HST Dies!

[Flubber]

Ben

If you wish to argue family law with me lets take it back to that thread and you can quote me if you dispute my assertions. Thank you.


AS for this thread, I asked for your constitutional take precisely to mock you and you came through as usual as you served up your usual flim-flam vague crap. When someone asserts unconstitutionality of something they should have a well defined grounds. Since I have read many of court decisions which impacted the division of powers historically , if you want to assert constitutionality intelligently, you really should cite caselaw or the exact provision


This below is from a law firm website http://bht.com/blog/hst/?page_id=14

Why the HST is constitutional

In 1992, the Supreme Court of Canada confirmed that the federal government has the constitutional authority to impose a sales tax. That authority includes the ability to set the rate. Accordingly, the federal government had the authority to impose a 12% sales tax in B.C. without the province’s involvement and without any provincial legislation.



The HST is imposed by a federal tax, not a provincial statute. Section 165 of the Excise Tax Act, a federal statute, imposes the GST and HST. Subsection (1) states that, for sales of goods and services that occur in Canada, sales tax applies at a rate of 5%. Subsection (2) states that, if that sale occurs in a “participating province”, there is an additional tax (being 7% in B.C.). When the sale is not in a participating province (e.g., Alberta), the tax is referred to as the GST. When the sale is in a participating province (e.g., B.C.), the higher federal tax is referred to has the HST.



Of course, imposing a 12% federal sales tax in B.C. while B.C. imposes its own 7% sales tax would be untenable, so B.C. had to pass legislation to repeal the PST. It of course has the authority to re-enact the PST. To do so without having 19% sales tax in B.C. requires the federal Parliament to change the Excise Tax Act to delete B.C. from the definition of participating province.



The constitutionality of the HST was confirmed by Justice Bauman of the B.C. Supreme Court in Vander Zalm v. British Columbia, 2010 BCSC 1320. In accordance with previous Supreme Court of Canada decisions, Justice Bauman noted at paragraphs 35 and 36 that the “HST represents an exercise in cooperative federalism …. [and] the Supreme Court of Canada emphasized the importance of cooperation to ensure that federalism operates flexibly”.



What is amusing is that, while the BC government in the BC Legislature correctly stated that it was not passing legislation that implemented the HST, the federal government in the federal Parliament was stating that the amendments to the HST legislation were nothing more than a matter within provincial jurisdiction. This latter statement was misleading since HST is without a doubt a federal sales tax imposed by federal legislation.

OK Ben -- Just for giggles-- why again is the HST unconstitutional? Have you ever read the constitution or ANY caselaw? Please feel free to blabber in generalities-- You might even provide me a true belly laugh

[Ben Kenobi]

AS for this thread, I asked for your constitutional take precisely to mock you and you came through as usual as you served up your usual flim-flam vague crap. When someone asserts unconstitutionality of something they should have a well defined grounds. Since I have read many of court decisions which impacted the division of powers historically , if you want to assert constitutionality intelligently, you really should cite caselaw or the exact provision

Uh, how is citing the explicit words of the 1867 division of powers, 'flim flam vague crap'? Methinks you just don't like the truth. I even cited case law in stating that prior decision have ruled that the feds can regulate intreprovincial commerce, only in certain cirucmstances which don't apply here.

As for your 'citation'.

In 1992, the Supreme Court of Canada confirmed that the federal government has the constitutional authority to impose a sales tax. That authority includes the ability to set the rate.

Absolutely. The Federal government has the authority to impose a sales tax across all jurisdictions of Canada.

The cannot impose a sales tax, f'instance, exempting say the province of Quebec.

Accordingly, the federal government had the authority to impose a 12% sales tax in B.C. without the province’s involvement and without any provincial legislation.

Only if said sales tax were also imposed in every province. Hence the GST.

[The HST is imposed by a federal tax, not a provincial statute. Section 165 of the Excise Tax Act, a federal statute, imposes the GST and HST. Subsection (1) states that, for sales of goods and services that occur in Canada, sales tax applies at a rate of 5%. Subsection (2) states that, if that sale occurs in a “participating province”, there is an additional tax (being 7% in B.C.). When the sale is not in a participating province (e.g., Alberta), the tax is referred to as the GST. When the sale is in a participating province (e.g., B.C.), the higher federal tax is referred to has the HST.

BC is no longer a participating province.

The constitution explicitly states that the provinces, and the provinces only have the right to regulate trade within the borders of the province.

[Flubber]

AS for arguments that a province gives away its ability to raise and lower taxes, this as a practical matter is untrue

Nova Scotia HST rate increase As of July 1, 2010, the HST rate in Nova Scotia will increase from 13% to 15% (5% federal part and 10% provincial part).

The province of Nova Scotia has released transitional rules to prepare both consumers and suppliers for this rate change and other HST adjustments. See Transitional Rules for the Nova Scotia HST Rate Increase.

This from the government website. Nova Scotia increased its HST !!! Ben did you know that a province could do this????

[Flubber]

Ben never change-- you cite authority for something inapplicable to buttress your argument LOL

ben the funny thing is that there is a somewhat interesting legal point in the conflict between s 91(3) and 92(2). Given these direct provisions, anything you are saying about trade is just malarkey. Bottom line though is that the courts have held that the GST/HST is legal so unless you have a new twist , the HST as drafted was constitutional;

[Flubber]

Oh and Ben-- In your response to NYE-- he was clearlly talking about "income taxes"-- The hint for you was that he said "income taxes" and Alberta certainly has those

[Ben Kenobi]

ben the funny thing is that there is a somewhat interesting legal point in the conflict between s 91(3) and 92(2). Given these direct provisions, anything you are saying about trade is just malarkey. Bottom line though is that the courts have held that the GST/HST is legal so unless you have a new twist , the HST as drafted was constitutional;

It's not constitutional. Just because some provinces find it beneficial does not mean that it's not overreach by the feds. What perennial debtor provinces like Nova Scotia do matters nothing to me. They lost their provincial status a long time ago.

Ben did you know that a province could do this????

With permission from the Feds, yes, they can do anything they want. Mother may I?

The funny part is that Ontario now has to ask the Feds for an allowance. I find that hilarious.

Oh, btw, has anyone actually managed to reduce taxes? Funny that, it only works one way.

Still waiting for you to address this point.

The constitution explicitly states that the provinces, and the provinces only have the right to regulate trade within the borders of the province

Calling it malarky isn't exactly a refutation. Do you do this in court?

cite authority for something inapplicable

Uh, so the constitution is inapplicable to a discussion on the constitution? Interesting logic.

[Flubber]

ben-- SO TRADE is the power where we should discuss fedeal authority for a GST???? Fine LOLOLOL I would have instead talked about the 91(3) power --- The raising of Money by any Mode or System of Taxation --

your assertions on trade appear wrong as well. 91(2) gives the FEDS power over -- "The Regulation of Trade and Commerce"--- thats the only place the word "trade" appears in sections 91 1nd 92. So where does the provincial trade power come from?? are you asserting the power under subsection 10, 13, 16??? some other section????


My problem is that the GST/HST is a tax and as such I would tend to discuss it as 91(3) The raising of Money by any Mode or System of Taxation. or 92(2)--"Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes" but since you still want me to address trade, I am asking for your direct cite respecting trade as a provincial power.

Oh and Ben I have yet to see you cite ANYTHING other than an irrelevancy about the charter which was at a llevel of grade school constitutional law. I have named the provisions I see that apply but hey maybe those three law school tax courses and two constitutional law courses I took were a waste and all 5 professors were wrong-- Maybe taxes are constitutionally authorized under some sort of trade power and not the provisions that have the word "tax" in them. LOLOLOLOLOLOL

So the question before you is where YOU see the "trade" power arising from and how that links to a sales tax in a way that would preclude the two taxation powers. Pick a number Ben from 1 to 16 ?? Or perhaps somewhere outside section 92??

Ben the funny thing is that you appear to have no freaking clue how out of your league you are-- without looking it up do you even know what the POGG powers are? Do you have any sense of the history of constitutional ointerpretation AT ALL ??

[Flubber]

Ben I never ever said and would never ever say that the constitution is irrelevent to a discussion on the constitution. Thats yet another example of the stupidity of how you blatently lie about what others have said

[Flubber]

OH and Ben

In the Ontario agreement with the feds on HST they committed

Provincial Tax Policy Flexibility
The Canada-Ontario CITCA will confirm Ontario's flexibility, subject to reasonable notice provisions, to:

increase or decrease the OVAT rate after two years from the date of OVAT implementation;

So its no mother may I-- They have a signed agreement that says the province can amend rates as they wish after two years-- all their deal says is only one rate change per 12 months

Part IV
Provincial Tax Rate
The Parties agree that the PVAT Rate in respect of the Province will be 8% as of the Implementation Date.
The PVAT Rate in respect of the Province may be increased, or decreased, in accordance with the provisions of this Agreement after a minimum period of two years from the Implementation Date. Following that two-year period, any change in the PVAT Rate in respect of the Province, as permitted under the provisions of this Agreement, will not occur more often than once in any twelve-month period.

http://www.fin.gov.on.ca/en/publications/2009/citca.html

THey also say

Neither Canada nor Ontario shall be deemed to have surrendered or abandoned any of its powers, rights, privileges or authorities under the Constitution Acts, 1867-1982, and any amendments thereto, or otherwise, or to have impaired any such powers, rights, privileges, or authorities.

I understand BC would have had the same type of deal and would only fix rates (at whatever rate BC wanted to start with) for a certain period. There goes your argument about BC losing their fiscal flexibility-- NS has already adjusted their HST so they dont have to beg for a change

ben have you never heard of federal-provicial co-operation???

And for someone supposedly so passionate on this issue, crap man you are so woefully misinformed


[Flubber sits back and wonders how Ben will avoid this one-- Will he sudenly assert that their ability to set their own tax policy is irrelevant somehow---Stay tuned for the next episode of how Ben Lies

[Ben Kenobi]

ben-- SO TRADE is the power where we should discuss fedeal authority for a GST????

Yeah, that's how it came about in the first place.

(2) gives the FEDS power over -- "The Regulation of Trade and Commerce"--- thats the only place the word "trade" appears in sections 91 1nd 92. So where does the provincial trade power come from?? are you asserting the power under subsection 10, 13, 16??? some other section????

Subsection 29:

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

92 goes on to list explicit provincial powers:

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

The defense rests, your honour.

[Ben Kenobi]

Neither Canada nor Ontario shall be deemed to have surrendered or abandoned any of its powers, rights, privileges or authorities under the Constitution Acts, 1867-1982, and any amendments thereto, or otherwise, or to have impaired any such powers, rights, privileges, or authorities.

Which is a tacit admission that the law, as it stands, is unconstitutional. The province cannot sign away their constitutional rights even if they argue that they can undo the deal at any time. If the law were in fact, constitutional, there would be no need for this clause.

Unless of course the province were to invoke the notwithstanding clause in order to pass HST, which is an option under the Canadian constitution, but everything you cite reinforce my conviction. Why would the province of Ontario accept a restriction on their own sovereign rights? That would be like Harper signing a deal not to increase teh GST.

[Flubber]

Three things

1. You display your ignorance again-- 91(29) only gives powers to the feds. Basically the feds have exclusive jurisdiction on the things "excepted" in article 92. So this provision is authority for fderal jurisdiction over things which are specifically listed under the provincial side as exceptions to their more general powers--- like

Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
Lines of Steam Ships between the Province and any British or Foreign Country:
Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. ( see 92 (10)

or Marine Hospitals (92(7))--



2. I find hilarious that I cite 92(2)--- you then demand that I address your "provincial power over trade in the province" argument since mocking was not refuting it apparently --- I do -- again citing 92(2)as a better but apparently losing argument and ask for your trade argument and you cite 92(2) back to me. Most laugable response ever. What happened to your trade in the province argument? I knew about the 92(2) argument. Hell I told you about it.

3. Bottom line is that 92(2) has not been accepted by the courts as a reason to make federal sales taxes unconstitutional, So while there might be an interesting argument to be made, I doubt you understand it and in any event, the courts have determined that GST IS constitutional. So you were wrong---AGAIN

[Flubber]

Unless of course the province were to invoke the notwithstanding clause in order to pass HST, which is an option under the Canadian constitution,

Do you realize how mammothly stupid this statement is--- IN a sea of stupid statements this one takes the cake--- Please please tell me how the notwithstanding clause of the Charter has any application-- it will be my biggest laugh today

[Flubber]

Which is a tacit admission that the law, as it stands, is unconstitutional. The province cannot sign away their constitutional rights even if they argue that they can undo the deal at any time. If the law were in fact, constitutional, there would be no need for this clause.

Unless of course the province were to invoke the notwithstanding clause in order to pass HST, which is an option under the Canadian constitution, but everything you cite reinforce my conviction. Why would the province of Ontario accept a restriction on their own sovereign rights? That would be like Harper signing a deal not to increase teh GST.

Taken as a whole

1. Language in the co-operation agreement about not affecting constitutional rights is fairly boilerplate and will frequently appear in agreements between the feds and provinces where both their powers are involved. The legions of lawyers involved will be shocked to learn they have been admitting unconstitutionality and I am sure they will amend their practices immediately based on the word of a history tutor

2. The Charter thing-- Which charter right is being infringed by the HST exactly -- It has to be one of s 2 or sections 7-15-- you did know THAT right-- apparently not!!

. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Equality Rights
Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(84)

3. Provinces have substantial freedom to set tax policy-- they just cant fluctuate the tax rate a lot or change the tax base while they are in a HST system

[Flubber]

THis article is over 10 years old and long but it canvasses some of the ups and downs of the GSt-HST

http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/prb0003-e.htm