A Very Different Canada

Canada is very different today than it was just last month.

It might not feel like it yet, but the Supreme Court's decision to uphold the carbon tax has likely set in motion a series of events that will radically transform our country.

Maybe that sounds dramatic, but we've taken our time to analyze the Supreme Court's 405-page decision, and it's the only conclusion we could come to.

So, let us lay out our reasoning, and then we'll invite you to let us know whether you agree or disagree, and what you think we should do about it.

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First, in case you missed our earlier article, here's a short summary of what happened last month:

The Supreme Court of Canada ruled 6-3 in favour of the federal government regarding the constitutionality of the carbon tax.

The federal carbon tax requires provinces to introduce carbon taxes and, crucially, also allows the federal government to impose a special federal carbon tax on any province that refuses to do so.

Alberta, Saskatchewan, and Ontario took the case to the Supreme Court, where they were joined in opposition to the law by Quebec, Manitoba, and New Brunswick.

That's right - if you thought this was just an Alberta or Saskatchewan issue then you missed the point.

Six provinces, representing more than 80% of the population of Canada, opposed the imposition of this law.

Why?

Because this case actually goes far beyond just a carbon tax.

As we noted, last month's case was less about the carbon tax itself, and more about the balance of powers between the federal government and the provinces in Canada.

The federal government wished to legislate to mandate a minimum level of action against climate change, while six provinces - including both provinces that had already implemented their own carbon tax, and provinces that had refused - claimed that this requirement infringed on their exclusive jurisdiction as provinces.

To understand why not only those provinces opposed to carbon taxes, but also three provinces who already have carbon taxes took up this case, you need to consider the distinct Canadian federal system.

Unlike in many other countries with federal systems, in Canada, the provinces are - by design - not subservient to the federal government.

The federal government is not a parent, in charge of the provinces like children, telling them what they can and cannot do, giving them rights and responsibilities, and taking them away again if they misbehave.

Rather, the Canadian Constitution makes clear that the provinces and the federal government are equals who share power.

Importantly, this isn't some general feel-good kind of power-sharing, it's explicitly detailed in the Constitution itself.

The Constitution lays out exactly which powers are given to the federal government and which powers are given to the provincial government, noting that powers given to the provinces are "exclusive" to the province.

Now, around about this time in the discussion (especially if it's occurring on Twitter) is when someone will claim that the modern world is complex, that when the Constitution was written there was no way to predict how important different issues would become, and that naturally some issues might, over time, need to become shared jurisdictions, or even be transferred from one jurisdiction to another.

To which the answer is, yes, of course!

In fact, this is so obviously the case that the Constitution already deals with this issue in multiple ways, and has done since it was first written:

1) The Constitution contains issues on which both the federal government and provincial government may legislate, but if there is any conflict the federal law takes precedence.

2) The Constitution contains issues on which both the federal government and provincial government may legislate, but if there is any conflict the provincial law takes precedence.

3) The Constitution can and has been amended multiple times, including amendments to the list of which powers are allocated to which level of government.

Clearly, then, should a new issue arise in Canada that was not considered in the Constitution, and should that issue be determined to be important enough that the federal government should be given power over that issue, there is a legal process of amending the Constitution which can be followed to resolve this problem.

In fact, that's exactly the process Alberta and Saskatchewan went through last century to guarantee their ownership of their natural resources.

The ownership of natural resources by the provinces, not the federal government, was enshrined in Canada's constitution after massively important negotiations over the Constitution Act, 1982 led by then-Alberta-Premier Peter Lougheed.

But the federal government chose not to take this path when they wanted to implement a carbon tax.

The federal government chose not to negotiate a solution to this disagreement, or to go through the process of amending the Constitution of Canada, because taking either of those approaches would require some compromise, which they didn't want to do.

After all, from their perspective, why should the federal government compromise?

Why should they go through the difficult and time-consuming process of amending the Constitution, when they can just announce that the Constitution means something different than it used to, and they can rely on the Court to back them up?

Last month's Court decision was the culmination of a long effort dating back to at least the 1970s by many Ottawa insiders to do away with the idea of a federal-provincial partnership and place the federal government above the provinces.

Finally, using environmental issues as a back-door, they have now found a way to regain control over Alberta's natural resources, and - crucially - in doing so, have set a precedent for future federal overreach.

In effect, the federal government's argument was that because the environment is a federal matter, and because natural resources impact the environment, then the federal government should have control over natural resources too.

The Court, in their ruling, attempted to try to limit the ruling to only the issue of greenhouse gas emissions, to avoid setting a precedent, but we believe they were - and will be - unsuccessful in doing so.

As stated in the Alberta Court of Appeal's earlier ruling, the federal carbon tax is a Trojan Horse, and now that it has been upheld, it's only a matter of time before the precedent set by this ruling is used to justify further intrusions into areas of provincial jurisdiction.

The Court also tried to limit the impact of the ruling by claiming that because the federal carbon tax law doesn't actually introduce a federal carbon tax, but merely a back-stop federal carbon tax that only takes effect if provinces do not introduce their own provincial carbon tax, the federal government is not taking over the regulation of emissions, it's merely requiring provinces to regulate emissions themselves.

But, again, if the federal government can run an end-run around any restriction of its own power, by simply forcing the provinces to do what the federal government can't, then there really is no restriction on the federal government's power.

Heck, at that point, if the federal government can basically tell the provinces what to do, and provinces are only allowed to enact laws so long as those laws are consistent with what the federal government wants, why even have provinces at all?

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The simple fact is that the balance of powers between the provinces and the federal government was permanently altered by last month's Supreme Court's decision.

The precedent it sets will permit the federal government to override the will of the provinces on a whole range of issues, irreparably weakening provincial sovereignty and likely breaking Confederation.

In Justice Brown's dissenting opinion to the 6-3 decision, he argues that the law’s subject matter:

“falls squarely within provincial jurisdiction... This is a model of federalism that rejects our Constitution and rewrites the rules of Confederation... 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.”

This ruling sets an incredibly dangerous constitutional precedent that will have dramatic long-term consequences for the balance of power between the federal government and the provinces in Canada.

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Now that we know where we stand, the question is what to do about it?

After the release of the Court's ruling, we sent a survey to our supporters and received almost 5,000 responses from Albertans.

Obviously, we are aware that the supporters of our organization are not a representative sample of all Albertans, but it's clear that even amongst that subset, last month's news has had a profound shift on how many Albertans think.

But, now that it's been a few weeks, what specifically do you think should be done?

What ideas and policies do you think the Alberta government should pursue?

What should Project Confederation do in the coming months?

Send us your comments, and we promise to read every single suggestion as we work to finalize our plans for the remainder of 2021.

Finally, don't forget, everything we do as an organization - including the recent survey, our work on the Court case, and all our other work on interprovincial issues - is funded by donations from supporters like you, and without that ongoing support, we wouldn't be able to keep track of these big issues, research and analyze them, and keep you informed.

Please consider making a donation to help us keep shining a light on these important issues:

Regards,

The Project Confederation Team