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.