WINNIPEG — A legal bid by Opposition Leader Brian Pallister to reverse the province’s hiking of the provincial sales tax without a referendum has been thrown out of court.
In a 15-page decision released Friday, Court of Queen’s Bench Judge Kenneth Hanssen said Pallister and his Progressive Conservatives didn’t have a legal leg to stand on.
Pallister had argued the NDP’s tax hike robbed Manitobans of the right to vote on the tax increase, because the New Democrats, in a single piece of legislation (Bill 20), did away with the need for a referendum when they raised the tax by one point to eight per cent last year.
Pallister wanted the court to bite, in a day-long hearing last month, on his claim that the NDP violated the Charter of Rights and Freedoms when it raised the PST without having a referendum as outlined in the 1995 Taxpayer Protection Act. The act was brought in under the Tory government of Gary Filmon.
Hanssen not only didn’t bite — he didn’t even nibble.
In straightforward language, Hanssen said that based on well-established law, there is no constitutional right to a referendum in Canada.
“I am satisfied the Charter imposes no obligation on a government to implement a referendum or to maintain a referendum it has previously established,” Hanssen said.
“Under the circumstances, Mr. Pallister has failed to satisfy me that the Charter is engaged in this case.”
Tory spokesman Mike Brown said the PCs will review the decision with their lawyer, Robert Tapper, before making a full comment next week.
“We’re disappointed, but we’re not disappointed so much for us as we are for all Manitobans who are opposed to the PST hike and I think that’s just about everybody,” Brown said.
Pallister has said he would appeal if he lost in the Court of Queen’s Bench.
Government spokesman Matt Williamson said Hanssen’s decision did not surprise the NDP.
“We have said from the beginning that this case was nothing more than a political stunt by the PC party — a party that would put the brakes on critical investments in infrastructure and flood protection,” Williamson said in an emailed statement.
“We find it regrettable that the PC party required the province to spend money on this case, and we hope Brian Pallister accepts the court’s clear decision.”
The Selinger government has said revenue from the PST increase will fix roads and highways and fund other infrastructure projects, such as new flood protection measures for Lake Manitoba and Lake St. Martin.
Williamson also said the province spent more than $150,000 in legal costs in response to the PC party’s legal challenge.
Hanssen also didn’t mince words when addressing the Filmon government’s 1995 Taxpayer Protection Act.
“It is legally ineffective and unenforceable,” he said.
“The doctrine of parliamentary sovereignty prevents a legislative body from binding future legislative bodies as to the substance of its future legislation. This is precisely what the Progressive Conservative government was trying to do in 1995.
“The Supreme Court of Canada again confirmed that ‘as a matter of constitutional principle, neither Parliament nor the legislatures can, by ordinary legislation, fetter themselves against some future legislative action.’”
Government lawyer Jonathan Kroft had argued during the hearing that if Pallister’s case was given any weight, it would undermine the role of elected MLAs to make decisions.
“The court is being invited to tell the legislature what it could and couldn’t talk about,” Kroft said. “That’s a matter covered by parliamentary privilege. This court should not be going anywhere near that question.”
Hanssen agreed, saying he was satisfied the legislative assembly had the constitutional authority to consider and pass Bill 20 despite the referendum requirement.
He also said he was satisfied that any attempt to transfer legislative power with respect to a money bill (Bill 20) away from the legislative assembly, to the electorate in a referendum, is inconsistent with Canada’s 1867 Constitution Act, which gives a legislature the authority to increase taxes to raise revenue.
» Winnipeg Free Press
Republished from the Brandon Sun print edition July 19, 2014