October 28, 1998


Professor Peter W. Hogg
Osgoode Hall Law School of York University
Faculty of Law
4700 Keele Street
North York, Ontario
M3J 1P3


Dear Professor Hogg:

Re: Overlap of Taxing Powers

As a hobby, I operate a web site called "Canada, Taxing, Spending, and the Constitution", the address of which is http://www.ownlife.com/tax. The materials that appear on that site are intended to be written, to the extent possible, for the intelligent layperson.

I have just written an article, to be posted at my web site, concerning the purported "overlap" of federal and provincial legislative powers concerning taxation. The argument that these powers overlap has been a primary line of defence, by the federal government, in cases challenging federal tax legislation such as the Income Tax Act and the GST on division of powers grounds. In my article, I refer to the following passage at page 404 of your text, Constitutional Law of Canada (3rd ed, student edition):

"...the exclusiveness of the two lists does not mean that similar or even identical laws may not be enacted by both levels of government. Some laws are available to both levels, but that is because such laws have a double aspect (or two matters), not because the classes of subjects duplicate or overlap each other; they do not [footnote 160]"

and I also refer to footnote 160 on that page, which states:

"There is one arguable violation of this proposition, namely, the taxation powers of ss. 91(3) and 92(2): see ch. 30, Taxation, at note 17, below".

In my article, I conclude that there is no such violation, and that the appearance, to you, of an arguable violation may stem from an inference respecting the following statement made by Professor La Forest (as he then was) in his paper "The Allocation of Taxing Powers Under the Canadian Constitution" (2nd ed), the title of which appears in footnote 17 in chapter 30 of your text:

"Since both levels of government may impose direct taxation and levy revenue...their legislation may well overlap. Here the courts have not applied the usual principle of federal paramountcy, but have taken the attitude that the two taxations can stand side by side and that there is no clash or conflict. Thus the same person may be taxed on his income both by the provinces and the federal Parliament." (p. 52)

Having criticized your proposition in this way, I thought it appropriate to promptly notify you of same, and offer you the opportunity to reply to my critique. Enclosed, please find a copy of the article. Please feel free to make any comments or criticisms you may feel are appropriate. If you so choose, I will be happy add them to my web site as counter-point material.


Regards,


Paul McKeever, B.Sc.(Hons), M.A., LL.B.


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