Debates of Nov. 18th, 1998

Petitions

[John Cummins, Reform, Delta—South Richmond, BC]

Mr. Speaker, I am pleased to present a petition today from citizens of Delta who wish to draw the attention of the House to their concerns with Bill C-68.

They would like to see the hundreds of millions of tax dollars that are wasted on licensing redirected to putting more police on the streets.

Questions On The Order Paper

[Peter Adams, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I move that all questions stand.

[John Cummins, Reform, Delta—South Richmond, BC]

Mr. Speaker, I rise on a point of order.

I have three questions. Question No. 119 was asked on September 17. Question No. 132 was asked on September 21. Question No. 138 was asked on September 24. Time has gone by and I have had no response.

Two of those questions have to do with the government's use of the drug mefloquine and the fact that a veteran's family has been denied pension benefits because it has not been provided with the necessary information to support its case. Some of that information should be forthcoming from these questions. I would like to know when I will get them answered.

[Peter Adams, Liberal, Peterborough, ON]

Mr. Speaker, I have noted questions Nos. 119, 132 and 138. I can assure the member I will look into their whereabouts as soon as possible.

I point out that this week, among other things, we have tabled replies to almost 100 petitions. It has been a very busy and productive week. I will look into the whereabouts of those questions.

[John Solomon, NDP, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, I rise on a point of order.

We have seen on many occasions in the House of Commons since the 1997 election a total disregard by the government with respect to responding to questions that the standing orders obligate it to respond to in a certain time limit.

I wonder whether the parliamentary secretary could not only look into these matter but report back tomorrow on when these questions will be answered. These are very important questions, whether they are from the Reform Party, the Conservative Party, the Bloc Quebecois or the New Democratic Party.

These questions are put on the order paper with reference in accordance with the standing orders that allow us to put questions to obtain information from the government. It continues to refuse to adhere to the regulations.

I ask that the parliamentary secretary report back tomorrow on when these questions will be answered.

[Peter Adams, Liberal, Peterborough, ON]

Mr. Speaker, the members are quite rightly concerned about these questions. I will continue to do everything I can.

At present we are at 85% response on petitions and at almost 75% on these questions. I will continue to do my very best to obtain these responses.

[The Speaker]

Is it agreed that all questions be allowed to stand?

[Some hon. members]

Agreed.

Motions For Papers

[Peter Adams, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I ask that all Notices of Motions for the Production of Papers be allowed to stand.

[The Speaker]

Is it agreed?

[Some hon. members]

Agreed.

Points Of Order

[Don Boudria, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I rise on a point of order concerning Bill S-13.

The bill has been passed in the other place and is currently at first reading. Even though the bill is not presently being debated, it has now been introduced and it is my first opportunity to speak on it under a point of order. I wish to discuss what I believe to be the constitutional and procedural propriety of this bill's being initiated in the other place.

I want to make it clear at the outset that I am not in any way taking the position at the present time on the policy embraced by this bill, as there will be ample opportunity to do that. What I am doing is responding in my duty as Leader of the Government in the House of Commons to defend the rules, the rights and the privileges of the House and all members who sit here.

The difficulty with Bill S-13, which has been initiated in the other place, as I intend to demonstrate, is that it constitutes in fact a tax bill and as such constitutionally and procedurally may be initiated only in the House of Commons and only after the House has concurred in the notice of ways and means tabled by a minister of the crown.

I am aware that the Speaker of the other place had occasion to rule on this question when the bill was in the other place. The question before us, however, concerns the constitutional rights of the House of Commons and only the Speaker of the House of Commons has the authority to assert these rights, no one else.

In addition, there are standing orders of the House of Commons that I maintain are violated by this bill and no ruling in the other place or anywhere else can have any impact on the decision of the presiding officer of this House in interpreting the rules of this House.

There are two principles that come into play in this case. The first is stated in Bourinot's parliamentary practice, fourth edition at page 491:

As a general rule, public bills may originate in either house; but whenever they... involve directly or indirectly the levying or appropriation of any tax upon the people, they must be initiated in the popular branch, in accordance with law—

This is based on section 53 of the Constitution Act, 1867:

Bills for appropriating any part of the public revenue, or for imposing any tax or impost shall originate in the House of Commons.

The second principle is stated at Bourinot's page 430 which reads as follows:

It is now a fixed principle of constitutional government that all propositions for the imposition of taxes should emanate from the ministry.

The first proposition then is that the bill must start in the House of Commons and, second, from the ministry.

This principle is embodied in our own rules governing tax bills. Standing Order 83(1) permits that only a minister of the crown is able to table a notice of ways and means which, under our procedures, must be concurred in before a tax bill may even be introduced. Since Bill S-13 clearly meets the test of neither of these principles, the question revolves around the issue of whether it does qualify as a tax bill. In my opinion it does not meet these tests and it is a tax bill.

I say this for the following reasons. Bill S-13 proposes what it refers to as a levy of 50 cents per carton on the manufacture of cigarettes and other tobacco products. This levy would raise, so we are told, $70 million to be paid into a non-government foundation that would support health and education and anti-smoking programs as well as transitional funding for arts and sports groups and tobacco farmers.

Proponents of the bill assert that this is not a tax but a levy and as such is not subject to our ways and means procedures and lends itself to initiation in the other place. This assertion is based, so they claim, on citation of Erskine May's parliamentary practice, 22nd edition, on page 779:

Levies upon an industry for purposes beneficial to that industry are regarded as not covered by the rules of financial procedure and so do not require authorization by ways and means resolution.

Even if Erskine May stopped there one would dispute whether the proposal meets the criterion of proposing a levy for the purpose beneficial to that industry.

But it goes on:

Modern legislation frequently makes provision for the imposition of other types of fees or payments which, although not taxes in the strict sense, have enough of the characteristics of taxation to require to be treated as `charges upon the people' and therefore to be authorized by ways and means resolution moved by a Minister of the Crown.

This distinction between the two types of payments which are or are not covered by the rules of financial procedure is not always straightforward in practice. In particular, May suggests: “Where payment is imposed in order to meet the cost of enforcing a new regulatory scheme which is for the general benefit, rather than for the benefit of the industry”, such a regime is one that requires the use of a ways and means procedures.

Erskine May makes it clear that a levy must be narrowly based and must also have a narrow purpose benefiting the industry on which the levy is made. This is not the case today.

The fact is the very commendable objectives of the bill are of broad public policy, namely to reduce smoking related health costs for young people and for supporting tobacco farmers and others. It is not the tobacco manufacturers who would obviously benefit from this levy on them but of course smokers, farmers and indeed the general public. That is the pith and substance of the bill.

Even the summary of the bill states that the mandate is to reduce the use of tobacco by young persons in Canada. This certainly does not meet Erskine May's test of being a levy on an industry for the narrow and specific benefit of the same industry. As a matter of fact, it is the direct opposite.

Those in the other place who support Bill S-13 relate it to last session's Bill C-32 amending the Copyright Act, which imposes a levy on an industry, but was not preceded by a House of Commons ways and means motion. A comparison of the two bills, S-13 and last session's C-32, emphasizes the ineligibility of Bill S-13 as far as procedure is concerned.

Last session's Bill C-32 imposed a levy on the manufacturers or importers of blank tapes into Canada and provided for the distribution of royalties to writers and performers, whose creativity would result in increased demand for the blank tapes distributed by manufacturers and importers.

This is to the advantage of all those affected by the levy, unlike Bill S-13, which is advantageous to all except those having to pay the levy.

The objective of Bill S-13 is not to increase the demand for tobacco, of course—if it were, we would not be discussing it—but rather to reduce the demand, or in other words to bring about the opposite of a benefit.

There are in fact several examples of bills, like the old C-32, which imposed levies for limited purposes, for the benefit of certain specific industries. These include expenditure and other levies in connection with marketing plans, broadcasting licence fees, and charges for insurance forms relating to specific activities within specific industries.

In each case, however, when ways and means procedures were not required, these levies were very specific, their purpose narrowly defined, their direct benefits as far as the levy is concerned, directly and specifically apparent.

Erskine May, 22nd edition, makes reference to a case that illustrates our subject on page 780. It relates to a bill concerning shipping, which was examined in the British House of Commons in 1973-74. This bill required oil importers to contribute to an international reserve to be used as compensation for damage caused by pollution, and these funds were not part of the consolidated fund. This bill required a ways and means resolution.

There is an obvious parallel with Bill S-13. Like the levy proposed by Bill S-13, this levy was not to be part of the consolidated fund and, as in Bill S-13, the sums amassed would be advantageous only to those who are not part of the industry and have provided the funds in question. As I have already indicated, this bill was subject to the ways and means procedure.

As I indicated at the start, I do not wish to see my objections to the procedure for Bill S-13 misinterpreted. They probably will be, anyway.

I believe the objectives of this bill are highly desirable. The policies proposed by the bill are creative and innovative. I, however, have problems with this bill, namely that the implications relating to procedure are totally regressive and undemocratic.

For more than 300 years it has been a fundamental of parliamentary democracy that a taxation measure may not be initiated in the upper house. It must be initiated by this House on a motion of responsible government. That is equally true in the United Kingdom and it is even true in the United States of America.

No matter how interesting I may find a program proposed in a bill that comes to us from the other place, it is my duty, Your Honour, to draw to your attention the fact that this bill violates the constitutional practices and more important the rules of the House.

The fact that the presiding officer of the other place thought the bill was in order is not material to the discussion. It is our constitutional system, and in this constitutional system only Your Honour as Speaker of the House and no one else can determine what a money bill is or what a tax bill is.

Mr. Speaker, I submit to you that Bill S-13 is indeed a taxation measure. As such it should have been initiated and can only be initiated in the House of Commons after concurrence in a ways and means motion and furthermore proposed by the minister of the crown.

I ask Your Honour to consider this and to rule that the House cannot consider this bill for the reasons that I have just stated.

[The Speaker]

We will have quite a few interventions on this. Those of you in the House at this point who wish to intervene will please stand so I can see who you are.

This is how I would propose to attack this particular problem. I caution members to begin with that we are not going to discuss the 44 or 45 clauses of the bill. I would like your advice on a very narrow interpretation, which is whether or not this bill should be introduced into the House of Commons. If I find that the arguments members are putting forward are going to be dealing with the clauses, I will intervene. I would ask you, my colleagues, to stick to that very narrow point. I want your advice. I want your very best advice.

This is how I am going to proceed. I am going to take the mover of the bill. I will hear from her first. Then I am going to hear from a spokesperson for the Reform Party. If there is a spokesperson for the Bloc Quebecois, I will hear from him or her. Then I will hear from an intervener for the New Democratic Party. I will hear from an intervener for the Conservative Party. I will then come back to the Liberal side. At that point, I will go back and forth from the Liberal side to the opposition side until we have the information put in front of the House.

I would ask you, my colleagues, to stick to that very narrow point. Please do not get into the clauses of the bill because that may come later if we, or if I decide that this will come before the House.

The hon. member for St. Paul's.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I am very pleased to rise to speak on this point of order concerning Bill S-13, an act to incorporate and to establish an industry levy to provide for the Canadian anti-smoking youth foundation.

Mr. Speaker, I rise as you suggest, not to speak to the merits of this bill but to address the four main concerns which have been raised by the House leader. I intend to address each of the concerns individually. There is some overlap between those concerns. I hope we can deal with this carefully and that we can put the proper clarity on this issue.

I agree that the government has the prerogative of financial initiative in respect to the imposition of taxes by the convention and as the hon. minister pointed out proposed by section 53 of the Constitution Act. They must be introduced in the House of Commons.

The issue today is whether the levy as established in part II of the bill is indeed a levy or a tax. The principal authority, Erskine May, says that a levy on an industry for its own purposes is not a tax.

The four issues that the House leader has raised are: what is the criteria to determine a levy; what is the stated industry purpose; whether this bill proposes a levy or a tax in relationship to a ways and means motion; and does the beneficiary group of the levy have to be specific as in Bill C-32 to which the House leader referred.

Simply because the benefits of the levy are not narrowly identified, we do not believe that it constitutes any procedural justification to rule Bill S-13 out of order. Nothing in Erskine May supports the notion that beneficiaries of the levy need to operate on the model of Bill C-32, i.e., be directed to a specific group.

I am afraid that the hon. member was referring to a previous version of the bill. I would like to point out that the version passed in the Senate in June of this year has nothing to do with sponsorship or farmers. This is purely to set up the foundation. I think the hon. House leader has referred to an older version of this bill.

First I want to talk about levy criteria. In British practice as followed here in Canada, a levy is in order procedurally. We have to remember we are only talking about procedural issues and the definition of a levy. The levy must be imposed on the industry. It must serve an industry purpose. The funds from the levy never form any part of government revenues. I can say that Bill S-13 was very carefully drafted to meet these three criteria.

The purpose of this bill is the tobacco industry's publicly stated purpose. Mr. Robert Parker stated before the Standing Senate Committee on Legal and Constitutional Affairs in April 1997:

The member companies are prepared to work with any responsible agency on the issue of youth smoking to further reduce it.... As I have said, I have some legitimate questions of how credible we can be.... A program started voluntarily by the industry when it is selling cigarettes to tell kids they should not smoke would be attacked most vocally by... the anti-tobacco people.

Thus we have S-13 to help them out here.

Imagine next year the public relations benefit to the industry if Mr. Parker gets to hold a copy of the bill and say “We are spending $120 million a year to stop Canada's youth from smoking”.

It is quite clear that the first two paragraphs of clause 3 refer to the industry's objectives. Clause 3 deals with the purpose which is that of the industry.

Regarding clause 3(a), the industry would like to be involved in initiatives to reduce youth smoking but it does not have the credibility to do so. It would participate in 3(b) however in any initiative of a credible agency.

As recently as October of this year, Mr. Don Brown the chairman and president of Imperial Tobacco, made similar comments regarding youth smoking and the industry's absence of credibility to the Vancouver Board of Trade. He said:

We believe children should not smoke.... We might achieve more if we tried working together. Perhaps a better approach would be for like-minded groups to take a fresh look at the issue of underage smoking.

We know we cannot be the messenger; we simply just do not have the credibility.

Bill S-13 is a measure that has been created to assist the industry in accomplishing this publicly stated objective. Six explicit industry purposes are listed in Bill S-13. Clause 3(1) gives the purpose of the act:

The purpose of this Act is to enable and assist the Canadian tobacco industry to carry out its publicly-stated industry objective of reducing the use of tobacco products by young persons throughout Canada—

Clause 3(1)(c) addresses the lack of credibility:

the industry is incapable of addressing on its own the problem of tobacco use by young persons because, by its own admission, its members and agents lack credibility as advocates for a reduction in the use of tobacco products;

Clause 3(1)(e) talks about pre-empting further restrictions:

it is foreseeable that the industry's ability to manufacture and sell tobacco products will be further restricted if the rate of use of tobacco products by young persons is not reduced—

The industry is well aware of the flood of legislation attacking the use of tobacco in the U.S. and recognizes that it will not be long before it arrives here in Canada, for example the recent B.C. and Quebec legislation.

Clause 3(1)(f) deals with co-ordination:

industry efforts to reach this objective need national co-ordination.

In as much as tobacco companies market their products nationally, there needs to be national co-ordination of industry efforts to reduce or eliminate youth smoking.

Clause 31 is about sponsors:

—a sponsor of the Foundation may use the name of the Foundation—

Even with the debate around this the bill allows the industry to use the name of the foundation for the purpose of seeking recognition for the sponsorship. There is no point in the industry being a party to the legislation without receiving appropriate recognition for its contribution. Clause 31 specifically entitles the industry to seek recognition of its sponsorship of this foundation.

Clause 32(1) is about independence:

The Foundation is established on behalf of the Canadian tobacco industry but is independent of it.

It is the very independence of the foundation that provides the legislation with the credibility Mr. Parker said the industry lacked in his statement of April 1, 1997.

The bill is also beneficial to the industry in a number of less specific ways. It is likely to help improve its negative public image. It will probably reduce the possibility of civil litigation and restrictive legislation being enacted, both of which restrict the industry's very existence.

It is well accepted that smoking is addictive, toxic and in many cases fatal. The industry's defence to liability lies in the smokers' voluntary acceptance of these risks. The industry recognizes that addiction is more likely when smoking starts in youth who are less likely to make informed decisions regarding this risk.

Bill S-13 could contribute to a successful defence against liability for causing the addiction of youth. It is evidence of the industry's efforts to combat youth smoking.

The levy purpose need not be exclusive for the industry.

Broader purposes are served by Bill S-13 as well.

The purpose of the levy in Bill S-13 is to provide the tobacco industry with a credible claim that it does not deliberately market its products to youth and that it supports efforts to curb youth smoking.

The fact that any reduction in youth smoking also serves a public policy objective does not challenge the procedural acceptability of the bill.

Nothing in Erskine May's Parliamentary Practice suggests that an industry purpose cannot also coincide with a public policy. Indeed, the precedents cited in May have both a private and a public purpose. They include the Industry Training Act of 1964. This bill was to establish a mechanism for the creation of a number of industry boards, the purpose of which was to provide training opportunities for the employees. Such a scheme not only benefited the particular industry, but served a public purpose.

One of my favourite ones is the Betting Levy Act of 1961. This bill was designed to improve horse breeding and to further the advancement of veterinary science. This clearly goes beyond the private industry purpose and is in the interest of the public at large.

In the Sea Fish Industry Act of 1951, a white fish organization was established to develop and regulate the white fish industry. The purpose was to benefit the industry and to serve a public objective to preserve employment in the fisheries.

In fact, the bills cited in May that were not exempted from the financial procedures and therefore required a ways and means motion failed to meet the criteria because they were not for an industry purpose or the funds became part of government revenue.

In 1974-75 there was the Air Travel Reserve Fund. This bill established a levy to compensate passengers who sustained a loss as a result of the financial failure of a travel company. The charge was considered to have an industry benefit. As such, it met the first of the two criteria for a charge to be a levy for industry purposes.

It failed, however, on the second criteria, that the funds would not form part of the consolidated fund. The charge was held to be a tax because the government had the discretion to dispose of the assets of the fund in the event of its being wound up, thus making it possible for the consolidated fund to benefit at the expense of the travel organizers.

In Bill S-13, any surplus reverts to the tobacco manufacturers.

The merchant shipping bill which the hon. member mentioned established a charge to pay for pollution damage. This impost was viewed to be so clearly not for the benefit of the industry concerned that it was held to be a tax in spite of the fact that the proceeds were not payable to the consolidated fund.

The precedent that the hon. member mentioned in terms of Bill C-32, an act to amend the Copyright Act, adopted in the last parliament, contained a levy provision. In this particular case the levy was imposed on the sale of blank audio tapes and the funds thus collected were to be distributed to authors, performing artists and recording companies. That also did not require a ways and means motion.

The Canada Shipping Act of 1987 established a levy to be paid by the ship owners for the purpose of creating a pollution fund to deal with oil spills caused by ships and tankers. The rate of the levy is set by the Minister of Transport and the money collected is in a special account in the consolidated revenue fund. This act was presented twice without a ways and means motion preceding its introduction.

The Canada Petroleum Resources Act created an account known as the environmental studies research fund to be under the administrative responsibility of the Minister of Energy, Mines and Resources or the Minister of Indian Affairs and Northern Development to finance environmental and social studies to assess the impact of petroleum exploration and development on frontier lands. Every interest owner in the frontier lands is to pay into that fund according to a rate set by the minister. Again, this act was presented twice without a ways and means motion preceding its introduction.

Those are the first two points. The third point is the whole issue of a levy versus a tax.

We believe that Bill S-13 does not require a ways and means resolution because it does not impose a tax and therefore does not have to originate in the House of Commons.

The levy in Bill S-13 is not a tax. The express provision of the bill makes this clear. The clauses of the bill refer to a levy, not a tax. Levies, for industry purposes, and as we have talked about in Erskine May, are recognized in all procedural authorities as being distinct from taxes.

If the levy in Bill S-13 were indeed a tax it would constitute a charge on the people. According to Erskine May's 21st edition at page 726, a charge on the people is normally imposed generally and intended to be used for general purposes.

That is why, as May further explains, that levies upon an industry, the proceeds of which are intended to form a fund for the purposes of that industry, have been held not to be charges.

Erskine May lists 12 bills that have been considered levies for industry purposes and not taxes, and so did not require the ways and means resolutions. Some of these include the Industrial Training Act, the Betting Levy Act and the Sea Fish Industry Act that we talked about.

Also, as I have just alluded to, there were a number of Canadian precedents of levies for industry purposes which did not have a ways and means resolution: Bill C-32, the act to amend the Copyright Act; the Canada Shipping Act; and the Canada Petroleum Resources Act. The last two examples were introduced twice, as we said, without a ways and means motion.

The Canadian precedents suggest that the criteria applied in Canada to the consideration of bills containing levies are not as strict as those followed in British practice. Bill S-13 not only meets the criteria suggested by those Canadian precedents, it also meets the more strict criteria spelled out in Erskine May.

To reiterate, levies for industry purposes have three characteristics: the levies must be imposed on the industry; the levies must be imposed for the industry's own purposes; and the money must never form a part of government revenue.

The levy under Bill S-13 is clearly imposed on the industry. Clause 36 of the bill expressly provides that the funds come from the tobacco companies:

36.(1) Every person who, for the purposes of trade, manufactures, produces or imports tobacco products is liable, on selling, transferring, or otherwise disposing of the tobacco product, to pay a levy...

The levy in Bill S-13 is imposed for the industry's own purposes. Of course, there is also a broader public policy objective which I will not go into. The two purposes, however, are not mutually exclusive goals and there are Canadian and British precedents to prove that this is acceptable procedurally.

The funds generated from the levy never form part of government revenue. The specific clauses of the bill make this clear. Subclause 33(1) states that the foundation is not an agent of Her Majesty and the funds are not public funds. The funds are collected by the foundation, placed in its own account and distributed to the foundation alone. Any surplus funds after wind-up of the foundation are returned to the tobacco companies.

Subclause 35(3) states that in the event of the dissolution of the foundation, any property of the foundation shall be transferred to the council, that is, the Canadian Tobacco Manufacturers' Council.

In any event, the question as to whether the levy imposed is in fact a tax is really a question of law to be determined by the courts, not the Speaker.

The procedural question must be limited to whether the bill, on the face of it, is a tax or a levy for industry purposes. The bill expressly provides that the foundation is established for the industry and that the purpose of the bill is to meet this industry's objective. Inquiring beyond the face of the bill and questioning the express provisions of it is going well beyond the realm of procedure and into an area of law with which the Speaker is not to deal.

The more legal opinions cited for or against the question of whether Bill S-13 is a levy or a tax, the more obvious it becomes that the issue is a matter of law and legal interpretation. These matters do not normally fall within the jurisdiction of the Speaker of the Commons.

As a matter of law, a number of legal experts have already testified before the Senate Standing Committee on Social Affairs, Science and Technology that the charge imposed in Bill S-13 is not a tax. They have also provided written opinions to that effect. Mr. Mark Siegel, senior tax counsel at Gowlings, Strathy & Henderson, is of the view that the levy in Bill S-13 is part of a regulatory scheme. The money is not intended to provide revenue for general public purposes. The money is to be used to carry out the objectives of the foundation for the tobacco industry. He reaffirmed his opinion on November 5, 1998, as a result of the Supreme Court of Canada decision in the Eurig Estate.

Mr. Michael Clegg, an expert on matters of parliamentary law and procedure, also has concluded that this bill is not a tax.

The last point concerns whether the beneficiaries of this levy are specific, as the House leader pointed out, in terms of Bill C-32.

If the argument is that Bill S-13 is out of order because the beneficiaries of the levy are not specific, simply because the beneficiaries are not narrowly identified does not constitute any procedural justification to rule Bill S-13 out of order. Nothing in Erskine May supports the notion that the beneficiaries of the levy have to be specifically designated. What is required is that the levy must serve an industry purpose.

There is no precedent available from British or Canadian sources that substantiates any claim that the beneficiaries must be a specified group. There are numerous British and Canadian examples which suggest that the beneficiaries of a levy can be broadly defined and that they do not need to be directly related to the industry on which the levy is imposed.

For example, consider again the Betting Levy Act which was implemented for the advancement and encouragement of education in veterinary science. This purpose was much broader than the specific industry objectives of improving breeds and horse racing. We believe that certain dogs, cats and cows also benefited.

Although the industry objective of the Canada Shipping Act is to protect that industry from excessive liability with respect to suits for pollution damage, there is clearly a broader public policy objective in ensuring that spills are properly treated and that the environment is preserved.

It is important to realize that we are here to debate whether or not this is a tax or an industry purpose levy. Mr. Speaker, we believe that you are a servant of the House and that your rulings will seek the interest of the House as a whole. The question as to whether the levy imposed is a tax is really a question of law, as I have explained.

The procedural question we must limit ourselves to is whether the bill, on the face of it, is a tax or a levy for industry purposes. Bill S-13 expressly provides that the foundation is established for the industry and that the purpose of the bill is to meet the industry's objective. Inquiring beyond the face of the bill and questioning the express provisions goes well beyond the realm of procedure and into an area of law in which the Speaker does not deal.

In the case of any doubt, we know that the Speaker should favour the course that will allow the House to debate the merits of the bill and to decide rather than the Chair. This can only happen if the Speaker lets the bill proceed to second reading.

If the Speaker rules that there are other arguments and precedents not discussed in this debate, we would appreciate the opportunity to address them at that time.

Canadian practice provides a precedent based on British cases, proving that it is possible for a ways and means resolution, should it be deemed required, to be moved post-second reading. I believe that the Speaker should consider this option.

[Grant Hill, Reform, Macleod, AB]

Mr. Speaker, I personally support the principles of Bill S-13, due to its health ramifications. This bill deals with many of the weaknesses in the Liberal tobacco measures, specifically the weakening of the tobacco control act by Bill C-42 which is currently being debated.

Health groups throughout this country are supportive of this bill.

Reformers treat private bills as a free vote on which a constituent has direct and significant impact.

Cabinet should hang its collective head in shame for having such a procedural wrangle on this bill.

[Judy Wasylycia-Leis, NDP, Winnipeg North Centre, MB]

Mr. Speaker, I am pleased to have the opportunity to participate in this serious discussion of whether or not Bill S-13 is in order to be pursued in this Chamber.

The member for St. Paul's has put forward some very compelling arguments about why first reading of Bill S-13 would be in order without a royal recommendation. I recommend them to you, Mr. Speaker.

I bring to your attention the specific authority mentioned earlier to help you in your considerations. Erskine May's 21st edition, at page 716, is clear when it states:

The imposition of charges on funds other than the Consolidated Fund or the National Loans Fund does not require the royal recommendation, unless it involves an increased payment out of one or other of those Funds, or increases the liability... upon them, or automatically attracts a grant for moneys provided by Parliament.

The Speaker of the Senate deemed the bill not to have required royal recommendation and therefore sent the bill to this Chamber quite properly according to the rules as they now stand.

Today the government wishes to raise a constitutional principle of money bills not originating in the Senate. Following my Liberal colleague's comments I will also refer to Beauchesne's, page 97, citation 324. These citations deal very much with the House leader's reference to Bourinot's mention of two principles outlined on page 491. The two citations on page 97 and 98 are citations 324 and 325. Citation 324 says:

The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.

Citation 325 says:

In all matters of doubt, the Speaker will consider attentively the opinions of Members. Sometimes, instead of expressing an opinion of either side, the Speaker may ask instructions from the House or reserve his decision on the point of discussion, or suggest that the House may, if it thinks proper, dispense with the Standing Order in a particular case. In doubtful cases, the Speaker will be guided largely by circumstances.

The powers of the Senate are not the only procedural issue at stake here. It would be very useful for us and for you, Mr. Speaker, to consider the broad procedural history of the way tobacco legislation has been treated by the governmental institutions of the country.

Let us remember that the current round of the Tobacco Act, of which in effect Bill S-13 is a part, resulted from the fact that the supreme court ruled that sections of the Tobacco Act were unconstitutional because it held that the government had not provided enough evidence of the public health benefits of the act to infringe upon the free speech rights of tobacco companies. In essence, the court placed the burden of proof on governments if they wish to regulate the advertising of addictive drugs to children. The court effectively gave the act of convincing children to become addicted to a health damaging drug the constitutional protection of free speech.

Earlier the government ignored its deadline in the Tobacco Act for the introduction of tighter regulations on tobacco sponsorships. It has acted as if an agreement it had struck in private with the tobacco companies had the force of law. I brought this matter to your attention, Mr. Speaker, in a point of privilege on September 30, 1998.

It is also worth pointing out that the government is seeking to pursue a technicality to trump a badly needed public health measure to protect children. At the same time it refuses to take effective measures to enforce existing laws against the sale of tobacco to children and is therefore collecting some $80 million a year from the sale of tobacco to children.

If the government is concerned about technicality and is preoccupied with procedure and formality then there is clearly one area where the government should be focusing its attention. It clearly should be looking at technicalities around the enforcement of laws today which restrict the sale of tobacco to young people.

Throughout this sad episode all the legal, constitutional and procedural cards have been stacked against those who want to improve public health and in favour of those who seek to profit from selling an addictive poison.

I ask you, Mr. Speaker, to keep this in mind in your decision, because I think we truly are dealing with a grey matter in terms of procedures and constitutional and legal issues around Bill S-13 before us today. Given that the precise occasions requiring a royal recommendation and the definition of a money bill are in that grey area of procedure and history of procedure in the House, I ask you to give the benefit of the doubt to those who wish to advance the cause of our children's health.

As my final point it is worth mentioning that it is curious indeed that the government, in rising on this point of order, actually has expressed concerns about the democratic rights of the elected Commons versus the rights of the unelected Senate.

Certainly it is causing us some concern because we know this is a government that resurrected the undemocratic practice of routinely introducing government bills in the Senate before the House, something which the New Democratic Party has vigorously protested.

This is the government that has steadfastly refused to act upon calls from the New Democratic Party and millions of Canadians to scrap the unelected Senate, so we think it is rather inappropriate at this point to be focusing so much in terms of constitutional issues and the origins of a bill from the Senate. We believe that the government cannot have it both ways. It cannot use the Senate when it finds it convenient to do so and then hide behind it when it does not want to proceed with a particular measure.

I conclude with the most important message I think all of us concerned about Bill S-13 are raising today, and that is we are procedurally dealing with a grey area. We need to look very much at the circumstances surrounding the bill and the history of tobacco legislation in the country. We need to very much consider the public interest and the health of children in these deliberations. I recommend that position to you, Mr. Speaker.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, it is with great pleasure that I rise to speak to this point of order and to offer my humble comments. I commend the hon. member for St. Paul's for her initiative in this regard as well as the original mover of the bill in the Senate.

I am proud to follow the remarks of opposition members, particularly from the Reform and the NDP, who at least appear to be prepared to embrace a bill coming from the Senate, which is refreshing.

I had hoped the government House leader would have reconsidered this strategy of buck-passing to you, Mr. Speaker. It seems that the government is content to hand this ticking time bomb to the Chair as opposed to clearly and publicly state the government's opposition, or should I say cabinet's opposition to this initiative.

The record will show that the government House leader in his remarks admitted that there is a technical difference between a tax and a levy. That is an important admission.

It is doubtful that any decision that you will make, Mr. Speaker, will have more far-reaching impact on the health and longevity of the lives of young Canadians than the decision that you will be making on this point of order. I say this at the outset as a backdrop to the procedural arguments I would like to make.

I have every confidence that the Chair will make its decision based solely on the rules of the House, not the merits of the bill, not the emotion or the rhetoric that sometimes follows a bill such as this one.

My earnest submission is that there are grey areas for the Speaker to decide. Your Honour is treading into an unchartered area. These grey areas, I submit and as has been previously submitted, should be decided in favour of this House, this Chamber as a whole, not the government which has refused to engage in a debate on Bill S-13. It is only the cabinet, it appears, that is unwilling to declare its opinion with respect to the bill.

You will have available to you, Mr. Speaker, the decision of the Speaker of the other Chamber. I will admit that that is not binding on you, Mr. Speaker, but it is in fact a compelling argument and something that should be considered by you.

The government House leader has suggested that the levy proposed in the bill amounts to a tax, a burden on people. Certainly the levy has some similarity to a tax at first blush, that is to say, it looks, smells and perhaps acts like a tax but is not a tax. One might say that there is a charge to be made on anyone selling tobacco products and an offence is created by failing to pay that levy. However, there is proof that this is not a tax if one examines in detail the provisions of the bill.

Let us look at this closely. The charge is made not on the population at large but is placed on the industry itself, with the proceeds directed specifically. The proceeds are to be used completely outside the purposes of the government. The proceeds are not to be used by the government. It is specifically directed in the bill that they not be used for that purpose.

There is precedent for this situation and it is dealt with at page 763 of the 18th edition of Erskine May. Speaking of the instances when levies have been treated as matters outside the ways and means rules, Erskine May cites 10 instances of bills which imposed levies and levies which have been used for purposes other than the direct positive benefit of an industry. The levy can be used for other purposes. I submit this is the case with respect to Bill S-13. I quote from page 763 of Erskine May:

It may sometimes be difficult to define the limits of an industry, as in the Wheat Bill of 1932 (which was treated as within this rule) under which levies upon importers of flour formed a fund for making payments to growers of wheat. An even more difficult case was the Mineral Workings Bill, 1951, under which a fund fed by contributions from ironstone operators, owners and the Exchequer was set up to restore agriculture land from which iron ore had been extracted. This again was held to be a levy on the operators and owners though it involved some extension of the rule.

The royal recommendation was required on the mineral workings bill because of the contribution required from the exchequer. That was significant in the House, as recorded in volume 486 of Hansard , column 1809. There was no royal recommendation required in the instance of the wheat bill. Both bills passed both houses without being treated as taxes.

My submission is that Bill S-13 has nothing to do with public funds at all. Further, it distinguishes itself from this traditional definition of tax because there is no reference to public funding.

The House passed in the last parliament a levy under the amendments to the Copyright Act. A levy was placed on the sale of audio tapes and the proceeds of the levy were directed to go to a board, not for the improvement of the audio tape industry but for the benefit of music composers. The House at that time did not treat this levy as a tax. I suggest that this situation is very akin to the one now before the Chair presented by Bill S-13. It is a strong precedent that I urge Your Honour to examine closely.

Whether or not a levy proposed by Bill S-13 is a tax may be a question for the determination of the courts, as was mentioned by my hon. friend across the floor. There is a legal definition that I would refer Your Honour to and that is in the case of Lawson v Interior Tree Fruit and Vegetable Committee of Direction, 1931, SCR,357, a Supreme Court of Canada decision.

I cite from a crib note in the decision where a definition of a tax was given: “Whether a levy is a tax or a fee was considered in Lawson—Duff J. for the majority concluded that the levy in question was a tax because”—and this was the test—“it was enforceable by law”. Clearly it would be here. Second, it was “imposed under the authority of a legislature”. There is no difficulty with that. Third, it was “levied by a public body”. This is not the case here. Fourth, it was “intended for a public purpose”. Again, it does not fall squarely within the definition contemplated by the supreme court.

Mr. Speaker, in that discussion you will read of the evolution of tallage to taxes. The central theme is that taxes are funds for the use of the crown. The industry levy in Bill S-13 provides no support for the crown. Indeed the funds from the levy are specifically denied to the crown by the terms of this bill. That is specifically set out. This is significant.

The proceeds of the levy do not accrue to the crown and equally important, are not for public uses, that is, uses determined by a government body. Here the body is non-governmental. The proceeds go to a private body, the foundation, for its use within the restrictions that are set out in the bill.

While there may be a general benefit to the community derived from the work of the foundation, the work is not carried out by the crown or any agent of the crown. The work of the foundation is not subject to the scrutiny of parliament. Indeed one of the criticisms against this bill is that the auditor general would not be able to examine the funds or the foundation. That again I submit is an admission that this is outside of government control.

In ordinary language it is not a government body supported by tax revenue from the consolidated revenue fund. This clearly demonstrates that the body is outside the purview of government regulation or interference and not subject to direct government scrutiny.

Therefore I submit that if there is any doubt in your mind, Mr. Speaker, about the difference between a tax and a levy on this industry, as discussed in Erskine May, that doubt should be resolved in favour of consideration by this House, leaving ultimate determination for the courts, should it go that route.

As to the precedents which may be cited of instances where the Speaker has disallowed Senate bills on the basis of their being taxation measures, please keep in mind that in most instances these bills altered existing tax rates. There was no doubt or grey area in those precedents.

This is not a case to err on the side of caution or exclusion regardless of the merits of this bill. There is provision in our standing orders to permit the House to waive any claim to its financial privilege vis-à-vis the Senate. If the House is to have the opportunity to either waive such a claim or to have a conference with the Senate on a bill such as Bill S-13, which is also an option, the Speaker ought not to intervene to prevent the House from considering those questions. This is tantamount to the government posing a pre-emptive strike. Any intervention by the Speaker at this point before the House is fully seized with the complexities of Bill S-13 would deny the House the opportunity to perform its usual duties to deliberate on these questions.

Therefore I would urge Your Honour not to intervene in this matter. This pre-emptive strike would in fact deny the opportunity for us in this House to do the work that is important and desired by all Canadians and all members of the chamber.

There is one techical point I would like to make. The hon. government House leader referred to the summary of the bill in his remarks. Your Honour will be aware that the summary is not part of the body of this bill and is not really a proper point of reference.

What the government is essentially trying to do is on the one hand to give the impression that it likes the bill. The government House leader used words like praiseworthy and commendable. Yet the government is trying to kill this bill. He is saying “Wash me but don't make me wet”.

I want to make one final point. The government House leader gave a public interview on this matter and he asserted that the bill was improper “in its present form”. Those were the words that he used.

The government House leader and the government itself has within its power the ability to cure each and every one of these alleged irregularities in the bill if that is in fact the government's concern. If that is what the government is worried about, the Minister of Health or any minister of the cabinet can adopt this bill and take it under their wing and can call it their own. I do not believe there would be any objection from the movers of this bill in either the Senate or this chamber to the government doing that.

Earlier this month I asked the government House leader if he was prepared to provide government time for this bill and he refused. The government could and should assume responsibility for the carriage of this bill. I ask that this House waive any alleged claim to its privilege. This is what the government should be prepared to do.

Those are my remarks with respect to this point of order. As a final note, again I am urging you, Mr. Speaker, not to do what the government itself is not prepared to do. If we strike down Bill S-13 at this particular time, the House and the government will not have the opportunity to speak or propose remedies to the government's objections, nor will the entire membership of the House, and through us, the Canadian people, be provided with a true and healthy discourse on this matter.

Mr. Speaker, make the government politically responsible. The government does not have the votes to defeat this bill, if that is the route it wants to go. In the name of patience and what is right for this House and what is right for every house in Canada, I urge you, Mr. Speaker, to deny the government House leader's arguments. Let us put children ahead of political preference on this point.

[Bob Speller, Liberal, Haldimand—Norfolk—Brant, ON]

Mr. Speaker, I raise this point of order at the first opportunity so that I may conform to your dictum suggested in the House in your ruling of October 16, 1995 when you said “It is the duty of every member of the House to be vigilant in regard to section 53 of the Constitution Act and to scrutinize bills no matter where they originate”.

Mr. Speaker, section 53 of the Constitution Act as you are aware, states that bills for “appropriating any part of the public revenue or for imposing a tax or impost shall originate in the House of Commons”.

I respectfully submit that Bill S-13, an act to incorporate and to establish an industry levy to provide for the anti-smoking youth foundation, while not a bill that appropriates any part of the public revenue requiring a royal recommendation, is nevertheless a bill that imposes a tax or an impost and accordingly should have been originated in this House.

Bourinot on page 491 of his fourth edition reminds us that:

As a general rule, public bills may originate in either house; but whenever they... involve directly or indirectly the levying or appropriation of any tax upon the people, they must be initiated in the popular branch, in accordance with law and English constitutional practice.

With respect to this practice, Bourinot points out that it is now a fixed principle of constitutional government that all propositions for the imposition of taxes should emanate from the ministries.

Our standing orders provide that in order to introduce legislation that imposes a tax or an impost there must first be a notice of ways and means followed by the adoption of the motion and only a minister of the crown may do so.

Clause 36 of Bill S-13 requires those who manufacture, produce or import tobacco products to pay a levy. Historically in Canada tobacco has been taxed by means of legislation preceded by a ways and means motion that provides for “that it is expedient to impose, levy and collect on tobacco and cigars manufactured in Canada”. So reads the Commons Journal of 1918, page 233 and so reads the act based on that ways and means motion, an act to amend the Inland Revenue Act 1918, C.28,2.1.

In fact, going back even earlier in Canada's history, the Inland Revenue Act of 1883, section 248 uses the same language, i.e., “on tobacco and cigars manufactured within the Dominion of Canada, there shall be imposed, levied, collected the following duties of excise”.

The same wording continues to this day. In the Revised Statutes of Canada 1985 in chapter E-14, the Excise Act, section 200, duties of excise, states “there shall be imposed, levied and collected on tobacco and cigars manufactured in Canada”.

As Shakespeare said, what's in a name, a rose by any other name would smell as sweet. That is in the case of Bill S-13 it may be demonstrated that a levy is in fact a tax.

During the debate in the other place in support of the procedural acceptability of the bill, the sponsor of Bill S-13 relied particularly on Bill C-32, an act to amend the Copyright Act, which was adopted by this parliament in 1997. Bill C-32 imposes a levy on persons who manufacture blank tapes in Canada or imports them and arranges for the distribution of these levies to groups, including those representing authors and performers.

While Bill C-32 may not have been preceded by a ways and means motion, it was yet introduced by a minister of the crown. Furthermore, the summary of Bill C-32, now chapter 24 of the Statues of Canada for 1997, points out that the enactment in effect provides among other things a regime to protect performers' performances to conform to an international convention, and establishes a remuneration regime in relation to the private copying of musical works, performers' performances and sound recordings.

In other words Bill C-32 comes within the exception set out in May's Parliamentary Practice , 22nd edition, at page 779 where it states “Levies upon an industry for purposes beneficial to that industry are regarded as not covered by the rules of financial procedure and so do not require authorization by a ways and means resolution”.

The sponsor in the other place relied considerably upon the 21st edition of May's Parliamentary Practice in support of his position. The 22nd edition of May notes at page 779 “Modern legislation frequently makes provision for the imposition of other types of fees or payments which, although not taxes in a strict sense, have enough of the characteristics of taxation to require to be treated as `charges upon the people' and therefore to be authorized by a ways and means resolution moved by a minister of the crown.

He also goes on to say “This distinction between the types of payments which are or are not covered by the rules of financial procedure is not always straightforward in practice”.

In particular May suggests “Where payment is imposed in order to meet the cost of enforcing a new regulatory scheme which is for the general benefit”—and I highlight general benefit—“rather than for the benefit of the industry”. That is on pages 779-80. Such a regime is one that requires the use of financial procedures.

Section 3 of Bill S-13 says the purpose of the act is “reducing the rise of tobacco products by young persons throughout Canada”. While the section refers to that being an industry objective, there is nothing more fundamentally public than matters of health, in particular the health of our young Canadians.

In the case of Bill S-13, the smoking public would be the real recipient of any benefit, not the tobacco industry. The purpose is a public purpose. That is its pith and substance. It is a public purpose. As the summary of Bill S-13 states, the mandate is to reduce the use of tobacco by young persons in Canada. In fact, the new title of the bill endorses the public purpose. Accordingly, Bill S-13 does not come within the exception mentioned above.

In fact, Bill S-13 is not unlike the reference in the 22nd edition of May to the case of the merchant shipping bill, 1973-74 which imposed an obligation on importers of oil to contribute to an international fund for the compensation for oil pollution damage, which required a ways and means resolution, even though the contributions were not to pass through the consolidated revenue fund. The levies to be raised by Bill S-13 are also not destined for the consolidated revenue fund.

In effect the levy to be imposed by Bill S-13 smacks of a tax. It represents the imposition of levies, charges or fees which are akin to taxation in their effect and characteristics and thus are subject to a ways and means resolution. That can be found on page 777 of May.

Apart from the public policy of permitting a group or an industry to raise money either through a public tax, levy or impost for a benefit that flows to the public, as opposed merely to the industry, Bill S-13 would also not only breach the historical constitutional convention that only the crown may impose a charge upon the people, but it would also fly in the face of the House of Commons jealously guarding its role in parliament. As Bourinot reminds us, such measures “must be initiated in the popular branch”.

The history of raising public revenue from the tobacco industry in Canada shows clearly that it was done by means of imposing a levy of excise under the aegis of the financial procedures in our standing orders. This is not the case for Bill S-13. Accordingly this bill should not remain on the Order Paper.

[Keith Martin, Reform, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I am here to speak on the point of order concerning Bill S-13, an act to incorporate and establish an industry levy to provide for the Canadian anti-smoking youth foundation, a bill that I personally support. I rise not to speak on the merits of the bill but to address the concerns raised on the point of order by the hon. member and also to compliment the hon. member for St. Paul's for her action on this as a member of parliament and as a physician.

This bill would not have come up if not for the failure of the government to deal with the issue of smoking in Canada, a failure of a government that in 1994 lowered the tax rate on cigarettes which has caused nearly a quarter of a million children to take up cigarette smoking. Bill S-13 attempts to deal with it. That the bill had to be brought in this way is unfortunate but it has been dealt with and brought in this way because of the government's failure to actually do very much on the issue of smoking in Canada.

I would like to speak on procedure and the way this is done is supported by a number of precedents, including Bill C-32, the Canada Shipping Act, and the Canada Petroleum Resource Act that show very clearly this is a levy and not a tax.

I encourage you, Mr. Speaker, in your position as an upholder of the House and as an upholder of the rules of the House, to look at that issue and see very clearly that the hon. member for St. Paul's is correct in her assessment and that the government House leader is not.

[George Proud, Liberal, Hillsborough, PE]

Mr. Speaker, I will not take long on this point of order, but I want to address the concerns raised in the point of order by the hon. minister.

I express first of all my sincere concern that this legislation will not be given the proper attention that I think it deserves in the House of Commons.

As hon. members well know, parliament evolved out of the Westminster model of parliamentary government. There are three very important actors in this model, the government, the House of Commons and the electorate.

As our brief but colourful history as a nation has progressed, two basic principles have emerged that govern the relationship between the government, the parliament and the electorate. These principles are a responsible and representative parliamentary government. Responsibility and representation is what we have known for the life of this nation. We have a responsible cabinet. We have a representative parliament.

A responsible and representative parliament performs very important functions. Parliamentarians deliberate, investigate and legislate items that come under their purview. The upper and lower chambers that compose the Parliament of Canada share these roles. Parliamentarians deliberate. We look at issues and try to decide if these issues are worthy of debate, worthy of change or whether the issues raised are worth our attention at all. We use our collective judgment to decide what work gets done

Parliamentarians investigate. We have investigated many issues that relate to smoking. We investigate many issues that often result in the creation of laws. We legislate. We have been given the honour to create laws, to be the ones who make decisions that affect the welfare of all Canadians, our youth included.

Mr. Speaker, I am not here to tell you whether this bill or should not be passed. I am here simply to say to you that this bill deserves to be fully scrutinized by the traditional mechanisms of our parliamentary system.

I believe Bill S-13 deserves the attention and the process that it and many other bills in the history of this nation have received. Let us give this bill the attention it deserves and let the members of this Chamber do their jobs and decide whether it deserves second reading.

[Nelson Riis, NDP, Kamloops, BC]

Mr. Speaker, I want to expand on some of the comments made by my colleagues.

I think I have a possible solution to assist you in your decision and in a sense get you off the hot seat.

Obviously the other place is involved in this issue. It has dealt with it. It has passed it duly through the process.

Obviously the House of Commons now is captivated by this issue. The government certainly is interested in the issue but, most important, the people of Canada and the children of Canada are involved.

Notwithstanding the constitutional arguments, notwithstanding the procedural arguments, notwithstanding whether this is a tax or a levy or an impost, if there is a will to pass this legislation surely we can agree among ourselves today to just set this aside and the government can introduce a ways and means motion tomorrow morning. It will pass before Christmas if there is a will here on behalf of the people of Canada to do this.

Rather than perhaps go on for hours, if the will is here and I suspect from what I have heard that the people have spoken through their duly elected representatives in the House, we can actually have legislation before us in the morning and deal with this expeditiously and actually have the entire legislation passed and proclaimed before Christmas.

What a generous gift it would be for the Parliament of Canada to give the people of Canada a life saving gift for generations to come.

[The Speaker]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Yukon, the environment; the hon. member for Tobique—Mactaquac, Asia-Pacific economic co-operation summit.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Mr. Speaker, I would like to intervene on this point of order, but not to reiterate the excellent arguments of my colleague from St. Paul's.

I will focus on two very specific points. The first is the matter of the ways and means motion as it pertains to a tax rather than a levy. The second point concerns the criteria associated with the levy.

Today, Mr. Speaker, you will have to decide whether a levy or a tax is involved. When a bill proposes a levy and not a tax it is exempt from certain prerequisites. A ways and means motion must be concurred in before a bill imposing a tax on the public can be introduced. There is no such requirement for a bill proposing a levy.

It serves no purpose to repeat that a ways and means motion may be moved in the House only by a minister of the crown. According to the traditions in this House, a levy must meet three very specific criteria.

The first one is that the levy is imposed on the industry. The second one is to serve an industry purpose. The third one is that the funds from the levy never form any part of the government's revenue.

Mr. Speaker, yours is the role of judge. As you said earlier, you want our opinion. Other opinions, including legal ones, have been or will be submitted to you, no doubt. You yourself will also seek other opinions, I am sure.

I close on the comparison, which was used earlier by the government House leader, between Bill C-32 on copyright and Bill S-13 before us. Unlike the government leader, I see a lot of similarities between the two bills. Bill C-32, which includes the levy on blank cassettes, did not require a ways and means motion and royal assent, because it essentially involved a levy.

This bill must be passed and debated by this Parliament, which will judge it on its merits. I believe this bill meets all the criteria necessary to proceed.

With your permission, I would like to table in this House legal opinions to this effect, which I hope will help you in your consideration of the matter.

[The Speaker]

If the hon. member for Pierrefonds—Dollard wishes to table these legal opinions, I would ask him to have a page deliver them to me so I might read them.

[Greg Thompson, Progressive Conservative, Charlotte, NB]

Mr. Speaker, I want an idea of how much time I have because I want to go through some supreme court rulings in relation to the topic today. They are somewhat detailed and will take more than a minute or two of your indulgence.