Law Times

www.lawtimesnews.com Law TiMes / March 3, 2008 Page 7 Canada's Bill of Rights for Taxpayers I s an unenforceable right a legal right or merely dreaming? The phrase "Bill of Rights" conjures up an image of constitu- tional rights of fundamen- tal legal principles. Not so in Canada. The Taxpayer Bill of Rights announced by the federal government has minimal substance and max- imum public flim-flam. The revenue minister said that she wanted "taxpayers to know they have rights and that … the CRa take these rights seriously. By introducing a Taxpayer Bill of Rights, we are ensuring that taxpayers are served with a higher standard of service, and if that fails, they have a taxpayer's ombudsman to turn to." So what? Neither the rights nor the ombudsman have legal force. why did the gov- ernment not entrench these so-called rights in legislation so that taxpayers could en- force them in the courts? The Taxpayer Bill of Rights gives taxpayers the right to: 1. Pay no more in taxes than required by law; 2. Service in English and French; 3. Privacy and confidential- ity; 4. a formal review and an administrative appeal by the CRa; 5. Treatment that is profes- sional, courteous, and fair; 6. Complete, accurate, clear, and timely information; 7. Not pay income tax amounts in dispute be- fore an impartial review; 8. Have the law applied con- sistently; 9. Lodge a service complaint and be provided with an explanation of findings; 10. Have the costs of compli- ance taken into account when administering tax legislation; 11. Expect the CRa to be ac- countable; 12. Relief from penalties and interest under tax legis- lation because of extra- ordinary circumstances; 13. Expect that the CRa will publish service standards and report annually; 14. Expect that the CRa will warn taxpayers about questionable tax schemes in a timely manner; and to 15. Be represented by a per- son of his or her choos- ing. The 15 rights collectively con- fer nothing upon taxpayers. The right to pay only what the law requires one to pay is a penetrating observation into the obvious. Canadians have enjoyed the right of constitu- tional taxation for 90 years. The right to service in Eng- lish and French and the right to privacy reflect existing law. Other rights — for example, the right to professional, cour- teous, and fair treatment — restate duties that all public servants who live off taxpayer dollars should have adhered to before the Bill of Rights. The relief from penalties and interest in extraordinary circumstances refer to income tax provisions that depend substantially upon the discre- tion of the minister of rev- enue, without any meaningful recourse to the courts. The right of taxpayers to choose their counsel is a legal right that taxpayers already enjoy — if only they could afford to retain counsel. The ombudsman, who will provide an independ- ent, non-binding review, will: • consider whether or not CRa officials have prop- erly handled a service complaint in cases where taxpayers feel they have not been treated fairly or appro- priately; • provide advice to the min- ister of national revenue about service-related mat- ters in the CRa (including submitting an annual report to the minister, which will be tabled in Parliament); • identify and review systemic and emerging service-relat- ed issues that have a nega- tive impact on taxpayers; and • provide information to tax- payers about the complaint- resolution mechanisms within the CRa. The ombudsman has no legal powers to enforce his or her decisions. all that he or she can really do is inform tax- payers about the complaint- resolution mechanisms within the CRa, and then leave the taxpayer in the hands of the agency, which is the subject of the taxpayer's complaints. The government pro- claimed with considerable fanfare that the Bill of Rights strengthened Canada's demo- cratic institutions and in- creased transparency and ac- countability for all Canadians. To be sure, all of these are laudable objectives. why did the government not entrench the taxpayer's rights in legisla- tion that they could enforce in the courts? LT Vern Krishna, CM, QC, LLD, FCGA, is tax counsel with Bor- den Ladner Gervais LLP, and executive director of the CGA Tax Research Centre, University of Ottawa. E-mail: vkrishna@ blgcanada.com Process over substance H igh-flyer federal bureaucrat al- lan Gottlieb re- counts in his memoirs how he once gave the following advice to then-prime min- ister Pierre Trudeau: "Beware of the people who put process over sub- stance . . . there is a whole new breed whose interest is in how [government] is organized, not what government actually de- cides. Beware the process freaks." Gottlieb's sage advice came to mind watching Premier Dalton McGuinty, House Leader Mi- chael Bryant, and others muse about a slew of process changes to the Ontario legislature prior to its spring return. First off the mark was Bryant, who talked about changes to the hours and days the legislature sits and works. Then came the premier, sug- gesting the junking of the Lord's Prayer and its replacement by something that represents the "diversity of Ontario." These are process matters, of zero importance other than to substitute for the lack of substance in how the Liberals deal with the serious problems facing Ontario. How about these substance items, off the top: a manufactur- ing sector imploding from a high dollar and low productivity; a high-cost public sector embold- ened by its (accurate) belief that the Liberals are in its pocket; a justice sector that appears to operate on the premise that the government has nothing to do with how it functions; a health sector so scared of its minister that it has made trembling silence into an art form; a crime crisis in Toronto that the Liberals say will be solved if legal gun owners can be prevented from pursuing their hobby; an inevitable energy crunch as nuclear construction timelines collapse . . . But let's get away from sub- stance and back to process. when the legislature sits, the government is under attack, and last year, rather than have to defend the patronage method by which the Liberals allocate grants to their friends and po- tential friends, they preferred to dissolve the sitting. The result was the legislature sat just 40 days last year, which coincidentally is the same year most members voted themselves a 25 per cent wage increase. This year, although there was talk of an early recall of the house on Feb. 25, it will actually not re- turn until March 17, the sched- uled date. One theory has it that the government has nothing to introduce and therefore the delay. In the meantime, more process. Hence McGuinty's Lord's Prayer pitch, which is basically to junk what is there now — and which has symbolic importance to a lot of people — and replace it with an unknown. If the premier was consistent, mind you, he'd replace the cur- rent non-sectarian Lord's Prayer with the Roman Catholic version, which would fit his vision of On- tario as being a province where the only religion entitled to pub- lic dollars is the Roman Catholic, which it gets for its schools. But apparently not. Knowing this government, one suspects it will opt to have "diversity" represented every day, meaning prayers from dozens of religions and maybe even non-religions (agnostic's prayer: "God, if you exist, help me, if you can.") How about a wiccan prayer on the solstice? Bryant's proposed changes are even more bumpf. He wants question period moved to the morning, which must have sent shudders of horror through generations of Queen's Park reporters, who normally come in late — but also leave late because of the nature of the news cycle. The suspicion in opposition circles is that the government wants to shut down the prepara- tion time the opposition has to prepare for question period, while allowing extra time for the gov- ernment to create favourable spin for the supper hour newscasts. More intriguingly, Bryant wants the legislature to sit a full day from 9.30 a.m. to 6 p.m., with evening sittings only when "absolutely necessary." This change appeared to be for five days a week, which would have made a hash of Friday being constituency day, when a voter could be guaran- teed to find his or her represent- ative in the riding. This is not to mention the ob- vious difficulty of rescheduling what now happens on wednesday morning (cabinet), Tuesday mor- ning (caucus), and all those other mornings given over to commit- tees, not just legislative but gov- ernment and party as well. Hard as it may be for outsiders to understand, when the legisla- ture is sitting, the workday is long and diverse, and having people sitting mindlessly in the legisla- ture listening to what in the main are very bad speeches is not really the best use of their time. But the essence of this govern- ment's approach can be found in the fact that these process ques- tions were not discussed with the opposition prior to them being dumped into the news media. as Gottlieb said, when you have nothing of substance to discuss, talk about process, to which might be added the cor- ollary in the political world that you do it unilaterally and pub- licly for maximum benefit. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@ rogers.com COMMENT Financial Matters By Vern Krishna Inside Queen's Park By Derek Nelson

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