Politician's promises not set in stone, court says
By KIRK MAKIN
29 Jan 05
From Saturday's Globe and Mail
Toronto â †It's official: Politicians can break campaign promises with impunity.
An Ontario Superior Court judge has absolved Ontario Premier Dalton McGuinty of breaking an elaborately signed contract promising not to raise or create new taxes, saying anyone who believes a campaign promise is naive about the democratic system.
If anyone who voted for a politician based on a particular promise later were to go to court alleging a breached contract, â ?our system of government would be rendered dysfunctional. This would hinder, if not paralyze, the parliamentary system,â ? Mr. Justice Paul Rouleau said.
The judge was ruling on a request from the Canadian Taxpayers Federation to quash the Liberals' new health premium on the grounds that it broke an election promise.
â ?Imposing a duty of care in the circumstances such as exist in the present case would have a chilling effect and would interfere with the concept of parliamentary sovereignty,â ? he said. â ?To allow claims for negligent representation to be made based on these would raise the spectre of unlimited liability to an indeterminate class.â ?
With a broad smile and a much-televised flourish, Mr. McGuinty signed the written pledge during the 2003 election campaign as he stood on a podium with the president of the Canadian Taxpayers Federation, John Williamson, who signed as a witness.
Far from being an off-the-cuff act on the campaign hustings, the promise at stake was an orchestrated part of the McGuinty campaign.
It committed the province not to raise taxes or implement new ones â ?without the explicit consent of Ontario voters.â ? Mr. McGuinty also promised not to run deficits and to abide by the Taxpayer Protection and Balanced Budget Act.
However, the McGuinty government's resolve ebbed rapidly once the Liberals defeated the Progressive Conservative government on Oct. 2, 2003. Citing an unexpected deficit of $5.2-billion, the government said it was compelled to launch a health premium that would cost taxpayers who earned more than $20,000 from $60 to $900.
Last fall, the federation asked Judge Rouleau to declare the health tax invalid and order the return of almost $1-billion collected since it was implemented last July.
â ?It is hoped that, if elected, the politicians and their parties will keep their promises and will follow through with the pledges given,â ? Judge Rouleau said in the ruling.
â ?That said, however, few people would consider that all of the promises made and pledges given constitute legally binding documents between the candidate and the elector or electors to whom those promises or pledges were given.â ?
The ruling that politicians can break promises escaped notice when it came out shortly before Christmas, perhaps as those same politicians rushed off to their constituencies and as the tax federation contemplated its legal pounding.
The judge noted that Mr. McGuinty was far from the first politician to renege on a promise made.
â ?From the record, it is apparent that upon taking office and assessing the situation, the government believed that it would be contrary to the public interest to keep the promise made during the election,â ? the judge said. â ?This decision not to keep the promise does not mean that the promise, when made, was untrue, inaccurate or negligent.â ?
Judge Rouleau said it is up to voters, not the courts, to punish governments who fib and fabricate.
Sean Hamilton, a spokesman for Finance Minister Greg Sorbara, welcomed the ruling and said the tax was necessary.
â ?We are pleased that the court has confirmed the government's authority to introduce legislation implementing the Ontario health premium,â ? Mr. Hamilton said.
â ?The Ontario health premium...will raise essential revenues to support and improve health care for all Ontarians. The government made a difficult, but necessary, decision last year that this objective justified amendments to the Taxpayer Protection Act to allow introduction of implementing legislation.â ?
The federation, a non-profit lobby group opposed to taxes and government waste, argued in court that the premium was illegal on the grounds that a provincial law required the government to hold a referendum before it attempted to establish a new tax or raise an existing one.
Former premier Mike Harris passed the referendum legislation in 1999. However, the McGuinty government passed a bill effectively exempting the health-care premium.
â ?If we're told something on the campaign trail, we should be able to assume it's true,â ? Mr. Williamson told reporters during the proceeding. â ?If we accept lies from politicians and they go on and win elections, they're just going to go on lying to us.â ?
Judge Rouleau concluded that nothing prevents the government from exempting the health-care premium from the requirement in the 1999 Taxpayer Protection Act for a referendum.
Nor, the judge said, did the requisite â ?special relationshipâ ? exist between Mr. McGuinty and the federation that would allow its legal application to succeed.
With a report from Caroline Alphonso
