OPEN LETTER TO HER EXCELLENCY THE RIGHT HONOURABLE MICHAELLE JEAN, GOVERNOR GENERAL OF CANADA

Dec 3, 2009 Letters

OPEN LETTER TO HER EXCELLENCY THE RIGHT HONOURABLE MICHAELLE JEAN, GOVERNOR GENERAL OF CANADA,
IN RIGHT OF HER MAJESTY QUEEN ELIZABETH II, SOVEREIGN OF CANADA

FROM: William Vander Zalm, former Premier of British Columbia

RE: Constitutionality of Federal Government proposal to create a harmonized sales tax in BC.

December 3, 2009

Your Excellency,

I write to you regarding an issue of great urgency and concern to myself and the millions of other British Columbians for whom I speak.

The issue is with respect to the British Columbia Government’s plan to accede its exclusive legal authority regarding direct taxation within the Province of British Columbia to the raising of revenue for provincial purposes, to the Federal Government.

Specifically, I refer to their plan to combine the Provincial Sales Tax (PST) with the federal Goods and Services Tax (GST) to create a “harmonized sales tax” (HST) to be levied, set and collected by the Federal Government on behalf of British Columbia.

Section 91 and 92 of The Constitution Act of 1867 clearly enumerates the powers of both the federal and the provincial governments in Canada. Section 92, paragraph 2 states:
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

We understand this to mean that only the Province of BC is empowered by the Constitution of Canada to levy, set and collect direct sales taxes within the Province, exclusive of the Federal Government.

This exclusive right is held in trust by the Government of British Columbia on behalf of the people of British Columbia, and cannot be assigned, delegated or relinquished without a Constitutional amendment.

The HST, as proposed by the BC and Federal Governments, unilaterally transfers BC’s exclusive lawmaking authority for direct taxation within the Province of BC for provincial purposes, to the Federal Government via a Federal Act, subverting the Constitution and the authority of the BC Legislature.

The Government of BC has stated that the HST Agreement signed by the Finance Ministers of BC and Canada will not be ratified by the BC Legislature. Since the Finance Minister of BC does not have the authority to pass legislation in BC unilaterally, the Agreement can have no force and effect in BC law.

Only a Provincial Act can change, remove or transfer BC’s power governing the collection of direct taxation in BC for provincial purposes, and only with a Constitutional amendment.

We believe the HST Agreement and the resulting Federal Government legislation directly contravenes Section 92, paragraph 2 of the Constitution Act 1867, and is therefore unconstitutional and illegal.

We believe it is a clear violation of the Constitutional limits, obligations and duties of the Provincial Government toward its citizens, and must not be allowed to proceed.
We therefore ask that you withhold Royal Ascent for this Bill when it comes to your desk for signature.

We ask that you, on behalf of the citizens of BC and Canada, refer these very serious concerns to her Majesty, Queen Elizabeth II, for her legal and Constitutional determination, and for the protection of her subjects in BC from this apparent usurpation of their Constitutional rights.

We ask that you do all in your power to prevent the Governments of BC and Canada from proceeding to enact the HST until such time as these issues can be satisfactorily resolved, to ensure both Governments are forced to comply with their Constitutional obligations and limitations.

As Governor General, you have sworn to uphold and defend the Constitution of Canada on behalf of the citizens of Canada and British Columbia. The profound implications and urgent nature of this situation require that you act now to protect the people of BC from this egregious planned violation of their rights and entitlement according to our Constitution.

We thank you for considering our request and await your reply forthwith, as time is of the essence if this potential violation of the Constitution is to be prevented.

Sincerely,

William Vander Zalm
Former Premier of British Columbia

cc:
Honourable Stephen L. Point, Lieutenant Governor of British Columbia
Right Honourable Stephen Harper, Prime Minister of Canada
Honourable James Flaherty, Finance Minister of Canada
Honourable Gordon Campbell, Premier of British Columbia
Honourable Colin Hansen, Finance Minister of British Columbia
Honourable Carole James, Leader of the Official Opposition of BC
Honourable Michael Ignatieff, Leader of the Opposition, Canada
Honourable Jack Layton, Leader of the NDP
Honourable Gilles Duceppe, Leader of the Bloc Quebecois

Her Majesty Queen Elizabeth II
Buckingham Palace
London, England SW1A 1AA

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PRESS RELEASE: VANDER ZALM APPEALS TO GOVERNOR GENERAL TO STOP HST FROM PROCEEDING

Dec 3, 2009 Press Release

FOR IMMEDIATE RELEASE

December 3, 2009

VANDER ZALM APPEALS TO GOVERNOR GENERAL TO STOP HST FROM PROCEEDING

Says Legislation Handing Control of Direct Taxation in BC to Federal Government is Unconstitutional

Delta, BC – Fight HST Leader and former BC Premier, Bill Vander Zalm, has issued a letter to the Governor General of Canada, the Rt. Honourable Michaelle Jean, asking her to withhold Royal Assent for the HST legislation when it comes to her desk.

Vander Zalm has appealed to the Governor General to first refer the federal HST Legislation to Queen Elizabeth II for a constitutional determination on the legality of the Federal Government unilaterally removing BC’s constitutionally “exclusive” taxation authority over BC sales taxes without a Constitutional amendment and subsequent approval by the BC Legislature.

Vander Zalm says he believes both the province and Ottawa are acting outside the scope of their powers.  “Section 92 of the Constitution Act 1867 clearly stipulates that only the provincial legislatures have the jurisdiction to make laws concerning the raising of a revenue via direct taxation for provincial purposes in Canada, exclusive of the Federal Government.”

“If the Constitution spells this out, there is a reason for it. It is there to make clear what the powers of the provinces are versus the federal government. Since any government is only a temporary holder of authority under our Constitution, we believe that authority is not transferable without a Constitutional amendment followed by legislative approval by the BC Legislature.”

In the case of the HST, that power will be transferred by a unilateral Act of Parliament, and will not be debated, voted on, or ratified by the BC Legislature.

Vander Zalm says that the powers of BC are not like the exclusive ownership of a right or property of an individual. He says they are held in trust for the people of BC and for successive governments who will come after the current office holders.

Vander Zalm says that if BC’s powers are transferable without Legislative or Constitutional approval, then they are not “exclusive” as the Constitution stipulates, and it means everything is up for grabs. He says it would mean the Feds could negotiate harmonization of income taxes, resource ownership, provincial crown land and other provincial powers in an endless list.

“All it would take, according to Gordon Campbell and Stephen Harper, is a poorly worded side deal, drafted by power hungry bureaucrats, and signed by our Finance Minister, to forever remove the powers of our province.”

“It is unbelievable that Gordon Campbell and Colin Hansen think they can make law in BC without Legislative approval. Campbell has become a total dictator!” Vander Zalm charged.

“We can’t believe that is the intention of our Constitution, so we have asked the Governor General to refer the matter to the Queen, as Sovereign of Canada, for her determination.”

Vander Zalm says he and his umbrella group, Fight HST eagerly await the Governor General’s response so that British Columbians can be certain that what has been proposed is legal. If not, he says, the governments of BC and Canada will be forced to tear up the HST Agreement.

Tags: act of parliament, bc legislature, bc premier, bill vander zalm, constitution act 1867, constitutional amendment, current office, governor general of canada, HST, legislative approval, letter to the governor, michaelle jean, provincial legislatures, queen elizabeth, queen elizabeth ii, royal assent, sales taxes