Supreme Court’s Carbon Tax Decision Echoes History, Says Prof

The justice statue at the Supreme Court of Canada, with the Parliament Buildings in the background, in Ottawa on March 25, 2021. (The Canadian Press/Adrian Wyld)

The Supreme Court of Canada’s recent carbon tax ruling harks back to 1973 when then-prime minister Pierre Trudeau reinforced the use of the SCC to strengthen Ottawa’s grip, says Ted Morton, professor emeritus of political science at the University of Calgary.

In the 2020 book he co-edited, “Moment of Truth: How to Think About Alberta’s Future,” Morton argues that Trudeau appointed Bora Laskin as chief justice in 1973 because he was “a well-known advocate of broader federal powers.”

In future years, Laskin struck down provincial statutes in Saskatchewan and Alberta dealing with potash and oil development.

The Alberta and Saskatchewan premiers feared the courts would act with even greater power to override provincial jurisdiction when Trudeau proposed a new constitution. As a result, they rallied other premiers to insist on a “notwithstanding clause” that would overrule onerous judicial decisions against provincial jurisdiction.

Morton, a former Alberta cabinet minister, told The Epoch Times he has advised the Alberta government that the clause only applies to Charter rulings and therefore cannot be successfully used against the recent SCC decision, which ruled that the carbon tax is constitutional.

“How you balance this depends on where you sit. And it’s not driven by law. It confirms in a very explicit way I'd say, the regional, the centralist bias of the Supreme Court,” he said.

“The chief justice said that climate change is an existential threat … so he’s going to rule in favour of carbon tax. But if you’re sitting in Edmonton, you know how the office towers are empty, how nobody’s downtown. The same with Calgary, you'll see that what’s happened in the last six years is an existential threat to the future of Western Canada, certainly Alberta.”

Barry Cooper, a political science professor at the University of Calgary, says that the ruling shows the SCC’s pro-Ottawa, anti-Western bias and that he believes the oil-producing West has been put in a difficult position.

“This is one more step pushing the Western provinces, Saskatchewan and Alberta anyway, into a corner where they are given less and less ability to defend the interests of their citizens,” he said in an interview.

“And it’s going to get worse, not better. I mean, that’s the imprudence of the Supreme Court of Canada doing this. I just thought, what the hell has got into their heads?”

In his dissenting opinion, Justice Russell Brown warned the 6-3 decision has far-reaching consequences.

“This is a model of federalism that rejects our Constitution and rewrites the rules of Confederation,” Brown wrote.

“Its implications go far beyond the [carbon tax law], opening the door to federal intrusion—by way of the imposition of national standards—into all areas of provincial jurisdiction, including intra-provincial trade and commerce, health, and the management of natural resources. It is bound to lead to serious tensions in the federation.”

Justice Malcolm Rowe agreed with Brown, writing that “[T]he national concern doctrine is a residual power of last resort,” and its misuse made the legislation unconstitutional.

Justice Suzanne Côté said Parliament could set carbon pricing, but to allow the federal cabinet to do so was “independently unconstitutional.”

Cooper believes the ruling by the majority of judges bolsters the case for Western separation.

“They were behaving irresponsibly because it will certainly make it much easier for [us] Alberta independence people to get the message across. You can’t trust any central Canadian institution—that’s the message they’re sending.”

The Supreme Court has always been an agent of the federal government, Cooper suggests.

“The foundation of the Supreme Court by Sir John A. was done deliberately in order to have the court make decisions that he didn’t want to, basically.”

In her 1983 essay “The Origins of Judicial Review in Canada,” Dalhousie professor Jennifer Smith made a case for the “narrow, partisan function envisaged for the new Supreme Court in 1875 by Macdonald.” This partisanship meant federal interests would prevail over provincial ones without appearing to do so.

“Only a court and its long-standing reputation for non-partisanship could tame the aggression of the provinces without bitter controversy. Left unstated was the assumption that the central government, by contrast, was unlikely to experience the embarrassment of an adverse ruling in its exercise of legislative power.”

Morton believes Alberta Premier Jason Kenney needs to rally other premiers in support of provincial jurisdiction over resources and that federal Conservative Leader Erin O’Toole must champion his respect for those constitutional rights, especially in the West.

“People are asking me, should they vote for the Mavericks rather than Conservative? I’m saying no. It’s imperative that we do everything possible to defeat Trudeau,” Morton said.

“But then I say, if the Conservatives, and specifically their leader, don’t explicitly commit to getting Western Canadian oil to global markets at global prices … and spend the whole election sucking up to Ontario and Quebec, then that should be it as far as supporting the federal Conservatives go.”