Skip to main content
opinion

It’s early days, but the biggest winner from Thursday’s Supreme Court decision upholding the constitutionality of the federal Greenhouse Gas Pollution Pricing Act could turn out to be Conservative Leader Erin O’Toole.

To be sure, the ruling is a clear victory for Justin Trudeau’s government, fully vindicating its choice of pricing carbon and other greenhouse gases as its primary instrument for reducing Canada’s emissions, and, more narrowly, its strategy of delegating primary responsibility to the provinces for implementing it.

Indeed, to read both the majority and the dissenting opinions, it’s doubtful that any approach other than a carbon tax would have survived the court’s scrutiny. The dissenters’ warnings that the decision would open the way to wholesale federal incursions into provincial jurisdiction, a new and dark era of “supervisory federalism,” look comical, considering the extraordinary list of conditions the majority attached to its approval.

Had the stakes not literally been the future of human life on the planet; had the substance to be regulated not been gases whose movements are unconfined by provincial or even national boundaries, and whose effects are global; had it not been impossible to entrust their regulation to the provinces, individually or collectively, owing on the one hand to the temptation to free-ride on others, and on the other to the impossibility of enforcing any interprovincial agreement; and, crucially, had the feds not chosen the least intrusive method possible of intervening, a minimum national price, leaving it up to individual provinces to decide how best to apply it, it is highly unlikely the majority of the court would have ruled as it did.

Remember, this is the court that is so determined to defend provincial prerogatives, that it would not even rule, in R v. Comeau, against provincial trade barriers that plainly violated the Constitution’s economic union clause. This is the court that reserved the regulation of securities trading exclusively to 13 provincial and territorial securities commissions rather than, as in every other federation, a national securities regulator. This is the court that never misses an opportunity to lecture the feds on the virtues of “co-operative federalism,” while declining utterly to require the same of the provinces.

Is it to be imagined that, because it was forced to find, after much soul-searching, that greenhouse gases were a sufficiently “national” concern to justify federal intervention, under a clause broadly empowering Ottawa to act “in relation to all Matters not … assigned exclusively to the Legislatures of the Provinces” (the famous Peace, Order and Good Government clause), the court is suddenly going to sign off on whatever half-baked scheme for invading provincial turf pops into a prime minister’s head? No, it is not. Indeed, had the court not been willing to find for the feds in this case, it is difficult to conceive of any circumstance in which it would.

So the feds get a rare win. The carbon tax is here to stay. The Trudeau government will not have to start the whole process over from scratch, or MacGyver some fix out of a paper clip and some binder twine. Why do I say this is a win for Mr. O’Toole, of all people?

Because the carbon tax is here to stay, that’s why. There are no more courts left to appeal to. More to the point, it is now a fait accompli. Each day it remains in place, and the predicted disasters do not materialize – no families impoverished, no industries crippled, no broad loss of competitiveness – the less the credibility of its remaining opponents. Public opinion, it is clear, has already shifted solidly in its favour; the tendency to defer to the status quo, which once might have leaned against it, is now on its side.

Businesses have adjusted to it. Families, in the four provinces where the feds are collecting the tax – Ontario, Alberta, Saskatchewan and Manitoba – are receiving their compensation cheques. And the governments in those provinces have some decisions to make. The tax will be collected in their territory, one way or another. The only question is by whom. Will they continue to let the federal government collect it, and distribute it as it sees fit? Or will they take possession of those revenues themselves?

They could wait and see what happens in the next federal election. Maybe the Conservatives, who are still vowing to “scrap” the carbon tax in favour of some ill-defined but inevitably costlier alternative, will win. But if you had to bet on it, would you? Especially since the thing that seems most likely to prevent them from winning, in the parts of the country where they need to win, is precisely their opposition to the carbon tax.

Suppose these four provinces decide to bow to the inevitable and collect the tax themselves. Behind the scenes, Mr. O’Toole might even be encouraging them to. Because at that point there would be no federal tax to scrap. The tax would now be solely a provincial tax, even if collected at the federal government’s behest. Mr. O’Toole has always said he would support the provinces in whatever they decided. All he has to do then is shut up about it.

Why is that a win? Because it takes the issue, a losing issue for the Conservatives, off the table. As such, it frees Mr. O’Toole to fight on other grounds, more congenial to Conservative chances: the Trudeau government’s waste, corruption and overreach. More particularly, it frees him from his base. Rather than fight on, hopelessly, against a tax that is no longer even being collected federally, Mr. O’Toole can say to the diehards: Take it up with your provincial government.

It’s a funny thing. The case for the carbon tax was supposed to be that it was the most efficient way of reducing emissions, economically. But it has also proved to be a legal and political winner. The sooner the issue is put to bed, the better – for Mr. O’Toole’s sake, and the country’s.

Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.