high-water mark for the plaintiffs and in any case misses the larger point. If the scheme is constitutionally flawed in its details, it won’t be hard to fix because the federal government does have the power to act on national and international matters even if it needs to tread carefully in certain respects. It’s hard not to think that a lot of people were confusing “constitutional” with “desirable”. But they are not synonyms or anything close.

Various litigants’ responses are admittedly not encouraging when it comes to a sensible debate, on the constitutional as well as the scientific and policy front. Global News reported that Catherine McKenna erupted into talking points that have evidently passed her lips so often they have entered her soul: “Federal Environment Minister Catherine McKenna called the decision a win for Canadians. ‘It confirms that putting a price on carbon pollution and returning the revenues to Canadians through the Climate Action Incentive rebate is not only constitutional, it is an effective and essential part of any serious response to the global challenge of climate change,’ McKenna said in a statement. ‘The court also recognized, as do most Canadians, that climate change is man-made and one of the great existential issues of our time.’”

What business is it of the courts whether “returning the revenues to Canadians through the Climate Action Incentive rebate” is “effective” let alone “essential”? And does McKenna really want the court deciding constitutional questions on a policy basis? If it were skeptical about man-made climate change, or felt that the federal carbon tax was a feeble response, should it have said forget your silly old Clause 91 and go away? Or should it stick to its knitting and decide whether something is ultra vires without regard to its desirability?

There is much to be said against the carbon tax, including the C.D. Howe Institute’s warning that with the exemptions proposed in December for large emitters it might actually favour coal over renewables. But it should be said in parliament and on the stump, not before the bench.

Since the 1960s it has been axiomatic, especially on the left side of the political spectrum, that courts should deliver policy victories that are long and tedious to obtain, or unobtainable, through the political process. It is an American import: the role of the U.S. Supreme Court first in delivering civil rights and then abortion on demand made them the go-to branch for liberals there and then here. And in Canada it is courts not legislatures that have recently delivered one left-wing goal after another. But what if the trend were reversed?

Meanwhile Saskatchewan Premier Scott Moe dismissed the defeat as just game one and the playoffs would continue and end in “game 7” which is the Supreme Court as if the long expensive and nerve-wracking process of going to lower courts was just some sort of silly theatrics. Though he also said that the Supreme Court was unlikely to hear the case before the next election and “Ultimately this is going to be decided in this fall’s federal election at the ballot box.”

The Liberals might lose the next election, possibly to someone who has pledged to implement a splendid Plan B on climate change that they don’t even have. But they might win, and if they do, the chance of a miraculous Game 7 comeback for the provinces in the Supreme Court is about as great as of the Leafs staging a game 14 comeback to beat Boston this year.

The court was right to rule in favour of the feds. It is amazing that some carbon tax opponents somehow convinced themselves that it could and should do otherwise, having apparently picked up the left-wing belief that things they dislike must be unconstitutional.

The federal government has the power to legislate on matters of national and international importance. So it is up to voters to make sure it does so sensibly.

2 comments on “Constitutional doesn't mean good”

  1. Excellent article John......thank you for giving me a balanced perspective when those around me are drinking the Koolade!

  2. It is inconceivable that a court could find that the federal government has the power of selective taxation regardless of the issue. If this travesty continues what prevents a future government from deciding that we have a national issue of electrical exports and tax Quebec on their exports of hydro or cod stocks are endangered so charge the Atlantic provinces a special tax for catching fish.
    If Saskatchewan has to pay a federal carbon tax then every province should nave to pay a federal carbon tax

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