When asked about Ford’s stance, McKenna said “we’ve been clear if the federal government has to step in, the revenues will go back to the province — but we will determine how they go back, and we could give them back directly to people and businesses so they would not go to the government.”
But in a statement to the Star, Ford said a PC government would fight the federal Liberals.
A carbon tax “makes life more expensive, and our province more uncompetitive,” he said. “I have been very clear, the Ontario PCs will scrap Kathleen Wynne’s expensive cap-and-trade carbon tax scheme.
“We will also take the federal government all the way to the Supreme Court if we have to, if it means stopping this tax from being rammed down our province’s throat.”"
Net Net, if Ford kills Cap and trade, Fed carbon tax kicks in. Feds have jurisdiction on environment and can pretty much impose ANY tax they want. So Ford will waste MILLIONS in a battle he has no chance of winning. People would vote for this clown? really? OMG.
Don't be so sure a carbon tax will survive the Supreme Court
By Mitch Wolfe
Back in 2011, the Supreme Court of Canada nixed a proposed project by former prime minister Stephen Harper. The Conservatives wanted to create a single national securities regulator, but the Supreme Court preferred the provinces’ own securities regulators over Harper’s federal one. Their reasoning? Because Section 92 of the Constitution Act, 1867 gives the provinces the exclusive jurisdiction over property and civil rights within their provinces, i.e. the regulation of the activities of their provincial companies and businesses.
There’s a lesson in this for the Liberal government and their bid to save the national carbon tax. During a recent CTV Question Period appearance, Liberal Environment and Climate Change Minister Catherine McKenna bluntly stated that if Saskatchewan’s Premier Scott Moe, Ontario’s Doug Ford and Alberta’s Jason Kenney pursued legal action against the Liberals’ proposed national carbon tax legislation they’d lose in court.
McKenna provided no constitutional basis for this claim. It could end up being the case that Supreme Court of Canada will ultimately decide that the Liberals’ proposed carbon taxation legislation is unconstitutional for the same reason it nixed Harper’s securities regulator ― because it is an infringement on the provinces’ exclusive jurisdiction over property and civil rights within their own provinces.
Section 91 of the Constitution Act sets out the subject matters over which the federal government has jurisdiction. There is no specific reference to the federal government having exclusive jurisdiction over the regulation of the entire Canadian environment.
Then, under Section 92, with respect to environmental issues, the provincial governments have jurisdiction over: Property and civil rights in the province, which gives the power to the provinces to regulate most companies, businesses, commercial activities and industrial activities within the provinces. It follows that such power includes regulating the emissions from such activities.
Likewise, when it comes to management of provincial Crown lands the power is given to the provinces to regulate mining and lumber activities and accordingly the emissions from such mining and lumber activities. The provinces are also responsible for all matters of a local or private nature within that province.
In determining whether the Liberals’ proposed carbon tax legislation is constitutional, the Supreme Court will look at the pith and substance of the legislation, in other words the actual purpose and effects of this legislation.
The Trudeau government will likely argue that its proposed legislation is constitutional because the federal government alone has the federal jurisdiction to regulate the entire Canadian environment, not the provinces.
They’ll also likely argue that in fulfilling its purpose to regulate the environment, it has the power to regulate all commercial and industrial activities in Canada, which includes imposing a carbon tax regime on such activities. By imposing this carbon tax regime, the effect of this policy will be to reduce greenhouse gas emissions in Canada, moderate climate change and hence improve the entire Canadian environment.
The problem with this argument is that the provinces, according to Section 92 of the Constitution, have the exclusive jurisdiction to regulate the activities of the companies and businesses in their provinces.
Ontario, Alberta and Saskatchewan may be able to successfully argue that the actual effects of the Liberals’ proposed carbon tax legislation is the imposition of carbon taxes which will have no effect on positively affecting climate change and regulating the environment. Such carbon taxes, on the other hand, will make these provincial businesses non-competitive, unnecessarily increase their costs, and force them out of business with the resulting loss of jobs and investment.
McKenna shouldn’t act so certain that a legal showdown with Moe, Ford and Kenney will end in her government’s favour.
Mitch Wolfe, a graduate of University of Toronto Law School, is a commentator and analyst and author of Trump: How He Captured The Trump White House.