Winnipeg Free Press - PRINT EDITION

PST court challenge was risky political ruse

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It is one thing to beat a horse to death. It is quite another thing to beat a dead horse. The people of Manitoba have been left in no doubt that the Progressive Conservative Opposition strongly opposed the NDP increase of one percentage point in the provincial sales tax. This increase in taxation Premier Greg Selinger during the election campaign had solemnly denied would take place has received more than its share of media attention.

The Tories, as was expected, strongly opposed the tax increase in the legislature, using every procedural device available to voice that opposition -- and then some. The legislature was kept in session for a prolonged period and the legislative committee was swamped with Progressive Conservative supporters. The PCs legitimately used their legislative presence to quite rightfully attack the government in an area where it was genuinely and properly vulnerable. We know the Tories opposed the tax hike and the Opposition may be compared to killing the horse, particularly if they promise to kill the tax if they are elected in the next provincial election. I am not certain they have made such a promise, but I assume from their vigorous opposition they would not keep the tax increase if they form the next provincial government.

While killing the horse is completely justified, the subsequent conduct, of going to court to seek a decision to invalidate the tax, is completely futile and probably counterproductive. The court case can surely be described as beating a dead horse. The case was always bound to be thrown out of court and Court of Queen's Bench Judge Kenneth Hanssen properly preserved the integrity of the legislative process by dismissing it last week. I do not intend to go into the legal arguments. Hanssen has always shown a political alertness. While strictly insulating himself from active political involvement, as befits his position as a judge, his only political activity I am aware of is his habit of privately predicting election results.

But aside from the legal arguments there is good political reason for politicians not to resort to the courts to challenge the legislature. It is an elected legislature that is the prerequisite of the democratic process. Appointed judges should not use their authority to challenge the laws enacted by our duly elected representatives.

In a federal system such as we have in Canada, by necessity, the courts have to make decisions as to whether or not Parliament or a provincial legislature has made laws that are not within their jurisdictional competence. But provided the law was within the legislative competence, no court has jurisdiction to interfere with laws passed by Parliament or a legislature. That was true, of course, until we got conned into passing the Charter of Rights and Freedoms, which opened wide new doors for the facilitation of judicial mischief.

In resorting to the courts, the Progressive Conservatives were walking headlong into a dangerous trap. They hope to be the government someday soon and will want to pass legislation to implement their policies. If their action against the NDP government had succeeded, they would have provided a precedent that could have been used against them. They were wrong to challenge the legislation in the courts. They were also politically wrong. The people of Manitoba are not fools. They can spot a political gimmick when they see one. In this case, all they see is an overzealous politician beating a dead horse.

Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.

Republished from the Winnipeg Free Press print edition July 22, 2014 A9

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