Yes. Just because you call something a cat doesn't make it a cat, but the courts always have the last say. They will consider the purpose and true impact of the law. The government can make its intentions clear and say that, on the surface, it is fundamentally a tax. That may be true, but there is a risk.
Mr. Chair, in his question, the committee member pointed out the most important consideration. Insofar as the government is not really trying to generate tax revenue and the main objective is to influence behaviour, the measure is in fact a regulatory one that seeks to regulate or control behaviour, despite being in an act. It has to be tied to an area of jurisdiction, in this case, housing. However, housing is property, and property and civil law have always been the domain of the provinces under Canadian federalism. That fact is all the more important when you consider Canada's bijural tradition. In other words, civil law addresses private law matters in Quebec and common law applies in the rest of Canada, a tradition that is grounded in respect for provincial private law.
Obviously, the federal government has developed all kinds of tools to play a policy role in housing—I was going to say strategies, since it is called the national housing strategy, after all. When such actions are taken in a co‑operative way, so in co‑operation with the provinces, to help them assume their constitutional responsibilities, those actions can be approved by the courts. In that case, though, the action is subject to certain limits.
For example, when the federal government spends money on areas of provincial jurisdiction—not that I'm saying it's right—the courts tolerate it, provided that the spending doesn't reflect a desire to regulate or adopt legal standards to encourage or impose certain behaviours.
Therefore, it's a national housing strategy that is based on the federal government's authority to spend, which applies to aspects of housing that concern the federal government such as indigenous housing. That makes sense. Here, however, the government is going a step further. In an act, the government is trying to govern, regulate, control or encourage certain behaviours and discourage others. As long as the purpose is to discourage behaviours, not criminalize them—because the federal government has jurisdiction over criminal law—federal lawmakers cannot adopt such measures.
That gives rise to this idea of disguising it as a tax, and the courts may very well say that it is indeed a tax. I personally, don't think so, but maybe they will. If they do, the other problem I mentioned still exists, fiscal balance. This deals with the only form of taxation not administered by the federal government. That means some sort of mechanism needs to be put in place. It's clear to me, after reading the bill, that the federal agency responsible has to develop a certain number of tools for the delegation of authority to oversee and administer a property tax, which is something different from collecting sales tax, corporate profit tax or what have you.
Once the government has the mechanism to administer property tax, it will be hard to resist the urge to look for more and more good ideas to fill that space. Canadian history has taught us that. Inevitably, this would disadvantage the provinces, municipalities and school boards, which not only use the tax, but also sorely need it.
