The Great CWB Fallacy.... 91(2) rules over Alberta

[TOM4CWB]

The CWB and federal government is trying to reverse constitutional law of the Supreme Court of Canada, by insisting that Alberta has no right to be involved in marketing wheat and barley outside Alberta... The following rulings explain why;

The Great Fallacy, as the Honourable Court called it, is an important constitutional “trade and commerce” 91(2) ruling. It stated:

“…first, that, because in large part the grain trade is an export trade, you can regulate it locally in order to give your policy in relation to the regulation of that part of it which is export. Obviously that is not a principal the application of which can be ruled by percentages. If it is operative when the export trade is seventy percent of the whole, it must be equally operative when the percentage is only thirty; and such a principle in truth must postulate authority in the Dominion to assume the regulation of almost any trade in the country… Precisely the same thing was attempted in the Insurance Act 1910, unsuccessfully. … in a system involving a division of powers such as that set up by the British North America Act, it may often be that subsidiary legislation by the provinces or by the Dominion is required to give full effect to some beneficial and necessary scheme of legislation not entirely within the powers of either. ”

RE The Grain Marketing Act 1931, Page 285. The Honourable J. A. Turgeon ruled that the Provincial Jurisdiction has an important role to fulfill when dealing with Grain Monopolies

The Honourable J. A. Turgeon ruled: “Grain grown in Saskatchewan and ready for market is, of course, property in the province; and the owners of this grain enjoy in respect to it civil rights in the province and also civil rights outside the province .”( Citizens Insur. V. Parsons supra; Political arrangements required between the Provinces and the government of Canada.)

Since Saskatchewan wanted a grain marketing monopoly, the Honourable J. A. Turgeon further stated; “…If it were advisable or necessary to do so, there appears to be no reason,…why the two legislative bodies, each using the power conferred exclusively upon it, might not concur in attaining the object aimed at.”

The BNA Act 91: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;
91(2) The Regulation of Trade and Commerce.

The BNA Act Section 92: In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
92(13)Property and Civil Rights in the Province

It certainly appears that the CWB is trying to bluff Alberta into submission... however constitutional law is certainly on the Government of Alberta's side on this issue!

[TOM4CWB]

Parsley;

I was reading through a court document... and came across this;

CWB Licence denial is prohibition or expropriation

Although the Appeal is submitted as not depending on this argument for success, this ground is made as an additional ground of Appeal. Jurisprudence clearly establishes that the CWB Act is valid legislation under Trade and Commerce.

A 1947 internal legal document relating to the powers of the CWB, on p. 11, stated:
"It is submitted that the authority of Parliament to legislate in relation to ‘The Regulation of Trade and Commerce’ may be summarized as follows:

..............
(6) 'Regulation' does not include 'prohibition' of the carrying on of a trade or business (1896 Prohibition case)."

It is submitted that the requirement of an export licence and the refusal to grant the licence amounts to an export prohibition, which is beyond the authority under Regulation of Trade and Commerce.

Alternatively, if it is not a prohibition of exporting, the refusal to grant a licence amounts to an expropriation without consideration of adequate compensation.

In La Ferme Filiber Ltee v. The Queen [1980] 1 F.C. 128 (T.D.) the court states:
"An expropriation implies dispossession of the expropriated party and appropriation by the expropriating party; it necessarily requires a transfer of property rights from one party to the other." (underlining added)

In Archibald v. CWB (1997) (supra) Judge Muldoon states:
"It (CWB) simply requires producers to all do the same thing, viz, sell their export grain to the CWB.

In The Queen (B.C.) v. Tener [1985] 1 S.C.R. 533, the respondents owned mineral rights and surface rights to get to the minerals on land which became a provincial park. The Supreme Court ruled that the requirement of a park use permit under the provincial park legislation and the refusal of the government to provide the permit amounted to expropriation.
"...the rights granted to the respondents were reduced in law and recovered in part by the Crown. ... This process ..... constituted a taking....."

The CWB Act and regulations do not authorize the CWB to expropriate the wheat and barley grown and owned by producers in the designated area.

In the book The Law of Expropriation and Compensation in Canada 2nd Ed. 1992, by E.C.E. Todd, it is pointed out on p. 38 that:
"1. The property of a subject cannot be taken without authorization in the form of a legislative enactment.
2. The authorization must be clear. If there is any ambiguity about whether the authority may take the subject's property, the legislation must be construed in favor of the subject."

In CWB v. Nolan et al (1950), supra Locke, J., concurring with the Supreme Court judgment, wrote:
"Statutes are not to be construed as taking away or authorizing the taking away of the property rights of the subject, unless their language makes that intention abundantly clear."

In McKay et al. v. The Queen [1965] S.C.R 798, 53 D.L.R. (2nd) 532, Cartwright, J., for the majority said at p. 803:
"The second applicable rule of construction is that if an enactment, whether of Parliament or of a legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly." (underlining added)

The compensation for the expropriated Prairie farmer's grain is inadequate. The price paid is arbitrarily set and below world market prices. Interim and final payments are not considered as the price paid by the Board to acquire the grain. From Interpretation of and Canada's Compliance with Article 701.3 with respect to durum wheat sales, [1993] F.T.A.D., para. 59, at p. 38:
"In essence, Canada asserts that the latter two payments (interim and final) are in fact and in law a distribution of profits, as opposed to an amount paid for the acquisition of the grain."
and para. 75, at p. 45:

"The Panel concludes, ........that the acquisition price of the goods .......includes only the initial payment; or, in the event of an upward adjustment, the acquisition price for goods sold after the adjustment is the initial price plus such adjustment."

Obviuosly the work some farmers have put into this legal effort is nothing short of Heroic!

If the Sask. Judge ignores all this legal info... JUSTICE is being attacked by judges that are legal terrorists...

[wedino]

Tom4, >>If the Sask. Judge ignores all this legal info...<<

Are you referring to the appeal being put forward by farmers re: grain trucked to USA in 1996?

[TOM4CWB]

Wedino;

10-4... the second quote is from a small part of the Melle factum, presented on January 20, 2003.