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.