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On February 24th, the Alberta Court of Appeal found the Government of Canada’s federal carbon tax unconstitutional. However, the ruling follows on the heels of rulings by both the Ontario and Saskatchewan Courts of Appeal in favour of the carbon tax’s constitutionality. This month the matter will go before the Supreme Court of Canada (SCC). What can we expect to happen then?
While it’s possible the SCC could agree with the Alberta Court of Appeal, it would be a shock for the following reasons:
1. Most obviously, the Alberta opinion is the minority.
2. If one were to bet on any provincial high court ruling against the carbon tax, Alberta’s would be the one to go with given the province’s longstanding economic reliance on the fossil fuel industry. Since, as one might be inclined to imagine, courts often represent, to at least some extent, the cultural and political leanings of their jurisdiction.
The SCC, however, is made up of justices from all over Canada. Three of the court’s nine members must be appointed from the Quebec bar or senior judiciary by law, while three are generally appointed from Ontario (as is currently the case). Two more are currently Alberta justices, with Atlantic Canada lastly represented by Newfoundland’s Malcolm Rowe. Accordingly, considering no other province in Canada is as right-leaning or energy industry-reliant as Alberta, the geographic and cultural makeup of the SCC suggests it will more likely agree with the ruling of Ontario’s Court of Appeal than Alberta’s.
But even putting geographic origin aside, the SCC is, by North American standards, a fairly liberal-leaning court. Consider the case of Carter v. Canada (SCC, 2015) in which the SCC unanimously overturned its own precedent to find that Canadians have a Charter right to medically assisted suicide. A similar decision by the US Supreme Court would, considering its current composition, be unthinkable.
3. Lastly, the Alberta opinion (which I admittedly have not sat down and read) reportedly rested on a finding that the carbon tax was an unconstitutionally broad exercise of the federal government’s powers as contained in the Canadian constitution. However, the regulation of greenhouse gases and other environmental pollutants would appear to be precisely where federal powers of regulation are most justified, as regulation of emissions and pollution cannot, and should not, be entirely left to the authority of the provinces. That’s because pollution travels without regard to jurisdictional lines, and in any given case, the province producing pollution may not be the province that suffers from it.
Of course, what should happen is different from what is constitutionally permissible. But considering the carbon tax is hardly the first exercise of federal environmental regulation, I’d wager my Climate Action Incentive rebate on the SCC upholding the law.