Manitoba's NDP government will argue in a live-broadcast court hearing next Wednesday that it had the right to raise the provincial sales tax and sidestep a referendum that had been required under the province's balanced budget law.
"It is respectfully submitted that it is now well established by the highest authorities that the Charter (of Rights and Freedoms) imposes no obligation on the government to implement a referendum or to maintain a referendum previously established," government-hired lawyer Jonathan Kroft writes in a 44-page submission to Court of Queen's Bench.
"This is a case about ... the jurisdiction of a provincial government to manage the provincial economy and the limits on the role of the court to intervene in the operation of the legislative branch of government."
The government broke an election promise last July and raised the retail sales tax to eight per cent from seven. To do so, the government suspended a section of the balanced budget law, passed in 1995, that required a referendum on any increase to provincial sales, income or payroll taxes.
The law was worded specifically to require a referendum before any tax-hike bill could be put before the legislature, but the NDP's bill did two things simultaneously: it raised the tax and suspended the referendum requirement.
'I don't want to kneel'
That prompted the Opposition Progressive Conservatives to file the lawsuit, which asks the court to declare the tax increase illegal. Tory Leader Brian Pallister said Friday he felt there was no other option but to defend what he sees as democratic rights.
"Frankly, it comes down to a question of whether you want to kneel before this government or not. And I don't want to kneel."
The government's submission cites higher-court rulings on the rights of governments to change laws freely, barring constitutional or charter violations.
"It is respectfully submitted that the decision of the legislative assembly ... is not reviewable by the court by virtue of the doctrine of parliamentary privilege. The doctrine, among other things, recognizes that certain decisions are within the exclusive jurisdiction of the legislative branch of government."
The government document cites previous court decisions, including a 1991 Supreme Court of Canada ruling on federal transfer payments, which said one government cannot bind the actions of a future one.
The court battle also centres on two other issues: Does the elimination of a referendum violate the freedom of expression of Manitobans? And do the Progressive Conservatives have the right to file the lawsuit instead of an affected individual or group.
Tories vow to take fight to higher court
Pallister said he will put his own name in place of the party's if need be and will appeal to a higher court if he loses next week.
"I'm standing up for Manitobans and ... and our political organization will. We made that commitment and we're going to keep that commitment."
The tax increase has taken a toll on the popularity of the NDP, which has been in power since 1999. Opinion polls in the last nine months suggest the New Democrats are lagging well behind the Tories in voter support. The next election is slated for April 2016.
Finance Minister Jennifer Howard said the raise in the PST was necessary and the government did follow proper procedures.
"We are confident the elected legislature acted appropriately, passing the measures necessary to make critical investments in infrastructure and flood protection," Howard said in a written statement.
Howard's press secretary said the NDP brief distributed by the Tories was a draft and granted a media request for the final version that was submitted to the court May 20.