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
