Liberals Call Out The Big Guns. Are They Breaking The Law?

 Geoff Plant  advertising against the HST petition thinly disguised as an op-ed. Is he breaking the law with this misinformation?

He starts his op-ed (I allege illegal advertising) against the initiative by saying it is fundamentally flawed.

 Then he wants to examine the petition, nit picking it apart by misinforming you. He claims to understand the Act giving you the impression that he is right.
Then goes on to tell you about it being a legal process as well as a political campaign.
He then tries to deflect all the blame on the Federal Government. I allege that Both Governments are playing a shell game to confuse the voters.
He says " As everyone knows or should know, the HST is not provincial legislation. It's part of a federal statute, which can be amended or "extinguished" only by the federal Parliament. The legislature of British Columbia has no ability to extinguish federal legislation."  
This is patently false. The constitution Clearly states:    

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, —
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

The Recall and Initiative Act states clearly that an initiative may be undertaken in respect only of an issue that is within the jurisdiction of the province. In addition, the act also states that the draft bill must be clear and unambiguous. The initiative petition fails on both these grounds.
The draft bill prepared by the anti-HST campaign is called the HST Extinguishment Act. Its central provision states very simply "[T]he HST is hereby extinguished in British Columbia."

What Mr Plant is not saying here is that this issue is clearly within the jurisdiction of the province
and requires a constitutional amendment. 

The draft bill is therefore a constitutional impossibility. It cannot be passed by the provincial legislature.
It's important to realize that the question is not whether the anti-HST campaigners could have drafted a valid bill, but whether they did. No lawyer ever succeeded in court by asking a judge to ignore the words of a statute and decide the case on the basis of what the legislature should have said.

From Strategic Thoughts David Schreck:Like some pundits, Plant went on to quibble with the preamble to the initiative petition's proposed Bill, arguing that the HST does not contravene the constitution, but not mentioning that the preamble to the Bill is not relevant. He also noted that the proposed Bill fails to specify in what form the PST would be reinstated. Plant concludes that the legislative committee should refer the Bill to the legislature, at which point the government should refer it to the court for a constitutional opinion.

The proposed initiative bill is flawed on other grounds. Its preamble states that the HST "contravenes" the provisions of our constitution under which the provinces have the power to impose direct taxation.
Unfortunately for the anti-HST campaigners, this is simply not the law. If they had asked, any constitutional law student could have explained that the federal government has the power to raise money by any mode or system of taxation. Therefore, the federal government has all the constitutional authority it needs to enact the HST, which is just the GST by another name. Similarly, while the provincial government clearly has authority to enact the PST, it is equally capable of deciding not to, and that is what it did when it repealed the PST.
It is hardly satisfactory to have the statute books of British Columbia filled with preambles that are constitutional nonsense.....(snip)

Plant doesn't tell you that the Federal Government has never been given the right to collect Provincial Taxes. British Columbia has never ceded that right.

Other provisions of the proposed bill fail to satisfy the requirement that it be "clear and unambiguous." For example, the section of the bill that tries to provide for some kind of refund to British Columbians is particularly problematic. How will eligibility for this refund be determined? By whom? Where will the money come from to pay for it? None of this is answered in the bill.....(snip)

To undertake a provincewide vote in the face of the constitutional issues I have described would be a mistake....(snip)

To undertake a province wide vote at a cost of $20,000,000 would be political suicide for the Liberals.

There is another option. Under a statute called the Constitutional Question Act, the provincial cabinet has the power to refer any matter to the Supreme Court or Court of Appeal of B.C. for hearing and consideration. (This is the procedure that the government is using to test the constitutionality of the Criminal Code provisions outlawing polygamy.).....(snip)

To refer it to the SCC is a delay tactic and would precipitate a Recall

My suggestion is this: If the signature drive succeeds, the committee should be convened and recommend that the draft bill be tabled in the house, and immediately thereafter the bill should be referred to the courts for an opinion on its constitutional validity.  Recall  ....(Snip)
Nothing will be lost by such a procedure and much will be gained. If the bill is found to be valid, it can be debated and voted on in the house. If not, the petitioners will be free to try again, but this time the campaign will be conducted against the backdrop of a much clearer understanding of how our Constitution works.
Some may say it would be a shame if it turns out that so much energy has been invested by so many people in a failed undertaking. But that is what the rule of law is all about -- making sure that we conduct our politics according to law.....(Snip)
The only thing gained in the above would be a second chance for the Government to register as opponents to the initiative. Their arrogance was so great the first time they want another chance. The problem as I see it Mr. Plant, is the people are pissed because they were lied to and then your Party rammed it through without proper debate.Do you think they'll believe you the second time around? So I suggest that you follow the will of the electorate and repeal this money shift if you want another chance. Then when the next election comes around you can campaign on the issue. My bet is you won't do that because you'd lose.

Read more: http://www.vancouversun.com/opinion/op-ed/anti%2Binitiative%2Bdoomed%2BHere/3110571/story.html#ixzz0pz68M8N1

Update 4:00 PM July 7,2010
After returning from canvassing today and still listening tomany people who are mad at this government I found this on the Fight HST site.

Vander Zalm says a recent article by former BC Liberal Attorney General, Geoff Plant, characterizing the petition legislation as illegal would be laughable if it weren’t so pathetic and obviously political. He says Plant’s key assertion, that the HST is federal and can’t be terminated by BC cannot be taken seriously
“If that were true, then the federal government could simply create the HST in any province it wanted, without even asking them. They could set it at any rate they wanted, and could apply it to anything they wanted.”
“But the reality is, both BC and Ottawa signed an agreement that can be terminated by either side. Our petition, if passed by the Legislature, will terminate the Agreement that created the HST, thereby extinguishing the HST in BC. It’s not rocket science. The federal government will have no choice but to respect the will of British Columbia voters – only a Liberal Plant would suggest otherwise,” concluded Vander Zalm.

1 comment:

Anonymous said...

It makes no difference what former Attorney General Geoff Plant, BC Chamber President John Winter, current Finance Minister Colin "Huggie" Hansen or Premier Gordon Campbell or any of their supporters or economists think about the Initiative. Anything and everything they say and do only serves to make the electorate even more determined to succeed; if not thru this, then Recall. Bring it on, guys. You have already lost.