BRANDON -- The Selinger government may win its court case against Brian Pallister's challenge of last year's PST increase, but they will not emerge as winners.
Last July, the Tories announced they would launch a legal challenge to the government's decision to increase Manitoba's provincial sales tax without first holding a provincewide referendum. They followed through on that promise in February, with the filing of a notice of application in the Court of Queen's Bench.
The application asked the court to strike down Bill 20, the legislation suspending the referendum law and imposed the PST, arguing it did not comply with the procedural requirements of the Balanced Budget, Fiscal Management and Taxpayer Accountability Act -- the law that requires a provincial referendum before imposing a PST increase.
The application further argued that amendments contained in Bill 20 "are invalid and infringe Section 2(b) and Section 7 of the Charter of Rights and Freedoms as they deprive Manitoba citizens of the right to due process and the ability to vote in a referendum... and to have their respective legislators vote separately on the abolishment of the referendum and the PST increase."
The case was heard on Wednesday by Mr. Justice Kenneth Hanssen. It will likely be several weeks before he renders his decision.
It may be unrealistic to expect a judge to overturn a law passed by a large majority of MLAs based upon a procedural technicality and/or the breach of a charter right no Canadian court has previously recognized, but the political dividends being earned by the Tories in this fight far outweigh the legal bills they are incurring.
By filing the legal challenge, they have managed to keep the PST issue alive and in the public eye for more than a year. Beyond that, they have forced Team Selinger to publicly articulate legal arguments that could come with a hefty political price tag.
In documents filed before Wednesday's hearing, lawyers for the government argued that "the legislature will ultimately be accountable to the people of Manitoba in the next provincial election. This is how a representative democracy functions. It would be a serious departure from the court's proper constitutional role in the Canadian democracy if it were to inject itself into the political and democratic process as the applicant now invites it to do."
In other words, our NDP government asserts it can end-run a long-standing referendum law whenever it feels like doing so and there is nothing a citizen, or even a judge, can do to stop them.
That may be a winning legal argument, but it is a lousy political strategy because it changes the narrative. The Tories can now argue this is no longer solely about the PST increase. It is about a government that arrogantly claims to be above the law and has the temerity to say so in open court.
The NDP's legal strategy reveals they regard referendum requirements as nothing more than political speed bumps. That is a dangerous position for them to take, given identically worded referendum laws purportedly protect Manitoba Hydro and MPI from being privatized.
The tactical flaw in their argument should be obvious. While the NDP constantly warns Manitobans the Tories have a hidden agenda to privatize Manitoba Hydro, it is the Tories who are fighting in court to maintain, if not strengthen, referendum rights that would make privatization far more difficult.
The irony should also be obvious. Prior to the PST increase, polls showed a majority of Manitobans supported a tax hike to address the infrastructure deficit. The plan had the support of the Manitoba Business Council and other business groups. The conditions for victory were there, but the NDP was too afraid to consult the same people who had elected them less than two years earlier.
The NDP has paid a steep political price for that decision, including a deep plunge in public opinion polls. A court judgment that affirms the Selinger government's right to trample Manitobans' referendum rights will not repair that damage.
On the contrary, it could make it worse.
Deveryn Ross is a political commentator living in Brandon