About the carbon tax - er, fee - The Orca

About the carbon tax – er, fee

Suzanne Anton

John Horgan says he’ll be forced to raise the carbon tax, because Ottawa will make him. There’s some ironic legal history to unpack.

A comment on the Mike Smyth interview with John Horgan on October 20, four days before the general election.

Smyth went at Horgan with clear questions concerning taxes. Not many of the answers were clear, but one was – namely, the question of raising the carbon tax. (The tax the NDP campaigned to end in 2009.)

Horgan said that if elected, he will be increasing the tax from $40 to $50 per tonne. Why? Simple. If we don’t, the federal government will make us.

Here’s the irony in that statement.

The federal government imposed a national carbon tax in 2018 under the Greenhouse Gas Pollution Pricing Act. This was potentially a constitutional problem; at face value, everything about the carbon tax would seem to fall under provincial jurisdiction.

In Canada, the fundamental bargain of confederation is the division of powers set out in sections 91 and 92 of our constitution. The Act appears to be a direct incursion into provincial powers. So how did the federal government get around that?

They decided two things: they would call it a fee, not a tax; and they would only impose it on provinces which did not have their own pricing scheme, calling it a matter of national concern.

Alberta, Saskatchewan, and Ontario all disagreed and challenged the law in their respective Courts of Appeal. Alberta succeeded (the Act was ruled unconstitutional) and the others failed (it was ruled constitutional). The three related appeals were recently heard in the Supreme Court of Canada, with the decision to come in due course.

The contesting provinces were joined by most other provinces, all taking the point that the law was unconstitutional.

The only province arguing in favour of the constitutionality of the Act was British Columbia, which had been intervening all along on the side of the federal government. In other words, in each of the Courts of Appeal and then again at the SCC, BC argued for a loss of provincial jurisdiction.

Not only was BC offside the other provinces, it is the BC lawyers who provided the justification upon which the federal government now relies.

Here’s how that came about.

The first legal challenge was heard in Saskatchewan. The federal argument was weak, but Ottawa’s lawyers were bailed out by the BC legal team, who came up with the concept of “minimum national standards.” Aha! Something which could be seized upon – and indeed it was, by the Saskatchewan Court of Appeal, and later by the Ontario Court of Appeal, both of whom concluded that that Act was within federal powers. However Alberta’s Court of Appeal wasn’t buying, and ruled against the federal government.

The “minimum national standards” argument, BC’s argument, is now the central theme of the federal argument in front of the Supreme Court. It is the argument which has kept the national carbon tax – sorry, the national carbon fee – alive.

And yet, in the interview with Mike Smyth, Horgan said “the feds are making me do it.”

Not quite. It’s BC’s own legal team arguing in support of the Act who has “made” him do it.

Clever lawyers, best in the country – but I think they have this one wrong. The Supreme Court will decide, but in the meantime, if the provincial government is looking for a reason why they’re “forced” to raise the tax (yes, in BC it is actually a tax), they can look in the mirror.

Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor