Anti-HST bill may be for nothing

A group of British Columbia business organizations have filed for a judicial review of any decision to approve the anti-HST initiative petition and its draft bill in the wake of concerns that it is unconstitutional and could never become law in BC.

The petitioners are representatives of the Council of Forest Industries, the Mining Assiciation of British Columbia, the Independent Contractors and Businesses Association, the Western Convenience Stores Association, the Coast Forest Products Association and the BC Chamber of Commerce.

Why would the validity of the draft bill even be in question? Didn’t British Columbians flock to sign the petitions and aren’t there nearly enough signatures (currently over 700,000) to force the issue to the floor of the legislature?

I seems that, after all the emotional energy has been spent and thousands upon thousands of British Columbians have put their signatures to the anti-HST petition, it may have been for nothing after all, according to former BC Attorney General Geoff Plant in a June 4 article in the Vancouver Sun ( http://www.vancouversun.com/news/anti+initiative+doomed+Here/3110571/story.html ).

Mr. Plant questions the constitutionality of the draft bill at the heart of the anti-HST initiative, the “HST Extinguishment Act”, as it is called. He does not question the politics or the substantive merits of the HST itself but questions instead whether or not the bill could ever be enacted in the British Columbia legislature. He says that if it is unconstitutional, and he thinks it is, there is nothing anyone can do about it, no matter how many frustrated and angered BC citizens signed the petition.

This is very disturbing, to say the least, however Mr. Plant has some very good arguments, the biggest one being that the draft bill is fundamentally flawed to begin with. He says that the provincial government has no legal ability to amend or extinguish federal legislation and the HST belongs in federal jurisdiction, so the draft bill is a constitutional impossibility.

Could the anti-HST campaigners have drafted a valid bill? It doesn’t matter if they could or couldn’t, according to Mr. Plant. The truth of the matter is that they didn’t.

They also got something else wrong, apparently. In its preamble, the bill states that the HST contravenes the provisions of our constitution under which the provinces have the power to impose direct taxation. But, according to Mr. Plant, this is not the law at all. He says that any constitutional law student could have told the campaigners that the federal government has the power to raise money pretty much any way they wish. The HST is just the GST by another name and the province only has the authority to enact a provincial tax (the PST) which they did and then they repealed it.

Mr. Plant says that the proposed bill is also unclear and ambiguous, leaving several questions unanswered, such as the section about a refund to British Columbians not saying how eligibility will be determined for the refund. Nor does it say where the refund will come from… the federal government? Hardly likely.

The bill would also reinstate the PST as “the only sales tax” in BC, neglecting to mention the hotel room tax and the gasoline tax, for instance. Mention of their future is completely omitted.

Mr. Plant says the proposed initiative bill should never have been accepted by Elections BC in the first place because it does not meet statutory requirements.

So, is there a future for the proposed legislation? Can some surprise rabbit be pulled out of the anti-HST hat? Mr. Plant doesn’t think so. He says that there is no procedure in the Recall and Initiative Act for correcting the flaw in an initiative bill once it has been accepted by the chief electoral officer, which this has.

If the necessary signatures have been obtained, and it looks like they will be obtained, the bill will go to a committee of the legislature, which can accept it or refer it back to Elections BC for a province-wide vote. This would be a mistake, he feels, considering the constitutional issues at stake.

One other option could see the matter go to the Supreme Court or Court of Appeal of BC for a hearing and decision.

Mr. Plant’s advice, if the requisite number of signatures is obtained, is to have the draft bill tabled in the house and immediately afterward, the bill should be referred to the courts for an opinion on its constitutional validity. If it is found to be valid, then it can be debated and voted on. If not, the petitioners will have to try again, hopefully, with a much clearer understanding of the way the constitution works.

To those who may be disappointed, Mr. Plant says that the blame will lie solely with the proponents.

It would appear that the proposed bill was doomed from the start and British Columbians signed the petition in good faith, believing that they were acting upon their constitutional rights. They believe in the power of democracy and were seeing it in action, or so they thought. If it is proved in the courts that the anti-HST bill is unconstitutional and cannot become law, British Columbians will be seeing the rule-of-law working as it should.

The group of business and industry leaders hope that the issue of the validity of the anti-HST bill will be determined quickly and in this way a judge will be able to make a simple decision about whether or not the draft bill may be introduced to the Legislature. They believe that “the vast majority of BC business organizations support the HST as an integral component of the province’s long-term economic prosperity, making BC businesses more competitive in Canada and around the world.”

“We are hopeful,” they say, “that the Judicial Review we have requested can be completed expeditiously, providing British Columbians with certainty and confidence that considerable time and money will not be expended on a draft bill that is constitutionally unsound and therefore incapable of becoming law.”