Mr. Speaker, I rise to back up the arguments of my colleague from St. Paul's and all the other members who have spoken in favour of the recognition of Bill S-13 as valid to be introduced in the House.
It is clear among all of us that a tax is a charge on the people. We agree with that. If a tax is a charge on the people then it must be preceded by a ways and means motion. We all agree with that. A ways and means motion must be introduced by a minister of the crown. A tax bill can originate only in the House of Commons. In one way or another tax revenues will form part of the general revenues of the government.
A levy is a very different thing. A levy is imposed to serve a particular beneficial industry purpose. The funds from the levy never form part of the revenues of the government. We need to find out whether the levy imposed on the tobacco industry in this case is a charge on the people and forms part of the revenue of government. If such is not the case, if it is not a charge on the people generally and does not form part of a revenue of government, it is a case for saying Bill S-13 constitutes the introduction and imposition of a levy on a particular industry and is valid for introduction in the House.
The bill is very clear. My colleague from Haldimand—Norfolk—Brant quoted section 36, saying there is a distinct imposition on a particular industry.
I refer to a the ruling by the Speaker of the Senate:
I have two things to do here. I do not have authority on constitutional law but I can look at the bill and compare it to precedents to find out whether it is valid for introduction or not as a levy.
What is within my authority, however, is examination of the bill in order to assess what it declares itself to be. I accepted the plain and ordinary meaning of its words and studied them to see if all the clauses relevant to the issue of the levy were internally consistent. I then measured the levy described in the bill against the criteria Erskine May sets out at pages 730-737 for identifying levies that are exempt from financial procedures governing the imposition of taxes.
With respect to the matter of the plain language of the bill, it speaks in terms of a levy rather than a tax. This is evident from part II of the bill. It is also clear that the levy is imposed upon the tobacco industry alone.
Therefore it is not a charge on the people. It is a charge on the tobacco industry. He states further:
The purpose of the levy, as stated in the bill, is to meet an industry purpose beneficial to it, although this industry purpose also has a public benefit. Clause 3 states categorically that the purpose of the bill is:
... to enable and assist the Canadian tobacco industry to carry out its publicly-stated objective of reducing the use of tobacco products by young persons throughout Canada.
Consequently, with respect to the language of the bill I must accept that what is proposed is a levy, not a tax.
Then he goes on to compare it with Erskine May:
The first criterion is that the levy must be for industry purposes. The second is that the funds collected must not form any part of government revenue.
He concludes by comparing the provisions of Bill C-32:
There is further evidence that the levy [in Bill C-32] was not viewed as a tax. I say this because, so far as I have been able to determine, the bill was not preceded by a ways and means resolution, which would have been a prerequisite if the funds had been viewed as a tax.
I refer to section 35. I am not discussing the substance but just the case of proving that it is a levy. If part of the general revenue, the consolidated revenue of the government, it would have to come back to the consolidated revenue of the government. If a charge on the people, it would have to be part of government revenues and, if anything happened, come back to government revenues.
This creates a foundation and section 35 clearly establishes that if the foundation is wound up the revenues have to be transferred from the council of the foundation and therefore back to the tobacco industry.
The bill clearly identifies that the objective is to impose a levy on one particular industry just as was done with the blank tapes on Bill C-32. There is no difference at all. It is for the benefit of a particular purpose which is beneficial to the industry as a whole. The tobacco industry supports Bill S-13 by saying “We cannot do it ourselves, we are not credible, nobody will accept it from us. Therefore an arm's length foundation that keeps the revenue which it is totally in control of can do this on our behalf”.
What is the difference between this and Bill C-32? There is none at all.
My colleague from Pierrefonds—Dollard tabled two legal opinions by Michael Clegg and Mark Siegel, experts in the field.
They appeared before the Senate and they clearly established that in their minds it was a levy and not a tax.
There is a letter in the Ottawa Citizen today from one of our foremost lawyers, Lawrence Greenspon, and I would like to quote from it because I think it is very important at this time:
Canadian courts are used to dealing with this issue and have distinguished between these kinds of regulatory charges on the one hand, and taxes on the other. They are not the same thing.
The first legal requirement is that the levy be imposed on the industry for what is called an industry purpose. Here the aim is clear. The bill targets the tobacco manufacturers, collects the money from those manufacturers and then uses the money exclusively to direct information at a segment of the population affected by the products of those same manufacturers.
The second condition that must be satisfied is to ensure that none of the money collected ends up in the Consolidated Revenue Fund. The provisions of the bill ensure that if there is a surplus it goes back to its source, the tobacco manufacturers.
That is the case with this bill.
Mr. Greenspon also says “As a lawyer I am saddened by the prospect of legal interpretation being misused to overcome this life-saving effort”. Mr. Greenspon concludes that in his mind it is definitely a levy.
I appeal to you, Mr. Speaker, to recognize this as what it very clearly is. My colleagues, I would say, fully support the principle of this bill. I disagree with others who say they do not because I know that they do, and strongly do.
I feel that members feel duty bound to intervene on a question which is very germane to what we do here. I think it is very important that they did. I appreciate that they did. It will be your ruling, Mr. Speaker.
I notice that members opposite invoked section 53 of the Constitution Act. Members referred several times to the Constitution and I suggest that in Beauchesne's it is very clear that matters of constitutional law and matters of the law itself are not your prerequisite. I think this goes beyond the scope of what the Speaker should do.
I feel it is within your scope, Mr. Speaker, to look at this legislation which is expressed in very clear and plain language, which clearly identifies its purpose, its meaning and its objectives. Look at it and agree with us that there is no tax chargeable on the people, that there is no need for a ways and means motion, that it can be introduced in the other place, as has been done, that it is valid here and that we should deal with it.
I hope, Mr. Speaker, that is the way you will conclude your recommendations to us.