Sean Rehagg in the Globe and Mail writes that BC’s new tax on property purchased by foreign nationals is illegal. The illegality is based on a Charter Right as extended by our courts. Whether the illegality applies to such taxes applied on non-resident purchasers is not clear to me.
The Charter of Rights and Freedoms forbids governments from discriminating on the basis of a list of prohibited grounds, including national origin. Canadian courts have extended those prohibited grounds to include citizenship status.
The new B.C. tax, which took effect Tuesday on properties in Metro Vancouver, is not restricted to people living outside Canada. It applies to anyone who is not a citizen or a permanent resident. It taxes people, including residents of British Columbia, differently depending on their citizenship status. There is little question that a tax applying exclusively to a group defined by one of the Charter’s prohibited grounds would constitute discrimination.
Mr. Rehagg notes Canada’s (and BC’s) tradition of discrimination, and links it to this new tax:
While the new 15-per-cent B.C. levy applies to foreign nationals, we all know the aim of the legislation is narrower: curtailing real estate investment by Chinese foreign investors. In this context, what is striking about the levy is how closely it parallels other attempts to restrict Chinese participation in the B.C. and Canadian economies..
. . . . In light of this history, it is imperative that we be cautious about policies that target people on the basis of national origin or citizenship status. The message sent by the new B.C. tax legislation – about who is welcome to participate in our economy and in our communities – matters.
Sean Rehaag is an associate professor, Osgoode Hall Law School, York University.