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1) The options available to the court are not as simple as "yes Ottawa can tax carbon emissions" or "no, Ottawa can't tax carbon". There are a bunch of combinations possible along a number of parameters:
a) "Industrial" price on reported emissions of large emitters vs. "consumer" point-of-sale price on fuels;
b) which head of power each of these can come under: POGG national concern vs. criminal vs. tax;
b) which head of power each of these can come under: POGG national concern vs. criminal vs. tax;
c) And most importantly, IMO: whether the court's finding of Ottawa's authority will accommodate or displace concurrent provincial authority. It's worth pausing on this one as one of the most harmful elements of these conservative reference cases.
There is jurisprudence suggesting that if a federal authority comes under the national concern branch of POGG (and there is a good legal argument to be made that this one could), then Ottawa's authority is exclusive - suggesting it might displace any provincial jurisdiction.
It seems that the jurisprudence on this could be vague enough to allow that Ottawa might authorize qualifying provincial policies, as has been the approach so far.
But if not, then the result COULD be that the scheme for collaborative federalism that the feds have undertaken could go out the window, along with any possibility for the nuanced economic and equity issues of carbon pricing to be resolved at the provincial level.
In other words, subsidiarity would fail. If you believe that decisions around the details of climate strategies are best made closer to the unique industries and economies of particular provinces, like Alberta, these references cases could mean the end of that.
2) No matter what decision is made tomorrow, the case will be appealed to the Supreme Court. Either: a) the feds lose, and they appeal because the feds sincerely believe (and most experts agree) that they have constitutional authority to price carbon. Or
b) The conservative-led provinces lose, and they appeal because this has nothing to do with outcome for them, and everything to do with public display of bluster. And the Supreme Court is much more public-displayful than provincial appellate courts. END
