Winnipeg Free Press - PRINT EDITION

Joke's on those who thought referendum law had teeth

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BRANDON -- It is yet another reminder of how powerless Manitobans are to hold their government to account.

Last week, Court of Queen's Bench Judge Kenneth Hanssen rejected an application by the Progressive Conservative party and its leader, Brian Pallister, to strike down Bill 20, the Selinger government's legislation that imposed last year's PST increase and suspended the referendum requirement.

The Tories argued 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. They also claimed Bill 20 infringed the Charter of Rights and Freedoms because it deprived Manitobans of the right to vote in a referendum.

Few expected the court to overturn a law passed by a large majority of MLAs based upon a procedural technicality or the breach of an alleged charter right that no Canadian court has previously recognized, but the bases upon which Hanssen rejected the application have repercussions that extend beyond this case.

He concluded that "the doctrine of parliamentary sovereignty prevents a legislative body from binding future legislative bodies as to the substance of its future legislation... . This is precisely what the Progressive Conservative government was trying to do in 1995... . I am satisfied that to the extent (the balanced-budget law) purports to fetter the legislative power of the legislative assembly, it is legally ineffective and unenforceable."

As to the Tories' assertion Bill 20 violated the charter, he ruled that "there is no constitutional right to a referendum in Canada."

In plain language, Hanssen is saying our NDP government can raise our taxes after promising it wouldn't and then ignore a long-standing referendum law, and there is absolutely nothing a citizen, or even a judge, can do to stop it.

As sobering as that message is, there is an even more troubling aspect to Hanssen's judgment.

By declaring the referendum requirements in the balanced-budget law are "ineffective and unenforceable," he has implicitly signalled the referendum laws enacted by the Doer government to protect Manitoba Hydro and Manitoba Public Insurance from being privatized are also unenforceable, and always have been.

The same goes for the province's balanced-budget law because it seeks to prevent future governments from running deficits.

In short, the laws that Manitobans (perhaps including Pallister) thought protected them from tax increases, uncontrolled deficit spending and the privatization of important Crown corporations were never legally enforceable. It is a fact many of our lawmakers were probably aware of, but neglected to disclose when those laws were enacted.

It raises the question -- why would a government adopt laws it knows, or should know, are unenforceable? There are two answers.

First, all governments adopt laws that may ultimately be struck down by the courts. It is a risk governments run when attempting to craft legislation that grapples with difficult issues. The Harper government's proposed prostitution law, Bill C36, is one example.

Laws such as Manitoba's referendum and balanced-budget laws fall into a different category.

Both the Filmon and Doer governments were likely told by their lawyers that those laws would not be legally enforceable. They proceeded anyway because they believed the issues were important, knowing that even if the laws were not legally enforceable, they would still be politically enforceable.

Those governments sought to exert a form of moral and political suasion over the conduct of future governments, by ensuring any government that breached the laws would pay a painful political price for doing so.

Gary Doer was wise to avoid that risk throughout his tenure as premier, but Greg Selinger was less cautious. His party's steep slide in public opinion polls after the PST increase was announced was the consequence of that recklessness.

Compounding that risk is the Selinger government's willingness to boldly expose the referendum law as the legally impotent prop that it always was.

It is an action likely to offend those many Manitobans who had been led to believe the balanced budget and referendum laws actually meant something. They now realize the joke was on them.

Deveryn Ross is a political commentator living in Brandon.

Twitter -- @deverynross

Republished from the Winnipeg Free Press print edition July 25, 2014 $sourceSection0

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About Deveryn Ross

Deveryn Ross joined the Free Press as a political columnist in 2011. His columns also appear in the Westman Journal and other community newspapers throughout Western Canada. He has also served as a columnist for the Brandon Sun, Brandon Today and several rural Manitoba newspapers.

Born and raised in Brandon, where he still resides, Deveryn has been active in politics at all levels for more than four decades. He has worked in various roles on dozens of election campaigns in several provinces and has provided strategic advice to elected officials and candidates from all major parties.

Deveryn holds a Juris Doctor degree from Dalhousie University and Bachelor of Arts from Brandon University, where he was awarded the medal in political science.


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