CHARBONNEAU – Speculation Tax Declaration defies the presumption of innocence

KAMLOOPSIANS ARE RECEIVING the Speculation Tax Declaration form in the mail for the first time.

I thought it must be some kind of scam but B.C.’s Finance Minister Brenda Bailey says no:

“These are for real. It’s good that people are aware of scams out there but this is actually something that we’re asking folks to fill out. It takes about five minutes. It’s a declaration that shows you’re the legitimate owner of the property and you’re declaring that you’re either renting out the property or you’re living in the property.”

If “folks” don’t fill out the form, they will be charged the Speculation Tax, even if they qualify for an exemption.

There are a number of problems that I have with this.

However, the idea behind the Speculation Tax is admirable. It aims to increase rental housing supply and ensure that foreign and out-of-province speculators are taxed fairly.

But there are legal problems with the Speculation Tax Declaration.

One is that it is an example of reverse onus. Under the law, reverse onus provisions challenge the presumption of innocence, a fundamental principle in criminal law.

If I don’t fill out the form, I’m assumed to be guilty of the Speculation and Vacancy Tax Declaration (2019).

There are legitimate uses of reverse onus under the law.

For example if someone is charged with murder, drug trafficking, or terrorism, they face a reverse onus bail hearing, they must prove they are not a danger to the public or a flight risk.

Another valid use of reverse onus is when a driver is pulled over and refuses a breath test, they must prove they had a valid medical or legal reason for not taking the breath test.

I know that failing to fill out the Speculation Tax Declaration doesn’t fall into the category of serious offences, but the principle is there.

Another thing that bugs me about the Speculation Tax Declaration is that if you have an empty home, why would declare it?

Common Law and the Charter protect against self-Incrimination. Under law, you have the right to remain silent and cannot be forced to testify. The Crown cannot use your silence as evidence of guilt.

That’s exactly what the Speculation Tax Declaration does. If you don’t fill out the form, you are assumed guilty of possessing a vacant house.

True, the Speculation Tax Declaration is not in the category of serious cases; such as if you are arrested by the police and you do not have to answer questions beyond identifying yourself.

The real problem is unaffordable housing and a low housing supply, not a few empty homes.

And the Speculation Tax Declaration penalizes individual homeowners rather than reducing real estate speculation – it’s a shotgun approach to a problem that should be targeted.

Mailing out hundreds of thousands of letters is heavily bureaucratic. It’s a clumsy way of achieving a desirable effect.

David Charbonneau is a retired TRU electronics instructor who hosts a blog at http://www.eyeviewkamloops.wordpress.com.