Winnipeg Free Press - PRINT EDITION

Leave taxation to politicians: province

Makes argument as Tory challenge of PST hike heard

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Butt out.

While not proper legalese, those two words summed up the provincial government's case in a court challenge launched by the Progressive Conservatives against the NDP's hiking of the provincial sales tax one year ago without a referendum.

The case, which was broadcast under a court pilot project, was heard Wednesday with Court of Queen's Bench Judge Kenneth Hanssen reserving his decision. "Obviously, it's going to take me a little while to deal with this," Hanssen said.

Government lawyer Jonathan Kroft argued Hanssen's task was relatively simple -- an unelected judge had no business second-guessing the decisions of an elected government.

"That's not our jobs in the courts," Kroft said. "That's the job across the street."

Kroft also said PC Leader Brian Pallister had no legal case against the Selinger government for hiking the PST by one point to eight per cent without having a referendum as outlined in the 1995 Taxpayer Protection Act. The act was brought in under the Tory government of Gary Filmon and partly based on a private member's bill tabled by Pallister, then an MLA, in 1993.

'The Supreme Court of Canada is very sensible as well as being completely authoritative on this point: There's no constitutional right to a referendum' -- Government lawyer Jonathan Kroft

"The Supreme Court of Canada is very sensible as well as being completely authoritative on this point: There's no constitutional right to a referendum," Kroft said.

He said the PCs' case was akin to the courts being invited to cross Broadway to the legislature and getting involved in a political debate that started April 17 last year when the NDP signalled it was hiking the PST.

Kroft told Hanssen as tempting as it might be, he should decline that invitation.

The PCs argue the NDP's tax hike robbed Manitobans of the right to vote on the tax increase, because the New Democrats, in a single piece of legislation, did away with the need for a referendum when they raised the tax.

"Why do it in one bill?" the PCs' lawyer, Robert Tapper, said in court. "Was it arrogance?"

Tapper argued that by nixing the referendum and boosting the tax in a single bill, the NDP violated the Charter of Rights and Freedoms and infringed on the rights of Manitobans, specifically the freedom of expression and liberty of assembly.

"Like the schoolyard bully taking his football home, it says simply, 'We do this because we can,' " Tapper said.

Kroft argued the government was completely within its authority to change the law the way it did.

"The court is being invited to tell the legislature what it could and couldn't talk about," he said. "That's a matter covered by parliamentary privilege. This court should not be going anywhere near that question."

He said as a result of the NDP doing it in one bill, the public actually got more of an opportunity to speak at extended committee meetings against the tax hike than they would have had the increase, and the axing of the referendum requirement, been done in "two pieces of paper."

He added 1995's Taxpayer Protection Act, when brought in by the Tories, needlessly bound the hands of a future government, one with a different political philosophy and one facing different economic times.

The Selinger government has said revenue from the PST increase will fix roads and highways and fund other infrastructure projects.

"We respect the system of justice in Manitoba and the right for people to use that to make their point," Selinger said, speaking from France where he is attending D-Day 70th anniversary events. "And we trust that the judgment will be one that is based on law and precedent. The most important thing is to recognize that we have a very strong plan for growing the economy in Manitoba based on a huge commitment to infrastructure and training of young people.

"And we don't want to see any infrastructure projects cancelled, particularly when we're putting in place projects that will protect communities from flooding and make sure that we can move the economy forward."

Pallister, who spent the entire day in court, has said if the Tories lose the case, they will appeal.

"It's pretty clear the government's arguments rest on the assumption that they have the right to take powers away from Manitobans, and our arguments rest of the assumption that Manitobans deserve to have those powers," he said.

 

-- with a file from Larry Kusch

bruce.owen@freepress.mb.ca

How would you rule if you were the judge hearing the Tories’ case against the NDP’s hiking of the PST without a referendum? Join the conversation in the comments below.

Republished from the Winnipeg Free Press print edition June 5, 2014 A6

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