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Pigs will fly before the fantasy that Ottawa's carbon tax 'invades provincial jurisdiction' will ever persuade a court

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Jason Kenney

Ottawa's carbon tax is "is an invasion of provincial jurisdiction," says Jason Kenney, frontrunner in the race for the leadership of the Progressive Conservative Party and, he hopes, eventually the premier of Alberta.

Brian Jean, leader of the Wildrose Opposition, who would also like to be the Alberta's premier some day, had this to say on the same topic: "If they are infringing on our jurisdiction we have to take them to task on it." And that means, he told the Calgary Sun's Rick Bell, that if he were to become premier, he would take the province to court over the tax. "Absolutely, 100 per cent!"

And that, both men presumably pray, is all most Albertans get from this yarn. The reason is simple: It's baloney, hooey, a juicy Alberta cow flop, and both of them have to know it.

Let me explain, since Bell didn't bother in his extended explication of Kenney's and Jean's opinions.

Let's start by asking where the two conservative politicians got the idea Prime Minister Justin Trudeau's carbon tax is an invasion of provincial jurisdiction.

Not from the Fathers of Confederation. In 1867, when they drafted the British North America Act, the Fathers included Section 91, which sets out the responsibilities of the federal and provincial governments. Of Ottawa it says: "the exclusive Legislative Authority of the Parliament of Canada extends in all Matters coming within the Classes of Subjects hereinafter enumerated." That is to say, "3. The raising of money by any Mode or System of Taxation."

Readers are encouraged to read all of Section 91 for themselves. They should do this just in case they think the author of this commentary is leaving something out to be sneaky or deceptive. They should also read it because it's a good idea to understand the workings of your own country -- if only as protection against deceptions perpetrated by politicians.

Nor did Kenney and Jean get this idea from the drafters of the rest of Canada's Constitution, which became the supreme law of the land in 1982. Those Canadians included Section 91, along with its eccentric 19th Century capitalization and pretty well everything else in the BNA Act, in the new all-Canadian Constitution.

That included Section 92, which deals with provincial responsibilities. Section 92 has this to say about taxation: provinces may make laws about "Direct taxation within the Province in order to the raising of a Revenue for Provincial Purposes."

Now, if anyone had asked me, I would have said this made provincial sales taxes illegal. Instead, someone asked the Supreme Court of Canada, which ruled back in 1943 that sales taxes are direct taxes, with your (now obsolete) smoke shop just acting as the tax collector. I'm not being hyperbolic about the smoke shop, either, by the way.

This means that now and again the Supreme Court will make a ruling that defies what the drafters of the Constitution clearly had in mind. But don't get your hopes up about Kenney's fairy tale enjoying such a convenient fate.

Let's read the relevant line from Section 91 again. The federal government, the one now led by Trudeau, has the Constitutional authority to raise money by "any Mode or System of Taxation." Is that clear enough? Any. Mode. Or. System. Of. Taxation.

Whether you (or Kenney, or Premier Brad Wall of Saskatchewan, whom Kenney termed the real leader of Western Canada during his tête-à- tête with the Sun's Bell) agree, it would be quite difficult to get the Supreme Court or any other court accept the proposition a federal carbon tax is an invasion of provincial jurisdiction. Ain't gonna happen.

Now, Kenney and Jean are both former federal Members of Parliament. One would think they understood this. In fact, I would say it's extremely unlikely they don't.

This, combined with the fact he's a lawyer, may explain Jean's cautious words in the quote attributed to him: "if they are infringing on our jurisdiction." Since he knows perfectly well they aren't, he also knows this legal pig won't fly. However, he presumably hopes the base won't notice.

Kenney, a career politician, is not admitting even that much, although he too certainly has to know his promise is poppycock, designed to fool voters who aren't familiar with the Canadian Constitution.

Wall, by contrast, isn't actually threatening to sue over the same thing. Right now he's arguing Ottawa can't tax provincial Crown corporations -- an irony, since as a market fundamentalist, I'm sure the Saskatchewan premier would love to privatize those publicly owned companies. He's also whining about how the federal tax isn't fair to provinces whose leaders are climate-change deniers. As for his claim Ottawa will siphon $2.5 billion from Saskatchewan, even the Canadian Press calls that baloney.

So Kenney, with Jean bobbing along in his wake, is making a promise he knows he can’t keep. Of his legal argument, he surely knows that dog that won't hunt. If he were to proceed with it, he'd be hosing away tax money on a guaranteed lost cause -- strange behaviour for someone who vows to be stingy on behalf of taxpayers.

Now, both Kenney and Jean are welcome to argue the Constitution of Canada should exclude carbon taxes from federal jurisdiction. They could even work up a campaign to change the Constitution. And good luck to them! The Constitution is not easy to amend. (Right-wing trolls mustn’t blame me for this. I played no role in drafting the Constitution in either 1867 or 1982.)

Likewise, they can argue the carbon tax is somehow like the National Energy Program, and that the NEP was a bad thing. It's not a particularly good case, as has been noted here before, but there's nothing an Alberta politician likes better than a public scrap with Ottawa, and that even includes Premier Rachel Notley and her NDP.

And they can make the argument (if they dare) that climate change isn't real. Alternatively, they can pay ritual obeisance to the idea but act as if they don't believe it -- which is what both Kenney and Jean are doing.

None of these positions can be simply refuted without a lot of argument, and, even then, many of Trudeau's political foes won’t accept the evidence.

But the answer to the fantasy Ottawa is infringing on provincial jurisdiction with a carbon tax, or any other tax, is right there in black and white in the words penned by the Fathers of Confederation, now entrenched in the Constitution Act of 1982, the ultimate law of the land.

So Calgary Centre MP Kent Hehr, the minister of veterans' affairs in Trudeau's cabinet, was entirely justified when he scoffed at Kenney's big talk.

If you ask me, counting on the ignorance of your own support base to spin a fairy tale you know will never come true is rather poor form.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

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