What happens when a provincial government defies a federal law? We’re about to find out

When Environment Minister Steven Guilbeault suggested it was “immoral” for the government of Saskatchewan to deliberately defy the federal carbon pricing law, the allegations of hypocrisy followed quickly.

Had Guilbeault himself not been arrested for breaking the law? Hadn’t he proudly climbed the CN Tower in 2001 to protest Canadian climate policy?

Conservative Leader Pierre Poilievre posted a picture of Guilbeault being taken into custody by police in 2011 and later asserted that what was really “immoral” was the Liberal government increasing the carbon tax while also flying to international summits.

But there’s much more at stake here than whether Guilbeault has the standing to lecture anyone on the rule of law.

As an environmental activist with Greenpeace in 2011, Guilbeault indisputably broke the law when he scaled the CN Tower in Toronto. He was arrested, charged and punished — receiving a year’s probation and a fine. (He also climbed atop the house of Alberta’s then-premier Ralph Klein to install solar panels in 2002. Charges reportedly were not pursued on that occasion.)

Guilbeault might defend what he did as an act of civil disobedience. Others might describe it as reckless and dangerous.

But when he broke the law, he did so as a private citizen. And there is a big difference between a private citizen consciously defying the law and a government consciously defying the law. The latter, operating with democratic authority and responsibility, is empowered to enforce laws.

Saskatchewan sends a message

Saskatchewan’s government argues that it’s fair for it to stop charging the carbon tax on natural gas because the federal government decided last fall to exempt home heating oil from the carbon tax for the next three years — a move that was widely seen as an attempt to address public concerns in the Atlantic provinces.

The wisdom and logic of that Liberal decision is at least debatable. And having introduced inconsistency into its carbon-pricing policy, it can be argued the Liberal government invited claims of unfairness. Saskatchewan Premier Scott Moe is hardly alone in complaining about the Liberal government’s course of action.

But when a provincial government has a problem with a federal law — a situation that has occurred once or twice in Canada’s history — it has valid recourse to the courts, or the ballot box. It can ask judges to overturn the law, or it can ask voters to defeat candidates representing the federal party that introduced the law.

When a government is willing to defy a law, it’s fair to ask what message its constituents should take from that. Presumably, the government of Saskatchewan does not want residents of the province to believe its own laws are optional.

Sask. says it won’t send carbon tax payments on home heating to feds, breaking federal laws

Saskatchewan says it will not send Ottawa the amount due for federal carbon tax on home heating fuels. And, it seems to be tit-for-tat, with Ottawa saying the province’s residents will no longer be getting carbon tax rebates.

“Well, I certainly wouldn’t advise anyone to follow what we’re doing,” Dustin Duncan, the responsible minister in Saskatchewan, told CBC’s Power & Politics last week. “But that’s how serious we take this in Saskatchewan.”

Of course, when people break the law they generally run the risk of being arrested, as Guilbeault learned in 2001. And Duncan has acknowledged there could be “consequences” for his government’s actions.

But Prime Minister Justin Trudeau’s government seems disinclined to make this a criminal matter.

“I don’t think anyone’s talking about putting people in jail,” Natural Resources Minister Jonathan Wilkinson told Power & Politics this week.

With an election in Saskatchewan expected this year, that might be depriving Duncan of a photo op he’d be happy to take part in. Indeed, it’s hard not to notice that the Saskatchewan government is making this move in an election year — and when polling suggests the race between the Saskatchewan Party and the NDP has narrowed.

But for the sake of its policy — if not the rule of law — the federal government likely has to do something to respond. The only question is how.

What might happen next

The Liberals haven’t tipped their hand as yet and it’s there’s not an obvious playbook for what a federal government should do when a provincial government simply refuses to follow a law — and undercuts a legislated national climate policy in the process.

The federal government can’t return money it doesn’t receive, so it stands to reason that the rebates sent to Saskatchewan residents could at least be smaller now. But that wouldn’t address the fact that the carbon tax is not being applied as it is supposed to be.

Appealing to the courts might be an option. That could put the government of Saskatchewan in the position of defying not just the federal government but a direct ruling or order of the court.

One legal expert told iPolitics last week that the Canada Revenue Agency could be in a position to issue a multimillion-dollar fine against the Saskatchewan government.

The Breakdown | The politics of Saskatchewan’s carbon tax fight

The National’s At Issue panel breaks down Saskatchewan’s refusal to pay its portion of the carbon tax and the federal government’s response. Plus, the Conservatives want more transparency surrounding the Winnipeg lab leaks.

The federal government is scheduled to send $2.1 billion to Saskatchewan next year under national health and social transfer programs. Withholding some of that funding might seem like an option, but doing so might also risk widening the conflict and bringing even more politics into what is essentially a legal dispute.

The Liberals perhaps can’t afford not to fight, but they could conceivably undercut themselves (and help Moe) if their response seems irrational.

It’s notable that neither Ontario and Alberta — two provinces led by premiers who also have attacked the carbon tax — have joined Saskatchewan in defying the federal law. Alberta typically isn’t reluctant to pick a fight with Ottawa.

But whenever a line is crossed, the risk is that it will become much easier for others to cross that line in the future. And the next government to ignore the law might be one that Scott Moe or Pierre Poilievre oppose.

Poilievre might reject the carbon tax and he might enjoy needling Guilbeault. But for the sake of precedent — and buttressing his own position on law and order — he has good reasons to make it clear now that laws are still meant to be followed.