44th Parl. 1st Sess.
February 8, 2022 10:00AM
- Feb/8/22 11:04:37 a.m.
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Madam Speaker, at the outset, let me acknowledge that I am speaking to you from the traditional lands of the Algonquin people. I also want to acknowledge the lands from which our colleagues are joining us today.
It is a solemn honour and pleasure for me to rise in this debate to speak on the proposed constitutional amendment in relation to Saskatchewan. It is not every day a motion for a resolution to amend the Constitution of Canada comes before the House. I want to thank the member for Regina—Lewvan for bringing this forward.
Indeed, a resolution authorizing the proposed amendment has already been adopted by the Legislative Assembly of Saskatchewan. The amendment, if also authorized by resolutions of both Houses of Parliament, would repeal a provision of the Saskatchewan Act that was enacted by Parliament in 1905 but is now an entrenched part of the Constitution of Canada.
Hon. members are aware that 40 years ago the Constitution of Canada was patriated by the enactment of the Canada Act 1982. No longer would the Parliament of the United Kingdom legislate for Canada, including making amendments to its Constitution. The Canada Act 1982 completed Canada's journey from a colony to an autonomous dominion to a full independent state, while preserving our institutions and traditions of parliamentary democracy and the rule of law.
Our government is proud to support the province and the people of Saskatchewan in supporting this important constitutional amendment to ensure the tax system in Saskatchewan is fair and that all corporations pay their fair share of taxes.
The Constitution Act, 1982, which is scheduled to the Canada Act 1982, not only constitutionally entrenches the Canadian Charter of Rights and Freedoms, but recognizes the rights of indigenous peoples of Canada and sets out the commitments of governments to promote equal opportunities for all Canadians. It also establishes the procedures for constitutional amendments.
There are five amending procedures. Two of them we have often heard about: the general rule or 7/50 procedure; and the unanimous consent procedure.
The general procedure requires the approval of at least seven of the 10 legislative assemblies of the provinces representing 50% of the provincial population, and the two federal Houses. Only one constitutional amendment has been made under the general procedure. It was made in 1983 to strengthen the rights of indigenous peoples under section 35 of the Constitution Act, 1982.
The unanimous consent procedure, which applies to a limited number of subjects, requires the approval of both the Senate and the House, as well as 10 provincial assemblies. For both the Meech Lake and Charlottetown accords to succeed, they would have had to meet this stringent standard.
As well as the two multilateral procedures, there are two unilateral procedures of limited scope. The Parliament of Canada can amend the Constitution of Canada in relation to the executive government or the Senate and the House of Commons, subject to the protections of the fundamental characteristics of these institutions by the multilateral amending procedures. That is how, in 1985 and 2011, Parliament amended section 51 of the Constitution Act, 1867, concerning representation in the House. As well, each provincial legislature may amend the constitution of the province as long as it does not infringe on fundamental provisions, such as section 133 of the Constitution Act, 1867, and section 23 of the Manitoba Act, 1870, which protect language rights.
We now come to the bilateral constitutional amendment procedure. It is this procedure that the legislative assembly has invoked, which is set out in section 43 of the Constitution Act, 1982. An amendment to the Constitution of Canada in relation to a provision that applies to one or more but not all provinces may be made by a proclamation issued by the Governor General when authorized by a resolution of the Senate and the House, and of the legislative assembly of each province to which the amendment applies. That is the case here. The provision that would be amended, section 24 of the Saskatchewan Act, only applies to Saskatchewan. The legislative assembly of the province to which the amendment applies, the Legislative Assembly of Saskatchewan, has authorized this amendment. It is now for the two federal Houses to determine whether to adopt resolutions authorizing the same amendment: the repeal of section 24.
The bilateral procedure can be viewed as a middle ground between the multilateral procedures requiring unanimous consent of the federal and provincial Houses at one end and the unilateral procedures allowing for an amendment by an ordinary act to the legislature on the other. The bilateral procedure is found in part V of the Constitution Act, 1982, which the Supreme Court of Canada has said “provides the blueprint for how to amend the Constitution of Canada”.
The court called section 43, the bilateral formula, the “special arrangements procedure”, which applies in relation to provisions of the Constitution that apply to some but not all provinces. The court noted that it would “overshoot the mark” to make the adoption of the amendment dependent on the consent of provinces to which the provisions do not apply. Section 43 of the Constitution Act, 1982, also serves to ensure that a special provision cannot be amended without the consent of the province to which the amendment applies.
The bilateral constitutional amendment procedure has produced no fewer than seven constitutional amendments. Four of them concern Newfoundland and Labrador: one changing the name of the province to include “Labrador” in 2001, and three changing the denominational schools provisions of the terms of union in 1987, 1997 and 1998. One was made at the request of Quebec and also concerned denominational schools provisions to remove their application as to favour the organization of school boards along linguistic lines, and that was done in 1997. One was made at the request of New Brunswick in 1993, adding section 16.1 of the Canadian Charter of Rights and Freedoms, and thus recognized in the Constitution the equality of the English and French linguistic communities in the province. Finally, one was made at the behest of Prince Edward Island in 1993 to remove the requirement in the terms of union for Canada to maintain a ferry service, thereby facilitating the substitution of the construction of the Confederation Bridge to the mainland.
These amendments all have the same things in common: each amended provisions of the Constitution of Canada that applied to fewer than all provinces; each amendment applied only to one province; each amendment was initiated by the provincial assembly of the province in question before being considered by the federal Houses; and each amendment modernized certain aspects of the Constitution and demonstrated federal-provincial co-operation.
The amendment proposed by the Saskatchewan legislature is similar to the seven others that have been adopted under the bilateral process since 1982. It seeks to amend a provision of the Constitution that does not apply to all the provinces. The amendment itself would apply to only one province. The initiative to make the amendment came from the legislative assembly of the province before it ended up before us.
The amendment would modernize certain aspects of the Constitution, in this case by removing a limit on the exercise of the province's power that does not apply to most of the provinces and no longer has its place.
Repealing section 24 of the Saskatchewan Act at the request of the province would be, by the way, a fine example of federal-provincial collaboration.
The Governor General is being authorized to proclaim a constitutional amendment, so it should go without saying that the wording of the constitutional amendment must be identical in each of the federal and provincial resolutions and in each official language version of the text.
To come to the proposed amendment at hand, on November 29, 2021, the Legislative Assembly of Saskatchewan unanimously adopted a resolution to amend the Constitution of Canada to repeal, retroactive to August 1966, section 24 of the Saskatchewan Act, the enactment that created the Province of Saskatchewan.
This section of the act purports to subject Saskatchewan's constitutional powers to clause 16 of an agreement dating back to 1880 between the Government of Canada and the founders of the Canadian Pacific Railway company, which is now commonly referred to as the CPR. This clause exempted CPR from certain federal, provincial and municipal taxes forever. Despite its tax exemption, in 1966 CPR agreed to pay applicable taxes. More recently, CPR brought claims against all governments involved to reassert its historical tax exemption.
The amendment proposed by the Legislative Assembly of Saskatchewan is similar to the seven others that have already been made to the bilateral procedure since 1982. It aims to amend a provision of the Constitution that does not apply to all provinces. The amendment itself would only apply to one province. The amendment was initiated by the legislative assembly of the province before coming before us, and the amendment would effectively modernize certain aspects of the Constitution, in this case by removing a limit on the exercise of powers of the province that does not apply to most of the other provinces and which is no longer appropriate. Moreover, repealing section 24 of the Saskatchewan Act would be a nice example of federal-provincial co-operation.
Saskatchewan's concerns regarding section 24 are threefold. First, Saskatchewan is of the view that it would be inconsistent with the province's position as an equal partner in Confederation. The provision restricted Saskatchewan's taxation powers relative to those of the other provinces in Canada. Second, Saskatchewan believes it would be unfair for other businesses operating in the province, including small businesses, if a major corporation were exempt from certain provincial taxes, providing the corporation a significant competitive advantage over those other businesses to the detriment of farmers, consumers and producers of the province. Third, Saskatchewan asserts it would be unfair to the residents of Saskatchewan if a major corporation were exempt from certain provincial taxes, casting an additional tax burden onto the people of Saskatchewan.
Back in 1880, this exemption for a single large corporation may very well have been appropriate, as it was intended to recognize and encourage CPR's investment in the construction of the trans-Canadian rail network in the late 19th century. As such, it was just one of the incentives that Canada offered CPR to build Canada's first cross-country railway in fulfillment of a promise made to British Columbia for joining Confederation.
While there may have been valid reasons to grant CPR's founders a tax exemption as part of a series of measures to support the construction of Canada's transcontinental railway, those reasons no longer stand now that the construction is completed and Canada's transportation legislation has been modernized. In broader terms, section 24 of Saskatchewan's founding statute and CPR's historical tax exemption have not kept pace with how Canada's tax and fiscal policies have evolved to support an effective and efficient transportation system and a healthy growing economy.
Under the division of powers in our Constitution, the provinces are granted a general power to impose direct taxes. Section 24 seeks to constrain Saskatchewan's ability to do so with respect to the CPR, yet not all provinces are subject to such constraints, resulting in an asymmetry within the federation. Our government believes Saskatchewan should have the freedom to levy taxes within the province's boundaries, as it deems appropriate.
We agree with our Saskatchewan counterpart that other taxpayers in the province should not bear a heavier tax burden as a result of a single large corporation benefiting from an exceptional exemption from provincial taxation. We also agree there should be a level playing field between all businesses operating in Saskatchewan's transportation industry.
As we all know, the completion of this railway was fundamental to the birth of our nation and the subsequent rapid growth and development of our economy. The last spike, uniting east and west, is an iconic representation for our national heritage and unity.
If proclaimed, a constitutional amendment would have the effect of removing CPR's tax exemption from the Saskatchewan Act, retroactive to August 29, 1966, the date on which CPR entered into an agreement with the federal government to forego this perpetual exemption from some taxes. The Constitution was not amended to reflect this agreement at the time because it had not yet been patriated.
It is important that we not only focus on the substance, but also ensure that the form and procedure of the constitutional amendment are executed faithfully.
It is true that the Constitution is, as the Supreme Court tells us, the expression of the sovereignty of the people of Canada and it lies within the power of the people of Canada, acting through their governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory.
I submit that this is a very important constitutional amendment, one that is rooted in fairness. It would ensure that all Canadian corporations, including in Saskatchewan, pay their fair share of taxes. I look forward to ensuring the passage of this motion today, as well as questions and comments from our colleagues.
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- Feb/8/22 11:22:26 a.m.
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Madam Speaker, I cannot speak for the Senate. The Senate is independent of our government, but we certainly will be supporting members throughout the passage of the motion in the House of Commons today, as well as supporting it through the process in the Senate.
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- Feb/8/22 11:23:48 a.m.
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Madam Speaker, today's subject is a constitutional amendment that would essentially give Saskatchewan a right that it should have had to tax CPR. That is the fundamental issue. Previously, without this amendment, that would have been limited. I therefore submit that this is moving toward fairness, and it is up to the Government of Saskatchewan to impose a tax policy that is appropriate.
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- Feb/8/22 11:25:09 a.m.
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Madam Speaker, obviously, my friend has not known my politics long enough to understand that I have always said it is important to tax corporations. Of course, as a party we believe that and have acted on it consistently. We look forward to working with all parties on issues of importance, particularly in this case to ensure that Saskatchewan has all the tools available to it so we do not differentiate it from other provinces.
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- Feb/8/22 11:26:38 a.m.
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Madam Speaker, I thank my friend from Milton for his leadership and for ensuring that Canada's team does very well in Beijing. I really look forward to the medals they bring home.
To his point, this allows Saskatchewan a number of important things. First, it equalizes the tax playing field for all businesses so there is no unfair advantage and no unfair burden on other corporations that do not have this exemption. Second, it allows for corporations, such as CPR, to pay their share of taxes that are due to the people of Saskatchewan. It is really up to the people of Saskatchewan to decide how they spend their money, including on important issues such as health care.
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- Feb/8/22 11:28:27 a.m.
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Madam Speaker, I know our not supporting the ratification of this motion by way of unanimous consent was noted by the member for Carlton Trail—Eagle Creek. As the member knows, we get a number of unanimous consent motions, and something of this nature, with the magnitude of amending the Constitution, requires debate, and it is the type of debate we are having today. It allowed the government a number of months. The Saskatchewan legislature passed a motion in November last year, so we are within a three-month timeline to support it.
We are very proud to support the motion today. We look forward to its passage both in the House and in the other place.
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- Feb/8/22 1:23:43 p.m.
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Madam Speaker, I appreciate my friend's very important speech today.
I want to delve a bit into the UC motion in question that came about in December. As my friend knows, the Province of Saskatchewan passed this legislation on November 21. The UC motion came to Parliament in December, and this is the first time we are having a debate.
I know the member has been a parliamentarian for many years. In terms of Parliamentary practice, how important is it to have a debate on an issue as important as the Constitution?
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- Feb/8/22 1:35:07 p.m.
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Madam Speaker, I want to assure the hon. member for Saskatoon—Grasswood that the Saskatchewan caucus in our party is absolutely supportive of this motion, and of course, our government is supporting this going forward.
I do want to ask the member about the Senate. I know there is an independent group of senators in the Senate. What kind of measures and discussions has the opposition had with senators to get this through the Senate?
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