Scott Moe & the Doctrine of Federal Paramountcy
It's not a children's book. Maybe it should be so he'd finally understand.
I’ve been traveling to and from Canada over the last couple of weeks and feel like I missed a lot. This issue blew up at the end of October, but I fully expect it to rage on…and on and on.
“The CEO of SaskEnergy will have to decide if their organization is willing to accept an (obviously partisan government) order to disobey a federal law.”
I added the part in brackets to further clarify the statement, which was provided to the Canadian Press by Andrew Leach, an economics and law professor at the University of Alberta.
Leach was commenting on Scott Moe’s latest sideshow - threatening to withhold federal carbon tax revenue if the Canadian government does not capitulate immediately to his petulant demands.
A few weeks ago Prime Minister Trudeau announced that home heating oil will be exempt from the carbon tax for the next three years across the country (except in BC, which has its own carbon pricing structure). He also announced that rural Canadians, which currently get a 10 per cent boost to the carbon tax rebate payments, will get 20 per cent, starting next year.
The immediate pushback was that this announcement disproportionately benefits Atlantic Canada, a federal Liberal stronghold since 2015. Approximately a million homes in Canada still use heating oil; over a quarter of those exist in Atlantic Canada, where 40 percent of residents use it to heat their homes. Recent polling suggests Trudeau’s support is beginning to tank in the region.
In Saskatchewan, whether your furnace is gas or electric, your warmth is almost definitely provided through natural gas.
SaskPower predominantly burns natural gas, followed closely by coal (which is hugely problematic in itself, but nobody’s talking about it).
If you have a natural gas line into your home, you’re one of three types of SaskEnergy customers:
Industrial clients include Sask Power.
Maybe if Scott Moe didn’t act like a toddler throwing a tantrum every time Justin Trudeau changes his socks, he’d have a little more credibility when an issue comes up that does have merit.
Moe isn’t wrong in that this is clearly a desperate and political move by the federal Liberal party to shore up their hold on Atlantic Canada. Economists and environmentalists alike agree the Prime Minister’s decision is a nonsensical step backwards for his government’s efforts to fight the climate crisis.
The federal Liberal party’s defense of the new policy is that it will break the cycle “of vulnerable households that are using the most expensive and most polluting sources of energy to heat their homes.” The high cost of heating oil impacts a disproportionately higher number of residents in Atlantic Canada, where “energy poverty” is among the highest in the country.
Scott Moe’s response to the policy was to claim that the federal government is being unfair to Saskatchewan residents by excluding natural gas.
"I cannot accept the federal government giving an affordability break to people in one part of Canada, but not here”, Moe said on Twitter, therefore Saskatchewan "will stop collecting and submitting the carbon tax on natural gas", starting on January 1, 2024.
This means mere days after the passage of a “law” Moe imposed on Saskatchewan, forcing queer kids out to what are almost definitely fundamentalist, unsupportive or even abusive parents, thereby stripping young Saskatchewan people of nationally-protected rights… he announced he’s going to do it again.
At last weekend’s Sask Party convention, of all places, where Pierre Poilievre was guest speaker, Moe promised another new legislation. He claims this new Saskatchewan law will protect against potential repercussions, including big fines and possibly jail time for SaskEnergy executives, for disobeying national laws on remitting federally-legislated tax revenue.
Interpreting the powers of three levels of government (municipal, provincial and federal) through the lens of the judicial system and the Canadian constitution is no easy task. I can’t do it and I guarantee that neither can Scott Moe, however this legal analysis breaks it down nicely, including the key interpretative principles of constitutional law applied by Canadian courts when examining jurisdictional issues.
One of those principles is the Doctrine of Federal Paramountcy.
“Federal paramountcy protects federal powers from provincial intrusion. While both the provincial and the federal governments may legislate on a common matter, the federal legislation will prevail in the event of a conflict. There are two types of potential conflict, the first is where “it is impossible to comply with both laws” and the second occurs where “to apply the provincial law would frustrate the purpose of the federal law.”” - Federal Jurisdiction in Municipal Matters: What Happens When the Provinces or Municipalities Step on Federal Toes? Mary L. Flynn-Guglietti, Annik Forristal, Kailey Sutton, David N. Ross, March 2017
That’s only one of the key principles applied to judicial interpretations of the Canadian constitution, but most apply against what Moe thinks he can do, but cannot. You don’t have to be a constitutional scholar or even have a law degree to know that there’s not a court in Canada that is going to uphold a provincial law denying federal taxation powers.
We know Scott Moe will do it anyway, while continually perpetuating delusional, grandiose schemes and ideas about his own capabilities.
There is so much about this that is disturbing, yet I have seen no analysis that examines the state of mind of a Canadian premier who clearly sees himself as above the law.
Who not only sees himself as above the law, but sees himself as the law in Saskatchewan. The Sask Party is dismantling our province’s place in Canada and rebuilding it under their control.
It’s delusional and dangerous.
“In blunt terms, Premier Moe has said, ‘Pistols at dawn in the town square,’ and he’s rolled the CEO of SaskEnergy out there and said, ‘Here’s my fighter,’…The CEO of SaskEnergy will have to decide if their organization is willing to accept an order to disobey a federal law.” - Andrew Leach, economics and law professor at the University of Alberta, Canadian Press, November 1, 2023
As of May of this year, the CEO of SaskEnergy is Mark Guillet, a lawyer and long-time SaskEnergy executive under the Sask Party government.
A lawyer.
How does one show an iota of respect for the legal profession and play Scott Moe’s childish, illogical games with the judicial system at the same time?
Let’s not pretend the legal community in Saskatchewan is not propping up the Sask Party, as well as these facetious “challenges” of Moe’s, while raking in sickening amounts of your money to do it - millions and millions of tax dollars every year:
Even better, the chair of SaskEnergy’s board of directors is also a lawyer.
A senior partner at McDougall Gauley, naturally.
How is it possible that there are lawyers literally everywhere, yet not a single one can seemingly explain the law to Scott Moe?
Of the board of directors and their spouses, inclusive of the donations from McDougall Gauley, seven, or the majority of the board members of SaskEnergy have recently donated to the Sask Party.
Executive leadership at SaskEnergy has not donated to the Sask Party, nor do they particularly appear to be the types who’d appreciate having their names put forward as potential lawbreakers.
Will any one of these fearless leaders of our Saskatchewan Crown corporations speak up and out against the bizarre and destructive behaviour of the Sask Party’s elected MLAs, not one of whom is even remotely qualified to be making these kinds of decisions on behalf of a massive corporation like SaskEnergy?
There is also a question here regarding SaskPower.
Why would that corporation, which is predominantly burning natural gas, charge the carbon tax now? Will it only charge it when it burns coal?
Or is Scott Moe’s new law going to place SaskPower’s board and executives into legal jeopardy as well?
The human capital costs, nevermind legal bills, related to Scott Moe’s outbursts and purely political, always-losing court challenges, are becoming astronomical.
Just like his multi-million dollar trips around the globe, you’re paying for it.
Have a great week and talk again soon,
PS: for those still interested, the future of this Stack is very much still up in the air:
