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.
