Winnipeg Free Press - PRINT EDITION

Pallister's PST court challenge no stunt

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BRANDON -- Last July, Manitoba's Progressive Conservative Party announced it would launch a legal challenge to the Selinger government's decision to increase Manitoba's provincial sales tax without first holding a province-wide referendum. They followed through on that promise last week, with the filing of a notice of application in the Manitoba Court of Queen's Bench.

The move was immediately panned by NDP Finance Minister Jennifer Howard as "just another political stunt" and by provincial Liberal leader Rana Bokhari as "political posturing" and "a waste of tax dollars."

It is unlikely Howard and Bokhari read the court documents before making their comments. If they had, they would have realized the Tories' application goes far beyond a mere challenge of controversial legislation.

It asserts the existence of citizens' constitutional rights that could fundamentally alter the manner in which governments throughout Canada conduct the business of governing.

The application begins by asking the court to strike down Bill 20, the legislation suspended the referendum law and imposed the PST, based upon a persuasive argument that Bill 20 did not comply with the precise 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 then goes further, arguing 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 Tories' assertion Manitobans have a constitutionally protected "due process" right that limits the provincial government's ability to implement its agenda as it deems fit is a groundbreaking claim which, if accepted by the court, would have implications for every level of government in the nation.

While the scope of such a due process right could be limited to instances involving referenda laws, it could also imply a "duty to consult" analogous to that which currently applies to legislation affecting aboriginal Canadians.

The inclusion of such a novel argument in the fight against Bill 20 is no mistake. Senior Tory sources confirm it reflects the view of party leader Brian Pallister governments should not have unlimited power to do as they please between elections -- including the breaking of solemn campaign promises -- and citizens should not feel powerless to stop them from behaving improperly.

On a number of occasions, Pallister has spoken about his respect for a style of government known as "deliberative democracy," a consensus-based approach which requires political decisions be the product of ongoing discussion and debate among citizens.

Viewed from that perspective, the application filed by the Tories is more than a legal challenge to the PST hike. It is the public unveiling of the first plank of an campaign strategy that not only seeks to re-balance the relationship between Manitobans and their government, but intends to make our provincial government more accessible, transparent and accountable.

The PCs aren't promising to give power back to Manitobans. They are saying that our due-process rights have always existed, are constitutionally protected and cannot be taken away by government.

The fact the Manitoba branch of the Conservative Party is taking such a position is remarkable for two reasons. First, the party that is favoured to win the next provincial election is deliberately trying to limit its powers to govern, by giving Manitobans a permanent legal weapon to fight government misconduct.

Second, the approach is the exact opposite of Stephen Harper's style as prime minister. That sends a clear message to those who suggest or suspect that a Pallister government would be a carbon-copy of the Harper government.

The Tories' court application is no stunt. It is a brilliant tactical move that keeps the PST issue alive, puts Team Selinger in a no-win situation and allows Pallister to signal that he will be bringing big ideas to the table in the next election.

His opponents would be wise to craft a better response than they have to date.


Deveryn Ross is a political commentator living in Brandon.

Republished from the Winnipeg Free Press print edition February 27, 2014 A15

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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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