Gerry Ritz is a genius!

[cpallett]

Bucket,

Sorry for the delay in getting back to you, but for those who think my original post was all sarcasm (which I agree it mostly was) I pass along a few quotes. First, from the Supreme Court of Canada:

“In modern Canada, therefore, conspiracy as a tort comprehends three distinct situations. In the first place there will be an actionable conspiracy if two or more persons agree and combine to act unlawfully with the pre- dominating purpose of injuring the plaintiff. Second, there will be an actionable conspiracy if the defendants combine to act lawfully with the predominating purpose of injuring the plaintiff. Third, an actionable conspiracy will exist if defendants combine to act unlawfully, their conduct is directed towards the plaintiff (or the plaintiff and others), and the likelihood of injury to the plaintiff is known to the defendants or should have been known to them in the circumstances.
In my view, this passage provides a useful summary of the current state of the law in Canada with respect to the tort of conspiracy.”

Sure smells like number three may apply in these circumstances. With an intentional tort and a deliberate breach of statutory duty there is no Cooper/Anns test to pass (the biggest hurdle when suing the Feds).

Of course, there is always the get out of liability free argument that it was a "core policy" decision to push the bill through the Senate in the face of Justice Campbell's ruling. Again from the Supreme Court of Canada:

“I conclude that "core policy" government decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.”

So, I concede it could be characterized as a "core policy" decision. The only probelem with the "core policy" get out of litigation free card in this instance is that the courts have concluded that the Crown cannot make a valid "core policy" decision to breach an existing statute. Ooops.

“…the policy/operational dichotomy and the exempting effect of a policy decision, are not applicable where a duty of care is imposed by statute rather than arising at common law.”

Now I'm the first to agree that the law is certainly not settled on these issues and this one has plenty of moving parts. But while I cannot say with any confidence that this one will fly at the end of the day, it sure as heck will flap its wings.

As for what will actually happen, in my respectful view, unless Minister Ritz is a complete buffoon he will simply repeal section 47.1 of the Canadian Wheat Board Act before pushing his cherished bill through the Senate. Can't breach s. 47.1 if it doesn't exist.

While I am the first one to agree that the law is an ass, it is the nicety of proper procedure that helps to keep Canada free and democratic.

Hate to think that the 'Harper Government' will think they can just wipe out the presumption of innocence next, for example, with a wave of their magic wand.

If Minister Ritz's neck proves too stiff to bend to the rule of law and he plows recklessly ahead, and if Justice Campbell's ruling is upheld and Canadian grain producers wind up on the short end of the stick in this thing (all of which I agree is highly unlikely) then I may indeed have some skin in the game. This is my wheelhouse, after all, and it looks like they may pitch one right down the middle.

Doubt it will go that way, but stranger things have happened.

[oneoff]

Yes; but how long does it take to recind section 47 of the CWB act (or any section of any Act for that matter.) If it can't be done near instantaneously, then I see this playing out in a totally differe3nt manner; and am willing to explain my reasoning.

[cpallett]

oneoff, I agree that it appears that the 'Harper Government' has crossed the Rubicon with respect to pushing forward with their CWB legislation.

Doubt very much that any court in the land will grant an injunction.

Doubt also that Justice Campbell's ruling will stand up on appeal.

Doubt even more that the loss of a single desk for wheat and barley will cause demonstrable damages.

However, as I wrote earlier, stranger things have happened.

How do you see this playing out?

[oneoff]

I was once told that once something was "tainted", that everything stemming from that matter is also "tainted".
The political agenda for our majority Federal government is clearly to have the legislation now in the Senate, proclaimed by the middle of the month. Thense, the 8 remaining directors will be immediately relieved; and the funding and moral support for court proceeding will supposedly dry up the troublesome points being made by CWB supporters and those with vested interests in maintaining the status quo. Is that not what the pro choice side is told and believes?
My feeling is that the tipping point one way or another, will come after the ramming through of the legislation. There is no way that Judge Campbell's ruling of Ritz's obvious "affront to the law" will be overturned before proclamation, or that in the eyes of the Court Ritz's name has been cleared or expunged. And yet we will have legislation that is "tainted" with what all law abiding citizens and the Courts of the land can only admit was not drafted and implemented properly.
In some form; the CWB supporters will make that point to the court; after the legislation has become "law".
The remedy could very well involve starting all over; by repealing the CWB Act; or repealing or ammending section 47, prior to implementing the legislation that the Conservative government wishes to implement. That is , if there is enough political will left; and the embarrassment of a majority government being set back, can be overcome.
Every court is going to affirm that proper process must be adhered to by all persons and especially our various levels of government.
Eventually the CWB will be bludgeoned much worse than had to happen; and the changes that do happen will not be made within the time frames that the reigning government had envisioned.
Remedies for acts such as bale burning and efforts designed to silence opposition that deeply frustrates persons desirous of taking matters into their own hands will be dealt with separatly by the legal system.
And all rightly so; I wouldn't have it any other way.

[cpallett]

Oneoff, I doubt that the Courts will be quick to declare Bill 18 invalid once it has been proclaimed until and unless the Supreme Court of Canada upholds Justice Campbell's ruling. They are more likely to take a wait and seee approach.

I fully expect that whatever the Federal Court of Appeal does with Justice Campbell's decision leave will be sought and granted to The Big House in Ottawa.

Frankly, while I do agree that due process must be respected and the rule of law must be paramount over political gamesmanship, my experience tells me that it is very dangerous to try to predict what any judge in Canada will do, much less nine of the best and brightest. Should be a great show. See you there.