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Friday, July 11, 2008 

Harper Says 'Jump' - Premier Wall Asks 'How High'? - Saskatchewan Drops Equalization Court Challenge

No one is very surprised in Saskatchewan this morning. The new Sask. Party government has bowed to Prime Minister Harper's request to drop a court challenge on how equalization has been calculated across the nation. You see we live in a country where some provinces have natural resources included in the calculation ... provinces like Saskatchewan, and other provinces do NOT have their natural resources included (like Quebec and Manitoba). So just chalk it up to another inequity in Confederation - something that the court challenge initiated by Saskatchewan was supposed to answer.

However, Saskatchewan's new right wing (neo-Reform) government has bowed to Harper's demand.

The question of how equalization should be calculated in Canada will not be resolved. Inequity built into the very fabric of our nation will continue.

The rationale given by both Harper and Premier Wall runs like this .... 'Saskatchewan has lots of money at the moment because of windfall oil revenue, they don't need equalization'. Well, next time you owe a bank money, refuse to pay them and simply advise them that 'banks have lots of money ... you don't need my loan payment'! See how well that works!

This is a sad day for the province of Saskatchewan. Stephen Harper and Brad Wall have conspired, for political reasons, to deprive this province of equality in Confederation.

Sigh!

-Regina Leader Post
-CBC Saskatchewan
-Canadian Press

Whatever Happened To Saskatchewan's $850 Million Equalization Dollars That Harper Reneged On?

I dont really think there was much legal merit in what Calvert was arguing anyway. May not have been worth the taxpayers' money litigating it.

So you don't think that having two methods of calculating equalization in Canada (the Manitoba/Quebec/Nova Scotia method where natural resources are NOT included) VERSUS the (Saskatchewan method where they ARE included) does not show an inequity in Confederation?

This is what Saskatchewan was trying to resolve. Harper himself acknowledged the inequity in his pre 2006 election promises.

Liberal federal governments CREATED the inequity (Martin in particular) and Harper pledged to fix it .... now he has reneged.

Liberals need to answer to this as well!

Leftdog - The constitutional provisions that Calvert sought to challenge Harper's move on are just too narrowly worded to actually convince a court that they should interfere with the allocation of equalization. By partially including resource revenue in the calculation Harper (and his Liberal predecessors) violated the spirit--but not the word--of the constitution. There is also just nothing in the Constitution that says the feds have to calculate equalization on an all-province basis as opposed to a middle-of-the-road province basis. Some scholards don't even think the equalization provisions of the constitution are justiciable (i.e. they are just fluff that the courts couldnt use to impose positive obligations on the state).

For the record I actually think Harper's moves on equalization were a fraud designed with the sole purpose of appeasing Quebec, but think the constitutional arguments Calvert wanted to make were weak at best. That he promised it was legally irrelevant... the Prime Minister's election promises cannot bind Parliament.

Besides... I really don't think Saskatchewan has it that bad right now. I spent the last three years living in the provicne and save for the fact that I really wanted to move home I kick for leaving a province on an upward economic trajectory. The increases in the price of oil over the last year have more than made up for the extent to which Saskatcheawn was "screwed" by Harper.

KC- you clearly did not comprehend the point of my post ... you simply mouthed Harper's line that Saskatchewan is doing well and doesn't need any money - as I said, "next time you owe a bank money, refuse to pay them and simply advise them that 'banks have lots of money ... you don't need my loan payment'! See how well that works!"

I do NOT agree with your point at all!

I understood your post just fine, but you're conflating legal issues with political ones. The fact is that Lorne Calvert's LEGAL challenge had no merit even if he might have had a point POLITICALLY. Whatsmore I think he and his government realized that. The court challenge was a hollow gesture for domestic consumption.

Im not a huge fan of Brad Wall but at least his strategy of negotiation with Ottawa has a hope of succeeding unlike the hopeless pandering that Calvert undertook by launching the challenge.

Your bank analogy is nonsense as you have a legal obligation to pay the bank money you owe them. The federal government has no obligations with respect to equalization except for the vague constitutional guarantee that it "ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation". Saskatchewan has such revenues and such level of taxation. The feds have met their obligations under the constituition and (no matter how "unfair") Sask has no valid legal argument.

Dont like it? Vote them out. For once Saskatchewan has that power.

Well we simply aren't going to agree .... and as a Liberal I fully understand your reluctance to agree with me. Saskatchewan's treatment by both Chretien and especially Martin on the matter of equalization was as bad as Harper's.

I disagree that the courts would not have seen merit in EQUITY for major Federal programs and policy. To single out and exclude a province that was in desperate need of fair equalization after the PC's ran up Billions in debt during the '80's was one of the reasons that the Federal Libs have always had a difficult time here.

Saskatchewan's case should have gone to court - the fact that it won't allows the inequity to remain unresolved. Unfortunately, you and I symbolize the 'unfinished' nature of the debate.

We will now never know which side would have won the argument before the courts.

This has nothing to do with me being a Liberal. I've always thought that the Martin's sop to oil rich eastern provinces was an injustice. If I had my way the equalization formula would be spelled out in stone in the constitution so that the only thing that could go up and down was the amount that was paid out (i.e. no changes to the way each provinces share is calculated). The fact that it is used as a political tool in this country to get votes in this or that area depending on the prevailing winds is a disgrace and both Harper and the Liberals have been guilty of it.

The problem is that nowhere in the constitution does is say that there must be "EQUITY for major Federal programs and policy" or anything to that effect. Nowhere. A government could give money to one place and leave the rest to rot and there would be nothing the courts could do about it (save, once again, for the vague guarantee of equalization quoted above). The courts can be "activist" from time to time but they can't (and dont generally) just make up new constitutional principles on the fly.

There are no legal questions. You just dont feel like you have been treated fairly and that is a legitimate opinion. Lorne Calvert saw that people in Saskatchewan felt the same way and began this initiative to appeal to that feeling knowing full well (I expect) that it wouldnt fly. If he received other advice then the province might want to consider firing its lawyers.

There can be legitimate debate about the political issues involved here but anyone with a pretty basic knowledge of constitutional law could tell you that this appeal is hopeless. If you have a real argument to make based on real constitutional provisions and principles and real precedent then I'm all ears.

The people of Saskatchewan's (and Canada's) money could be better spent than on pointless court cases.

1) "If I had my way the equalization formula would be spelled out in stone in the constitution"
.... I have never said that this is a 'constitutional challenge', your argument keeps mentioning the Constitution.

2) "The problem is that nowhere in the constitution does is say that there must be "EQUITY for major Federal programs and policy" or anything to that effect. Nowhere."
.... Once again your argument is trying to make this a constitutional question, Saskatchewan's argument has had nothing to do with the Constitution.

3) "There can be legitimate debate about the political issues involved here but anyone with a pretty basic knowledge of constitutional law could tell you that this appeal is hopeless. If you have a real argument to make based on real constitutional provisions and principles and real precedent then I'm all ears."
.... again with your 'Constitutional' challenge argument.

4) "A government could give money to one place and leave the rest to rot and there would be nothing the courts could do about it (save, once again, for the vague guarantee of equalization quoted above).
... now you are closer to what Saskatchewan's argument was all about. A federal policy with the name of 'equaliation' which was anything but, was worthy of an appeal to the courts based on precedents of federal / provincial agreements.

5) "... anyone with a pretty basic knowledge of constitutional law could tell you that this appeal is hopeless."
... hmmm, you assume that it was hopless. Saskatchewan's legal argument (based on sound legal and academic opinions) was placed before the courts about one year ago AND had not been dismissed by them ... one would think that there were at least some merit in the arguments or there would have been outright dismissal.

As I said to you before, there is a good argument here from the province on this matter. However, this will not occur now - the merits will never be adequately heard or argued because the courts will not render an opinion.

I fully believe that on the basis of how the Federal government has traditionally administered their federal financing formula with the provinces, the courts would have ruled that in order to even call it 'EQUALization' - that it warranted some modicum of 'EQUITY'. Again, the Constitution was not the issue - and inclusion of the policy in the constitution is a red herring.

POSTSCRIPT:
The Regina Leader-Post has it right when they describe the nature of the appeal to the Saskatchewan Court of Appeal as ... "The decision to withdraw the reference case to the Saskatchewan Court of Appeal on the legality of the Conservative government's changes to equalization". The 'change' in point being the 'cap' that Harper had placed on the amount a province could receive after he technically claimed that he had fulfilled his 2006 election promise.

1 - 4) Any argument that is made to support Saskatchewan's position has to be a constitutional argument. If its merely statutory or contractually its not truly binding as Parliament cannot be bind itself. See Reference Re Canada Assistance Plan where the court upheld the feds renegging on an agreement with BC. The feds or a province can reneg on any non-constitutional agreement it signs with one another if it passes a statute (as the Conservatives would have to to change equalization).

5) Neither the Saskatchewan Constitutional Questions Act nor the Court of Appeal Act provide a mechanism whereby a reference can be summarily dismissed so the fact that it was still before the courts says nothing.

5 cont'd) Like I said, to the extent that the feds administrered equalization through non-constitutional means it can change its mind at will. As the court said in the case I cited above, legitimate expectations regarding substantive rights don't apply.

Im sorry but this--"the courts would have ruled that in order to even call it 'EQUALization' - that it warranted some modicum of 'EQUITY"--is not a legal argument. Its semantics at best. That kind of thing might fly on The Practice or Street Legal but not in real courts.

I just cheked my notes and the matter was referred by Saskatchewan in June, 2007 - I reiterate that if the matter had no merit, I think that the Appeal Court of Saskatchewan would have soundly dismissed it by now.

Here is the point of my post and my argument - Saskatchewan NEVER got its day in Court .... and that is unfortunate.

To go to a purely political argument ... I hope that Wall is held responsible for not allowing Saskatchewan to have had its day in court.

Both you and I have demonstrated that clearly, there was an argument to make AND .. as I have already harped on incessantly, we will now never know who would have won this argument. You say you, I say me!

You can "think" whatever you want but unless you know the rules of procedure in the court or in this case the relevant statutory provisions you dont "know". I checked both statutes that would apply and neither provides a method by which a reference (as opposed to an "appeal")can be dimissed. Thus the fact that it hasnt been dismissed is legally meaningless.

You're trying to turn a political issue into a legal one. The reality is that courts function (for the most part) on the basis of laws not politics. Even decisions that fundamentalist wingnuts decry as "activist" have some basis--no matter how tenuous-in legal (usually constitutional) principle. Courts can't intervene in relations between the feds and a provinces and make arbitrary decisions just because they dont like the way things went down. There HAS to be law involved. Since Harper introduced legislation (the Budget Implementation Act I believe its called although I could be wrong on the name) to change equalization the only thing left for a province to argue (in light of the Canada Assistance Plan case) is the constitution and there is nothing in the constitution (I've read it cover to cover, repeatedly) for Saskatchewan to argue.

That may suck but its the way our legal system works in Canada.

If you were a Justice on the Saskatchewan Court of Appeal and that was your written majority opinion, - I would accept it and that would be that.

However, since the Premier of Saskatchewan (upon request of the Prime Minister of Canada), asked the Court of Appeal to disregard the reference, I will not get to hear an opinion from the Justices.

You are asking me to believe that you know exactly and definitively what the rendered opinion would have been. Excuse me if I choose not to accept your very confident opinion.

The justices would have rendered quite a bit more than a simple black/white ... 'case closed' ruling.

My opinions are conflicted on this issue as equalization is complex. I think that the basis for Calvert's court challenge was weak but Saskatchewan may still deserve more equalization. The points that Leftdog made in his 10:15 AM July 11 comment need further discussion (at the very least). Maybe we need to negotiate different streams of equalization payments. Saskatchewan is doing well at present but how much of that is due to strong commodity prices, and how much of this dynamism is cyclical? No one knows what oil prices will be in 2011.... Perhaps equalization needs to take into accounts factors like the percentage of population that is rural (Sask is high here), residing on reserves (another area where Sask is higher than the national average -- and this is an area of federal responsibility!), etc.

Self-sufficiency should be a goal for all provinces, but I wonder why (for example) Manitoba gets equalization but we don't. My goal is not to bash Manitoba, just to promote discussion. Sask has more oil, but Manitoba has a large urban area (Winterpeg) as well as hydro....

... and Manitoba and Quebec's revenue from Hydro is NOT brought into the equalization calculations while Saskatchewan's oil revenue is. This even though hydro is renewable and oil is not. Very inequitable. Harper acknowledged that - but later reneged.

It seems to me that this type of reference should definitely have gone before the courts. In fact I believe that Harper asked for the matter to be dropped because the Federal government was nervous about what the Court of Appeal was going to render.

Well... If you want your NDP partisanship to blind you to the decision of the Supreme Court of Canada in Reference Re Canada Assistance Plan and the absence of anything in the constitution to uphold Saskatchewan's claim that is your prerogative.

I don't really have a horse in this race since 1) I live in a Territory and thus do not receive equalization and 2) I dont really have a clear preference between Brad Wall and the SP and Lorne Calvert and the NDP in Saskatchewan.

I would have thought someone with as much knowledge about politics as you would take blustering politicans' self-interested legal posturing with a grain of salt, and preferred a little legal analysis. I've offered you legal reasons why the reference wouldnt have succeeded while all you have offered is a vague assertion without reference to established legal principle that 'equalization has to be equal' to support your position. If I were a lawyer with Sask Justice I would have told Premier Wall (just as I would tell any private litigant) that the case was hopeless and not worth the time and money. So I wont question his motives in withdrawing it. I find it amusing that you're willing to accept at face value Calvert's assertion that there is merit to his claim without questioning his motives while you essentially call Wall Harper's lapdog for simply doing what any lawyer would have recommended he do. For what its worth, a lot of what I've learned about the Sask Court of Appeal I learned from Ed Bayda who retired as Chief Justice of the Sask Court of Appeal just two years ago after 25 years.

BTW, not that its relevant but the Sask Court of Appeal wouldnt have been the last word on the matter (unless the Province lost and accepted it) as the Feds would have undoubtedly appealed an (impossible) decision against them to the SCC.

I would hope that if the Court of Appeal have told the province that the matter had no merit that they would accept it and NOT proceed to the SCC. I think a referral by Calvert to the SCC would have proven that it was entirely a political matter. I am still sufficiently idealistic to believe that there was merit to their argument.

I acknowledge that your arguments are very strong . I don't have one precedent or matter that I can bring forward to challenge yours.

I still would have liked a day in court. For after all, is that not what a judicial system operating in the British Parliamentary System should offer its citizens? The right to have hope that an inequity can be both recognized and remedied?

I have been denied that right.

Lawyers tell their clients all the time that things are not worth pursuing. Thats quite likely what happened here.

Im not so idealistic because constitutional law is something Im interested in and have studied it enough to know that Calverts arguments had some very basic, fundamental legal gaps in it. Add that to the fact that I know politicians can be demagogues and make absurd legal assertions all the time to appeal to voters. Placed in the context of Calvert's almost certain defeat by Wall at the time the reference was launched it was pretty clear what was going on.

I remember Harper saying he wanted to use the notwithstanding clause to overturn the SCC decision giving prisoners the right to vote. If he'd taken like 2 minutes to pick up a copy of the Charter he would realize that the notwithstanding clause cant be used to democratic rights. He never did introduce such legislation.

As for inequity... I'd rather judges stuck to law. Obviously law often means correcting inequity but there needs to be a legal basis for doing so (ie same sex marriage grounded in s. 15 of the Charter). There isnt here.

Well KC, as much as I am enjoying our discussion, and even in view of the fact that you are learned in the law and I am not, all you are doing is still rendering YOUR opinion. It is NOT the opinion of the Saskatchewan Court of Appeals and regardless of your level of confidence in said opinion, I continue to be of the opinion that Saskatchewan would have received some benefit from having the Justices address the reference.

Again, I repeat, we have not been given that chance and that has been my point of contention in this post!

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