The Constitutional Federal Carbon Tax is Here to Stay

Within or Beyond Provincial Borders: That is the Constitutional Question

However complex Canada's constitutional act may appear, the principle underlying the legislative division of powers is simple and straight forward: matters that affect the country as a whole fall within the federal government's legislative powers; matters that relate to matters within provincial borders fall within provincial jurisdiction.  Perhaps the most illustrious example of a matter falling under federal jurisdiction are matters that fall within section 91(7) of the Constitutional Act, i.e. "Militia, Military and Naval Service, and Defence".  An illustrious example of matters falling within provincial jurisdiction would be section 92 (11) "the incorporation of Companies with Provincial Objects" as contrasted with companies whose business and affairs reach beyond provincial borders.  

Military Intervention in Flooded Parts of Ontario: a Matter of National Security?

In an overly simplistic way, determining whether or not Justin Trudeau'federal carbon tax is or not un/constitutional is asking whether or not climate change or global warming are matters that fall within provincial boundaries (in which case the federal carbon tax would be unconstitutional) or whether it is a matter that affects Canada as a whole, in which case the federal carbon tax is constitutional.  If one wouldn't argue against the fact that matters of national security are matters that affect Canada as a whole and, therefore, fall within the federal government's constitutional legislative powers, than one should not argue against the fact that climate change is also a matter that goes beyond provincial boarders and affects Canada as a whole.  The fact that the military was called upon to intervene during last weeks flooding across some parts of Ontario, New Brunswick, and Quebec underscores the fact that climate change, and the natural disasters and irregularities it brings, are a matter of national security that affects Canada as a whole.  

Federal Carbon Tax and the Saskatchewan Court of Appeal

Coincidentally or not, and however, over-simplistic the question may appear, simply asking whether or not climate change is or not a matter that goes beyond provincial borders leads one to only one conclusion, the same conclusion tat was reached by the Saskatchewan Court of Appeal. Namely, that climate change is a matter of national (let alone global) concern, and that the federal carbon tax is therefore constitutionally within the federal government's legislative powers.  Deviating from this conclusion would hardly be logical or justifiable such that one could hardly expect the Ontario Court of Appeal, before which the provincial government of Doug Ford also brought a constitutional challenge, to find that the federal carbon tax is unconstitutional.  In fact, from a legal standpoint, due to the legal doctrine of "stare decisis" and the rule of "precedents", the decision by the Saskatchewan Court of Appeal is binding on all trial and appellate Courts in Canada; i.e. the Ontario Court of Appeal must, unless it can successfully distinguish the situation in Ontario from the situation in Saskatchewan, follow the precedent set by the Saskatchewan Court of Appeal.  However, distinguishing the situation in Ontario from the situation in Saskatchewan is hardly imaginable since the same climate change that affects Ontario and Saskatchewan is the same climate change that affects China, the United States, Russian, and planet earth. 

Appeal to the Supreme Court of Canada?

If there is any appeal to be successfully heard by the Supreme Court of Canada, it would be against a provincial Appellate court finding that the federal carbon tax is unconstitutional.  Viewed from this perspective, the Saskatchewan Premier's intention to appeal the decision by the Saskatchewan Court of Appeal is at best futile and misguided.  While the Saskatchewan Court of Appeal had two minority judges finding that the federal carbon tax was unconstitutional, the more important majority of the judges not only found that the federal carbon tax was constitutional but also found that the federal carbon tax was constitutional in whole or in part.  If there was any change of the Saskatchewan Court of Appeal finding that the federal carbon tax was unconstitutional, it reasonably would have involved a decision that only parts of the federal carbon tax scheme are unconstitutional; that was not the case. 

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