Canada's Carbon Tax Laws: Where are we now?.

AuthorSteingard, Jessica

On June 21, 2018, Canada's Greenhouse Gas Pollution Pricing Act (the Act) came into effect. Part 1 of the Act imposes a surcharge on fuels such as gasoline, fuel oil, propane, kerosene and methanol. Distributors of the fuel pay the surcharge though the cost would likely be passed down to consumers. Part 2 of the Act applies to large industrial facilities that emit greenhouse gases (GHG). Facilities have a limit on the amount of GHG they can emit each year. If they go over that limit, they must pay through a credit system or an excess emissions charge or both. Government and media have affectionately referred to these fees as a carbon tax.

But here's the kicker--Part 1 or Part 2 or both only apply to provinces that do not have a scheme that is acceptable to Canada. That is, the provinces can create their own carbon tax scheme but it must meet Canada's goals. If a province does not have an acceptable scheme (or no scheme) in place, then the federal Act kicks in as a backstop.

Three provinces--Alberta, Saskatchewan and Ontario--asked their respective appeal courts to review the Act and provide an opinion on whether it is constitutional. Specifically at issue was whether Parliament has the power to enact this legislation under the Constitution Act, 1867 or if the power to enact this type of legislation rests with the provinces. We call this type of issue a division of powers issue.

The Alberta Court of Appeal released its decision on February 24th of this year. A majority of the justices who heard the reference held that the Act is not constitutional. Before this, appeal courts in the other two provinces had held that the Act is constitutional.

The Saskatchewan and Ontario governments have already appealed their courts' decisions to the Supreme Court of Canada. The Supreme Court of Canada will hear Saskatchewan's appeal on March 24, 2020 and Ontario's the next day.

Why do we care?

We care about these decisions because they impact the federal and provincial governments' response to climate change. But we also care about these decisions because of what they say about our judicial system and how we engage with it. Let's break down the numbers:

* A total of 15 justices across the three appeal courts heard the matter. Eight sided with Canada--that the Act is constitutional. Seven justices held that the Act is unconstitutional.

* Eight different opinions were provided--3 majority decisions, 2 concurring opinions (agreeing with the respective majority) and 3 dissenting opinions (disagreeing with the majority).

* The opinions total 543 pages of text.

To be frank, this is a complicated matter. And I don't just mean climate change. I also mean what power each level of government has to make laws about certain topics. In this case, the topic happens to be the environment and greenhouse gas emissions. But the same legal principles apply regardless of the topic...

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