Sask. to make its case against the carbon tax in front of Supreme Court starting Tuesday

The Saskatchewan government will argue its case against the carbon tax in front of the Supreme Court of Canada starting Tuesday, months after the hearing was originally scheduled for.

Hearing delayed months due to COVID-19

The Supreme Court of Canada has been closed to in-person hearings but will welcome arguments for and against the constitutionality of the federal government's Greenhouse Gas Pollution Pricing Act on Tuesday and Wednesday. (Sean Kilpatrick/The Canadian Press)

The Saskatchewan government will argue its case against the carbon tax in front of the Supreme Court of Canada starting Tuesday, months after the hearing was originally scheduled for.

The court postponed the arguments in the spring due to COVID-19. In-person hearings resume for the first time on Tuesday.

Premier Scott Moe sent a letter to Prime Minister Justin Trudeau last week asking him to pause the carbon tax until after the Supreme Court reaches its decision.

"It would be very good advice that we feel we have provided to the federal government. Put this tax on pause, put it on pause in particular, now that we're all managing through a global pandemic until you actually know whether you have the power to implement it," Moe said Monday.

"This is an ineffective tax that does nothing to reduce emissions. All it does is reduce jobs, opportunity and investment in our communities here in the province."

Saskatchewan is not alone in its fight to end the Liberal government's carbon pricing policy. Ontario will also make its argument to Canada's highest court.

Saskatchewan and Ontario both challenged the Greenhouse Gas Pollution Pricing Act in lower courts, and in both cases, Ottawa was deemed within its rights to enact the policy.

In May 2019, Saskatchewan's Court of Appeal ruled in a 3-2 decision that the federal plan was constitutional. In June of that year, Ontario's Court of Appeal ruled 4-1 in favour of the federal government's position.

Both provinces appealed to the Supreme Court of Canada last year.

Alberta won a court challenge in its own courts last winter.

The Supreme Court is not determining whether the Act is effective in reducing carbon emissions.

Saskatchewan's Attorney General Don Morgan said the province's argument will have "some refinements and some nuances" from the one it made in February 2019 in Regina, because it has read the judgments in Saskatchewan, Ontario and Alberta.

"We don't even know if it's constitutionally viable. We have duelling court opinions with Alberta's deciding that it is unconstitutional. And Saskatchewan with a split 3-2 decision," Moe said.

Morgan said Monday he expects the Supreme Court's decision to be released six to 12 months from now.

Last week, federal Environment Minister Jonathan Wilkinson told CBC the carbon tax issue was "largely settled in the 2019 election."

"Over two-thirds of Canadians voted for a political party that supported a price on pollution. We're looking to partner with Premier Moe and his government on areas where we do agree," Wilkinson said.

In May 2019, Moe said the incremental costs to appeal to the Supreme Court would be "zero" as the lawyers in the government's constitutional law branch were handling the case.

Last November, the province hired Regina law firm MLT Aikins to assist with its carbon tax appeal at the Supreme Court of Canada.

At the time, Morgan said the hire would cost between $400,000 and $500,000.

"It is a significant amount of money, make no mistake, but we think the importance of having a strong precedent and having the best representation we can have for our province is absolutely critical," Morgan said.

The arguments

The case is to be heard over two days, with submissions from at least seven provinces, the federal government, the Assembly of First Nations and nearly two dozen interveners that include provincial utilities, environment groups and unions.

Ottawa has argued that regulation of greenhouse gas emissions is an issue of national concern, citing the division of powers in the constitution that gives the provinces responsibility for non-renewable resources.

Saskatchewan, Ontario and Alberta argue the federal carbon pricing plan infringes on provincial jurisdiction over taxation, climate policy and natural resources.

Saskatchewan's written submission to the Supreme Court said the tax "would profoundly upset the division of powers" laid out in the Constitution and violates fundamental principles about taxing powers in Canada.

John Whyte, a constitutional law expert at the University of Regina, called February's 228-page Alberta Court of Appeal decision "he longest judgment I have ever seen."

"I'm pretty confident the federal government will win and the Saskatchewan and Ontario cases will be upheld and the Alberta case overturned," Whyte said.

"The federal government's case is strong and accords with the constitutional background."

Whyte said the issue lives in "two different universes." One is the interpretation of the clauses of the Canadian Constitution and the other is the politics on carbon pricing. He said the Supreme Court is only evaluating the former, while voters get to judge the latter.

Dwight Newman, a constitutional law professor at the University of Saskatchewan, said the province sees the case as involving a federal policy that impacts the provincial economy, the livelihoods of those affected and their businesses.

"At the same time I think [the Saskatchewan government is] thinking about the long-term implications for the balance of powers between the federal government and the provinces, because the case serves as a precedent on other issues," Newman said.

"The man or woman in the street is not of going to talk about the division of powers in certain sections of the Constitution Act. People are thinking about whether decisions on issues in the future should be made in Ottawa or Regina."

Newman said the Saskatchewan Party "might see a political benefit in being seen to defend the interest of decisions being made in Saskatchewan rather than in Ottawa."


Adam Hunter


Adam Hunter is the provincial affairs reporter at CBC Saskatchewan, based in Regina. He has been with CBC for more than 14 years. Follow him on Twitter @AHiddyCBC. Contact him:

with files from CBC News and The Canadian Press