House of Commons Hansard #68 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was tax.


Committees Of The House
Routine Proceedings

May 30th, 2001 / 3:10 p.m.


Caroline St-Hilaire Longueuil, QC

Mr. Speaker, for one minute, you did not understand anything. Imagine that for a whole life. Personally I find it harrowing. That is why my struggle for captioning remains so actual and crucial.

As I was saying in LSQ, May is Better Hearing Month. I take this opportunity to remind the House that over three million Canadians live with a hearing problem, 750,000 of them in Quebec alone.

This problem now affects one in ten individuals. Deafness is the handicap that affects the largest number of people and, what is more, it is invisible. We cannot remain unconcerned about that alarming fact.

More than ever we must become aware of this fact and take concrete actions we must not only express pious hopes but take concrete legislative actions.

Need I remind the House that television plays an essential role in the lives of a very large number of deaf and hearing impaired people, and for good reason: because some of them have no other means of communication not everyone can have a computer and access to Internet.

To deny them access to this source of information and entertainment could lead to isolation, not to mention all the various safety aspects.

Since these persons cannot hear the radio, television remains the only media of information in real time for them. Just think about weather warnings or disasters. Without captioning, these people will have no idea about what is going on. To learn about the events through the newspapers the next day would be too late in many instances and that could have serious consequences on their safety.

In Quebec, the deaf or the hearing impaired remember quite well the ice storm because they had no access whatsoever to real time information.

These are but a few examples to illustrate the very complex difference between those who are fortunate enough to hear properly and those who are not. I remain optimistic however and my goal is to obtain 100% captioning for television programs. Overall, I find the report of the Standing Joint Committee on Official Languages to be a good start.

I am very happy to see that the motion on captioning that I tabled in 1999, and which received unanimous consent of the House, is finally echoed within parliamentary committees. The analysis of the Standing Joint Committee on Official Languages and its recommendations for mandatory captioning of all debates in the House are a clear example of that.

However, it is only a start, only one tool among others to truly facilitate the integration of deaf or hearing impaired persons into our society.

I was also pleased to hear the last Speech from the Throne because the federal government promised to increase its support for the CBC/SRC in order to help that corporation better play its role as public broadcaster serving all Canadians.

That is the end of the good news because, despite this fine inclusive speech, I still wonder about the priority given to those three million people with a hearing disability.

I am also concerned about the deaf and hearing impaired francophones who have access to a meagre 38% of the French network's programming of Radio-Canada, while the figure is 90% for the English network. These statistics are disturbing, to say the least.

It is totally inconceivable that, in a country that brags about respecting the two official languages, French closed captioning lags so far behind closed captioned programming provided in English.

I believe there is only one way to solve this sensitive issue of access to communications for those three million people: legislation to require broadcasters to provide closed captioning for their video programming in both official languages and to give the same rights to hearing impaired people. The federal government has full leeway to legislate quickly on this.

I remind the House that I introduced a bill, Bill C-306, which would amend the Broadcasting Act to require every broadcaster to provide closed captioning for its video programming. Unfortunately, my bill is still not on the House's priority list.

Since this is hearing and speech month, I challenge the government to show its true intentions regarding the priority it intends to give to deaf and hearing impaired people. To that end, I offer the government the opportunity to take over my bill so that members of parliament can debate it as quickly as possible.

For those very legitimate reasons, and I am sure members will agree, I ask unanimous consent of the House so that the second report of the Standing Joint Committee on Official Languages be concurred in now. In conclusion, I hope that the federal government will understand that closed captioning allows deaf and hearing impaired people to read what we hear.

Committees Of The House
Routine Proceedings

3:15 p.m.

The Speaker

Is the House ready for the question?

Committees Of The House
Routine Proceedings

3:15 p.m.

Some hon. members


Committees Of The House
Routine Proceedings

3:15 p.m.

The Speaker

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Committees Of The House
Routine Proceedings

3:15 p.m.

Some hon. members


(Motion agreed to)

Points Of Order
Routine Proceedings

3:15 p.m.



Don Boudria Leader of the Government in the House of Commons

Mr. Speaker, I rise on a point of order. Moments ago a bill was introduced, Bill S-15. I take this occasion to indicate to the House that it is my belief that the bill cannot proceed to the next reading because it is out of order.

Bill S-15, which was just introduced in the House, creates an independent foundation to provide funding for programs to prevent the use of tobacco products by young people. It is obviously a very laudable initiative.

The funds would come from a tax on tobacco products. The senator who introduced the bill expects that such a tax will bring in $360 million each year to fund the foundation.

As members know, section 53 of the Constitution Act, 1867, states:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

Beauchesne's states:

A Ways and Means motion is a necessary preliminary to the imposition of a new tax, the continuation of an expiring tax, an increase in the rate of an existing tax, or an extension of the incidence of a tax so as to include persons not already payers.

Whether we are talking about imposing a new tax, continuing an expiring tax, increasing a tax or extending the incidence of a tax, a ways and means motion is necessary. Beauchesne's also states:

Only a Minister of the Crown can move a motion to impose a new tax.

Bill S-15 is essentially the same as a bill tabled in the first session of the 36th parliament, Bill S-13. The principal differences between Bill S-13 and Bill S-15 are a detailed preamble and the addition of part III which sets out what are claimed to be the bill's benefits to the industry.

However the new bill is the same in purpose and operation as was Bill S-13. The main purpose of Bill S-15 remains: to prevent the use of tobacco products by young people. Its mechanics to implement that purpose are completely identical. I therefore suggest that the same treatment be reserved for this bill as for the prior one. The taxation powers of Bill S-15 of $360 million per year are increased fivefold over Bill S-13, which would have raised $70 million annually.

Mr. Speaker, your predecessor, Speaker Parent, concluded that Bill S-13 constituted a tax bill and as such constitutionally and procedurally could be initiated only in the House of Commons and only after the House had concurred in a ways and means motion tabled by a minister of the crown. The bill was therefore ruled not to be properly before the House.

I submit that the ruling on Bill S-13 applies to Bill S-15. As I have indicated, the two bills are in essence the same in purpose and operation. Like Bill S-13, Bill S-15 must be considered a taxation measure which should have been initiated and could only be initiated in the House and not the Senate after concurrence in a ways and means motion proposed by a minister of the crown.

The government and the House recently took action to address tobacco use, and in particular smoking by young Canadians, by passing Bill C-26, the tobacco tax amendment bill. I will quote a speech made in the other place by Senator John Bryden who noted that Bill C-26 and Bill S-15 both claim to reduce tobacco consumption to meet national health objectives. Senator Bryden said:

I have much difficulty making the difference between Bill S-15, which will charge $1.75 per carton, and the bill that was introduced from the other place today, which will charge $2 per carton. One is called an excise tax; the other one is called a levy.

Bill C-26 was introduced in the House after concurrence in a ways and means motion which was introduced by a minister of the crown.

I submit to you, Mr. Speaker, that although Bill S-15 has the laudable objective of reducing smoking by young Canadians, it is 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 which furthermore can only be proposed by a minister of the crown. The House did almost the same thing by introducing Bill C-26 which was preceded by a motion of ways and means that was concurred in prior to the bill's introduction.

I therefore submit that the bill cannot be introduced in the House. Now that the member has gone through the process of introducing it, it is not properly before the House, to use the language your predecessor used, Mr. Speaker. Therefore I ask the Chair to rule that the bill is out of order and not properly before the House.

Points Of Order
Routine Proceedings

3:20 p.m.

Canadian Alliance

John Reynolds West Vancouver—Sunshine Coast, BC

Mr. Speaker, I rise on a point of order to ask for your indulgence. As official opposition we did not have notice that the bill would be introduced and discussed today. I would like some time to prepare an answer to what we have heard from the government House leader so that we may represent another point of view on the issue before you decide whether or not the bill is in order.

Points Of Order
Routine Proceedings

3:20 p.m.

The Speaker

I will keep the member's comments in mind but there are other members who would like to make an intervention. I am prepared to hear them at this time.

Points Of Order
Routine Proceedings

3:20 p.m.


Réal Ménard Hochelaga—Maisonneuve, QC

Mr. Speaker, I just want to remind the Chair that, notwithstanding the ruling it will make concerning the admissibility of the bill, the tobacco industry is in favour of this bill, and so are the health groups fighting against smoking.

In our mind, this is not a tax. We went through the same thing with the video industry, where a levy was imposed.

In common case law, a levy is a measure applying only to a specific industry and aiming at a very specific goal for the same industry.

The levy mentioned in the bill would be imposed on the tobacco industry. The industry wants this levy. Organizations trying to dissuade people from smoking agree with such a levy. Mr. Speaker, we respectfully submit that this is not a tax, but rather a voluntary levy. Therefore, the bill is in order.

The best thing we can do as parliamentarians is to refer the bill to committee and allow it to go through the various stages and then come back to the House so we can have a debate over the substance of the bill.

Points Of Order
Routine Proceedings

3:25 p.m.

Progressive Conservative

André Bachand Richmond—Arthabaska, QC

Mr. Speaker, I will be brief.

First, I am not as knowledgeable as you are, Mr. Speaker, and I would like to ask you a question. At what point can the Chair decide that a bill is in order?

When the bill was introduced earlier during routine proceedings, nobody rose. We saw the very professional and credible look of the Speaker. He looked to see if the government House leader would rise then to debate the admissibility of the bill before its introduction.

The government House leader did not rise at that time. He was busy, and I understand that. He rose a few moments ago, as it is his prerogative to rise at any time on a point of order.

Here is my question for the Chair: since the bill has already been introduced, at what point can the Chair decide to refuse or accept a bill?

I am not as knowledgeable as you are with regard to procedural matters, but I would say that it should be before the introduction of the bill. It seems that the bill has gone through an important step and, with all due respect, I would like the Chair to rule on that issue.

Second, my colleague, the House leader of the Progressive Conservative Party, the member for Pictou—Antigonish—Guysborough, is very much interested in everything that goes on in the House with regard to procedure, just like you are. We agree with the House leader of the official opposition and would ask the following of the Chair. We would like to have a little more time to prepare our response to the point of order raised by the government House leader.

This is an important bill. My colleague from the Bloc Quebecois mentioned that there is practically unanimous support for Bill S-15. Yet, we are caught up in procedural wrangling between the two Houses. We would like to have time to react, knowing full well that the majority of members in this House have received dozens and hundreds of letters from people from their ridings asking them to support Bill S-15.

A decision has to be made which, we believe, has a historical value with regard to parliamentary rules, that is, whether or not the bill is in order.

With all due respect, I am asking the Chair to give us a little more time, at least 24 hours, to come up with the arguments that could help it make an informed decision for both Houses.

Points Of Order
Routine Proceedings

3:25 p.m.

The Speaker

I appreciate the comments made by the hon. member for Richmond—Arthabaska. I can tell the House that the admissibility of a bill is an issue that can always be addressed in the House. A member can challenge the admissibility of a bill at any time before third reading.

I think the government House leader is right to raise the issue at this time. I have already indicated to the official opposition House leader that I will hear more on this later on.

Points Of Order
Routine Proceedings

3:25 p.m.


Judy Wasylycia-Leis Winnipeg North Centre, MB

Mr. Speaker, based on your comments I would like to put on record some of our thoughts with respect to the point of order raised by the government House leader. I am certainly prepared to provide serious input into the matter.

I am pleased to participate in what I consider to be a very serious discussion on whether Bill S-15 is in order. The government House leader has suggested that you, Mr. Speaker, should not allow Bill S-15 to proceed further because it is, in his view, and I assume the government's view, in all important aspects, a public tax measure. As such, he has argued that it should not be allowed in the House because it originates in the Senate and is missing the required warrant.

Members who spoke before me have put forward some compelling arguments why first reading of Bill S-15 would be in order without a royal recommendation.

Mr. Speaker, you will recall, and the government House leader referenced this in his remarks, that a similar debate arose in parliament on November 18, 1998, with respect to Bill S-13 which was the forerunner to Bill S-15. At that time I suggested we were dealing with a grey area in terms of procedures and constitutional and legal issues around a bill of this nature coming from the Senate.

Speaker Parent at that time ruled on the point of order on December 2, 1998 and stated:

The question that I must consider in relation to Bill S-13, that is whether or not the charge imposed by the bill is a tax, relates to the procedural rules and practices of this House as well as to the time honoured privilege of this House in respect of taxation measures.

Speaker Parent went on to give a very lengthy elaboration of the issues involved and made a very definitive conclusion indicating that he believed the point of order was in line and would be accepted. He said very clearly that he felt the bill included a tax measure that, because of its origins in the Senate and without royal recommendation, was not allowed for debate in the House.

Speaker Parent went on to state:

I am forced to conclude that the charge imposed by Bill S-13 is directed not toward any benefit to the tobacco industry but to a matter of public policy, that is, the health of young Canadians, a laudable purpose without doubt.

Simply put, any bill imposing a tax must originate in the House of Commons and must be preceded by a ways and means motion. Since Bill S-13 proposes a tax, did not originate in the House of Commons and thus was not preceded by a ways and means motion, I therefore find that it is not properly before the House.

I want to say this afternoon that since Speaker Parent's ruling and since the time that we discussed Bill S-13, or at least discussed whether or not it should be permitted for debate in the Chamber, the bill has been significantly redrafted. There are some very significant changes to Bill S-13 as now outlined in Bill S-15.

The first change is that a detailed preamble has been added to the bill that sets out the facts that define the problem of youth smoking.

The second change is that an entirely new part has been added to the bill which lists the number of benefits to the tobacco industry. The sponsor of the bill has indicated that one of the most important benefits is that the tobacco industry would be seen to be involved in an initiative dealing with the problem of smoking.

Mr. Speaker, I would argue before you today that given those changes we are back to dealing with a grey area in our House procedures and that you are now faced with a very new challenge in ruling on this point of order.

I will try to make the case that Bill S-15 ought to be pursued in the Chamber and that the House of Commons needs to debate the merits of this legislative initiative.

I base this argumentation on several factors. First, I believe that Bill S-15 is a serious attempt to address a critical problem in our society today, that being the high incidence of smoking, particularly among young people. The sponsors of the bill have been vigilant in their pursuit of changes in this regard and in their attempts to provide a reasoned public policy response dealing with a serious problem.

Mr. Speaker, if your rulings were based simply on dogged determination then you would have no problem ruling on this one in a flash, but obviously such argumentation does not factor in. What is relevant though is whether Bill S-15 is in the public interest, whether or not it is a public bill.

Bill S-15, as has been said, seeks to create a public agency and proposes collecting dollars from rich tobacco companies to spend it on community measures which are supported by a host of public agencies.

Evidence of the bill being in the public interest has been brought forward to all of us in the House by the number of letters, faxes and phone calls that we have received from individuals and organizations in our own constituencies and from across Canada. I have personally received dozens of letters and faxes from constituents and other Canadians in support of this initiative.

This is not to say that from a procedural point of view this initiative is necessarily a public bill. If one were debating the merits of the bill, which obviously we are not doing today and not able to do according to the rules of the House, we would expect to hear concerns from members in my caucus about the perception that the bill caters to the needs of the tobacco industry. We would also point to evidence that the bill is in the industry's interest based upon the amount of money and energy being spent by tobacco companies to support the legislation. We would also talk about the campaigns against youth smoking being run by tobacco companies in the United States and Europe which are very similar to those that Bill S-15 proposes to fund.

The point of saying this is not to debate the merits of the bill but to highlight a question that you, Mr. Speaker, must address, and that is whether this is an industry bill that benefits the public or whether it is a public bill that benefits the industry itself. Whether or not we like the changes in the bill, the fact is that you are left with the fundamental question about the nature of the bill. As it has been changed from Bill S-13 to Bill S-15, it can now be argued that the financial implications of the bill constitute a levy and not a tax.

Mr. Speaker, I would suggest that your task is to look at the very fundamental question of whether the bill is in the public interest. Your task is to look at whether the bill is a public bill benefiting not only the industry but other broader objectives in our society today or whether it is an industry bill benefiting the citizens of the country and being done in the interest of good public policy.

Speaker Parent's ruling in December 1998 clearly stated that Bill S-13, at that time, was dealing with a public policy matter and that the money being generated through the provisions offered in the bill constituted a tax.

The bill has now been fundamentally changed. It is a bill that is much more clear about benefits to the tobacco industry. We are talking more specifically about a levy as opposed to a tax. I think that is something you, Mr. Speaker, must seriously consider.

Our party certainly has major concerns about any attempt to cater to the tobacco industry and to support it in its efforts to win public support. However, the real question at hand is whether or not this initiative should be debated in the House and on what basis should a bill from the Senate be allowed into this Chamber.

I would be remiss if I did not point out in my argumentation that the government seems to want it both ways when it comes to using the Senate in terms of the whole legislative process. As I said in November 1998, and I am now more firm in my beliefs than ever in this regard, it is curious that the government, in rising on this point of order, actually expressed concerns about the democratic right of the elected House of Commons versus the rights of the unelected Senate. Certainly it is causing us some concern because we know that this is a government that has resurrected the undemocratic practice of routinely introducing government bills in the Senate before doing so in the House, something which the New Democratic Party has vigorously protested.

Since we are dealing with a new bill that has changed substantially from Bill S-13, the ruling by former Speaker Parent may no longer apply to the situation at hand and therefore you, Mr. Speaker, must revisit this situation and look for precedence in order to make a determination based on these new factors.

I would suggest that we are again in a very grey area in terms of whether the bill is eligible for debate in the House. On that basis and without quoting, I would refer you to some of the references I made in the House in November 1998. I cited references in Erskine May, 21st edition, at page 716 and Beauchesne's at page 97, citation 324. Further, I made reference to Bourinot's two principles outlined on page 491 and other citations which can be found in my speech at that time.

It would be in the interest of the House and of all Canadians that we have a debate on the ideas being proposed in Bill S-15. We are all concerned about smoking and how our young people are being addicted to cigarettes at an early age. We want to do everything in our power to correct that situation. We need to look at the circumstances surrounding Bill S-15 and the history of tobacco legislation. We must consider the public interest and the health of children in these deliberations. Mr. Speaker, I recommend this position to you.

Points Of Order
Routine Proceedings

3:40 p.m.


Clifford Lincoln Lac-Saint-Louis, QC

Mr. Speaker, I am pleased to comment on Bill S-15, which is a redraft of Bill S-13 that was ruled out of order by your predecessor. Bill S-13 was followed by Bill S-20, which was quite similar to Bill S-15 but died on the order paper before the election.

Bill S-15 would incorporate a foundation that will be working at arm's length from the government, one that will be funded by money that will not come from the government and not go into the consolidated fund.

On the face of it and under its terms, the bill is in the interest of the industry that is making the commitment to ensure that people who take up smoking are of legal age.

The third goal of this bill is to provide the foundation with $360 million to carry out its activities.

Is it a tax or is it a levy? A tax bill originates only in the House of Commons and is preceded by a ways and means motion. Only a minister can move such a motion. We agree with the House leader on this.

Levies, being much rarer, are recognized by the U.K., by Australia and by ourselves. In Canada the levy must satisfy two conditions: it must be imposed on the industry involved and it must serve a beneficial industry purpose. In the British practice there is one additional condition, that is, the levy must not form part of the government revenue. Bill S-15 not only meets the two Canadian conditions, that a levy is imposed on the industry and that it serves a beneficial purpose to the industry, but it even meets the third criteria, a U.K. one, that the revenues will not form part of the consolidated revenues of the government.

There are many previous bills in our own history that have been adopted without a ways and means motion. In the copyright amendment act of 1997, which your predecessor, Mr. Speaker, referred to in his judgment and which was a levy on blank tapes in favour of performers and recording artists, there was no ways and means motion and it was seen as a levy. Again, in the Canada Shipping Act of 1987 there was no ways and means motion. It was a levy against shipowners to deal with oil spills caused by tankers and other ships. As well, in regard to the Canada Petroleum Resources Act in 1985 there was no ways and means motion. There, owners would pay into an environmental studies research fund. In the British house, Erskine May cites 13 precedents of levies for industry purposes between 1917 and 1994 that did not require ways and means resolutions.

The previous ruling said it could not be a levy for an industry purpose because it would reduce industries' future markets. I refer to the House leader who said Bill S-15 is exactly the same as Bill S-13 except that a preamble has been added in part III. Surely that is a significant addition. The preamble in part III is not that same as that in Bill S-13. The preamble quite clearly sets out the facts defining the problem of youth smoking and the publicly stated objective of the tobacco industry to stop youth smoking because it is not in its favour to promote illegal smoking by people not entitled to do it. There is an entirely new part added to Bill S-15, which lists the benefits to the tobacco industry.

This is a procedural question which we must decide. We must decide whether the bill on its face 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 the industry's objective. Inquiring beyond the face of the bill and questioning its express provisions goes well beyond the realm of procedure and enters into the area of law. I respectfully suggest that the Speaker is exceeding his proper jurisdiction if he addresses legal questions in the substance of the bill.

The coincidental fact that youth smoking reduction also happens to be a public policy objective in no way interferes with the procedural acceptability of the bill. There is nothing in the precedents, Canadian or U.K., that prevents the basic industry purpose from coinciding with a public policy objective. As a procedural matter, the Speaker's responsibility is limited to determining whether or not the bill meets the two criteria set in Canada for a levy as outlined by authorities such as Erskine May. I suggest that in arriving at this determination we should not go beyond the express provisions of the bill, leaving the substance of the bill for the House itself to decide.

Not all of the tobacco industry is in favour of the bill, but 80% of it is, and the bill meets the criteria of a levy. In the case of the copyright law where blank tapes were instituted through a levy that went to artists and recording artists, it was also opposed by a lot of the recording media associations.

The minimum requirement in the criteria is that the levy must provide a benefit to an industry. There are no provisions or precedents that beneficiaries must be one specified group or another. The fund is not used to finance activities except activities that are strictly within the purview of the bill itself.

Before now, there were flaws. There was an objection as to where the funds would go if tomorrow the foundation ceased to exist. Would they have to go back to the consolidated revenue fund? So another clause, subclause 33(3), has been added, which states clearly that in the case of the foundation ceasing to exist the funds will be returned to the council for the tobacco industry, therefore the tobacco industry itself.

There has also been the argument that if we produce the bill in the House of Commons then it would open the floodgates to such bills. I would point out that since 1917 British practice has produced only 13 such bills involving levies.

It was interesting when, in the first instance of Bill S-13, when Bill S-20 was crafted, Senator Kenny, who was the sponsor of the bill, asked me to consult with the authorities of the House. I went to see the clerk of the House, then Mr. Marleau. Mr. Marleau referred me to the senior legal officer, Mr. Walsh. Mr. Walsh commissioned through the funds of the House of Commons a legal opinion from Mr. Michael Clegg.

The legal opinion from Mr. Michael Clegg is clear. He says that in his opinion it is not a tax but a levy. He also says that on the face of the bill and its express conditions we have to give the benefit of the doubt to the bill being a levy. This opinion was confirmed by several experts: Mr. David Gussow, a long serving procedural adviser to the House of Commons itself; Mr. Mark Siegel, a tax specialist counsel at Gowling in Ottawa; Mr. Joseph Magnet, a constitutional expert from the faculty of law of the University of Ottawa; and Mr. Raymond Du Plessis, Q.C.

It is interesting to hear what Mr. Michael Clegg said:

It is one of the basic canons of the construction of statutes that where there are clear and direct words in a statute, they should be interpreted literally unless they result in absurdity, illegality or impossibility.

That is not the case here.

He says further:

Where there are two possible approaches to the interpretation of a bill, it should be given the meaning that follows its literal and specific provisions.

May I submit that the argument here should not be the objective or part of the process or to surmise as to the moral or ethical reasons for the tobacco industry to set this up, but really it should be whether or not the bill institutes through its wording a levy.

I should explain my own position. I am not a defender of the tobacco industry, very far from it. My first act as environment minister of Quebec was to produce a bill for the protection of non-smokers. It was the first such bill in Canada.

However, what I think we need here is the decision of a right to debate this bill here and not use some sort of obtuse procedural excuse not to debate it here. Is a foundation created by an industry under suspicion because it carries out objectives that are completely different from those of the industry itself?

I could give the examples of the Rockefeller Foundation, which was built on big oil, or the Ford Foundation, which was built on car revenues. These foundations create all kinds of programs that are beneficial to others.

What would happen, for instance, if a big TV empire like Sony created a foundation separate from itself through levies, whereby it would provide education for banning TV addiction in young people? Would that be illegal or unfounded? It is perfectly acceptable that it would be so, that an industry could create a foundation that would serve a purpose which on the face of it might seem contradictory.

We have done a lot of research on this issue. Our research and the five or six legal opinions by leading experts show clearly that the bill represents a levy and not a tax, based on the wording of it. This is what we must be seized with rather than the substance of it or the moral or ethical considerations of why the foundation is being created. On the face of it we must accept this bill as debatable, as imposing a levy, and therefore not meeting the criteria for a ways and means motion.

We have put a lot of research into this. I would like to offer this book to you, Mr. Speaker, if you wish to accept it, so that you can find out what our case is built upon. I believe that upon reading it you will come to the conclusion that we are imposing a levy for an industry purpose and that the bill does not need a ways and means motion. It should be debatable in the House. I hope we can proceed to second reading stage and a debate in the House.

Points Of Order
Routine Proceedings

3:55 p.m.


Charles Caccia Davenport, ON

Mr. Speaker, very briefly I will attempt to submit for your consideration a few thoughts in support of the admissibility of Bill S-15 and which would in essence answer two questions.

The first question is this: is the bill a tax? I submit to you, Mr. Speaker, that Bill S-15 does not require royal recommendation because it does not appropriate public money. Bill S-15 does not appropriate public funds, there is no authorization of any kind for the expenditure of money from the consolidated revenue fund, and all moneys are spent by the proposed foundation. Moneys are raised through a levy imposed on the tobacco industry and, I understand, through gifts and grants.

Second, the moneys are collected by the proposed foundation and placed in its own account and distributed by the foundation alone. There is no government involvement in the process.

Third, specific clauses of the bill expressly state that the foundation is not an agent of the government and that its funds are not public funds.

Fourth, on dissolution any surplus of funds is returned to the tobacco industry as identified in subclause 33(3), as was indicated earlier by my colleague.

Fifth, even the annual audits of the foundation's accounts by the Auditor General of Canada must be paid for by the foundation itself. The money does not come from the consolidated revenue funds.

The second question that arises in this debate is whether the bill is the same as Bill S-20. As other colleagues have already identified, the answer is in the negative. First, there is a comprehensive preamble that has been added to this bill. Second, there is a refinement to the purpose clause, namely clause 3. Finally, there is the addition of part III, namely clause 34, which spells out the industry benefits.

Finally, it is worth quoting the opinion expressed by Professor Magnet of the Law Faculty of the University of Ottawa, which has already been mentioned very briefly. I will quote from his letter to Mark Audcent, the law clerk in the other chamber. In a 16 page long overview, he concluded:

This means that the levy in the Draft Bill is not a tax in the constitutional sense; it is a regulatory charge adhesive to a regulatory scheme that provides benefits to the industry by ameliorating a problem that the industry caused, for which it is blamed by the public and which it wishes to address. Because the levy, in my opinion, is a “regulatory charge” and not a “tax” in the constitutional sense, it is not subject to the discipline of sections 53 and 54 of the Constitution Act, 1867, as interpreted by the courts.

In the result, in my opinion, there is no constitutional impediment to the introduction of the Draft Bill to Parliament first in the Senate Chamber.

I submit these observations, Mr. Speaker, for your consideration, and I thank you for your attention.

Points Of Order
Routine Proceedings

4 p.m.

The Speaker

We seem to be getting a bit repetitious in the arguments on this point, so I am prepared to hear a bit more. However, I urge hon. members who want to make interventions to deal with some new point that we have not heard raised in the submissions by others. The Chair does not need to hear umpteen submissions on the same point.