• You will need to login or register before you can post a message. If you already have an Agriville account login by clicking the login icon on the top right corner of the page. If you are a new user you will need to Register.

Announcement

Collapse
No announcement yet.

The courts aren't always right

Collapse
X
Collapse
 
  • Filter
  • Time
  • Show
Clear All
new posts

    The courts aren't always right

    By now we all know the results of the CWB court challenges and that Judge Douglas Campbell ruled in favour of the Friends of the CWB and the CWB. Some of the comments in the ruling demand attention:

    "...when advancing a significant change to an established management scheme, the failure to provide a meaningful opportunity for dissenting voices to be heard and accommodated, forces resort to legal means to have them heard. Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary."

    To use the judge's own terminology, this is an absurdity. He clearly has not been paying attention to the "CWB file" for the last 30 years or more. That’s not a criticism, just a fact. Those who have been paying attention know that there has been ample opportunity for dissenting voices to be heard on both sides of this issue. And that they have exploited that opportunity at every turn.

    Before you can "find a solution which meets the concerns of the majority", you have to determine who the majority is and what their concerns are. The CWB's plebiscite results have been presented as a clear indication of the majority's wishes. It is no such thing. Neither the question asked nor the voters’ list fulfills the requirement of determining the interests of all stakeholders. If Judge Campbell had been following the CWB issue, he would know like the rest of us that the idea of a plebiscite is nothing more than a red herring; you could never design a reasonable plebiscite that the CWB and its most fervent supporters would accept, let alone its results.

    When a list of CWB permit book holders is presented with the choice of a voluntary CWB (the dreaded dual market), only a clear minority supports the single desk. Arguing that a voluntary CWB will fail or that farmers don’t understand the question doesn't cut it. But, really, none of that matters anymore, because we’re no longer talking about farmers or grain marketing.

    Do Precedents Matter?

    All the discussion is around parliamentary process. Even when we talk about plebiscites, it’s not about farmers anymore – it’s about political processes. So, in that vein, we should take a look at another case, very similar to the CWB cases. Here are some relevant facts of a case heard by the Ontario Supreme Court, between The Canadian Taxpayers Federation (CTF) and the government of Ontario:

    In 1999, the Taxpayer Protection Act (TPA) was passed by the Ontario legislature, in which Section 2(1) reads:

    o A member of the Executive Council shall not include in a bill a provision that increases, or permits the increase of, a tax rate under a designated tax statute or that establishes a new tax unless,

    a) A referendum concerning the increase or the new tax is held under this Act before the bill is introduced in the Assembly; and
    b) The referendum authorizes the increase or the new tax.

    (Sound familiar?)

    In June 2004, the Ontario Minister of Finance introduced Bill 106 to amend the Income Tax Act. Even though Sec. 2(1) of the TPA of 1999 required it, no referendum was called. The CTF took it to court, seeking the courts to declare the Health Tax to be invalid because the government didn’t call for a referendum. Paragraphs 47-49 of the ruling are relevant to the CWB case (paraphrased, emphasis is mine):

    [47] <b>Nothing in the Act suggests that a referendum is required before the Act can be amended even if this amendment creates an exception to Section 2(1).</b>

    [48] ... even if the TPA had contained a provision that no exception to the referendum requirement contained in Section 2(1) could be enacted without the holding of a referendum, <b>this type of limit on a legislature’s sovereignty would not be binding.</b>

    [49] The courts will give effect to limits imposed on the legislature’s ability to amend its own statutes only where they constitute “manner and form” requirements. The Supreme Court of Canada in the reference Re Canada Assistance Plan set out what was necessary in order to impose an effective manner and form requirement. Applied to the present case the following would be required:

    a) <b>A clear statement of intent by the legislature that ... the legislature intended to bind itself or restrict the legislative powers of its members;</b>

    b) It would be contained in a statute that is constitutional or quasi-constitutional; and

    c) The statute would specify the manner and form to be followed by the legislature itself to effect the amendments. <b>It would not remit the decision to an entity not forming part of the legislative structure.</b>

    On “manner and form” requirements, it says the government would not give authority to change the Act to “an entity not forming part of the legislative structure” – in other words, not to farmers voting in a plebiscite.

    But there’s more. Section 13 of the Federal Interpretation Act sums it up quite nicely:

    <b>Every Act shall be construed as reserving to the Legislature the power of repealing or amending it, and of, revoking, restricting, or modifying any power, privilege or advantage thereby vested in or granted to any person or party, whenever the repeal, amendment, revocation, restriction or modification is considered by the Legislature to be required for the public good.</b>

    In other words, parliament has the ultimate power and authority to amend Acts. And can revoke the power given to anyone else (like farmers through a plebiscite) when amending.

    The last thing the grain markets need right now is more uncertainty. Judge Campbell’s ruling, when viewed side by side with the CTF vs Ontario government ruling, and Section 13 of the Federal Interpretations Act, is ambiguous at best, or even worse, just plain wrong. And the self-righteous chiding by the CWB supporting groups does nothing to make it more correct or decisive.

    Although the government is moving ahead as planned, all this legal wrangling is taking the focus away from what is right for the Western Canadian economy. Instead of debating about court proceedings and parliamentary procedures, we should be spending our time on new opportunities in the grain markets. As suggested by Minister Ritz, we should assume the Marketing Freedom for Grain Farmers Act will be enacted as planned. Let’s face it, if the appeal courts disagree with the government on this issue, we’ll have a much larger problem – an impotent Parliament.

    Only in Canada, you say? Pity.

    #2
    Excellent work John. A further point is that the
    CWB Act is not even legislation under
    AGRICULTURE. It has consistently been ruled
    by the Supreme Court as federal legislation under
    the constitutional head of TRADE AND
    COMMERCE.

    Comment


      #3
      Excellent info John. And just how many times did the government lawyers bring those very arguments and precedents to the judges attention. Did the Government lawyers prepare a "Brief of law" summarizing those thoughts? If John can come up with such logical defences; then why did the government lawyers not do the same? Does the governement still retain the same lawyers?
      Are these questions not extremely important?

      Comment


        #4
        Agreed with you two and John.

        Was this used in front of this so called judge?

        Who are the people the government used to combat the forces of oppression in winnipeg?

        Which was worse, the lawyers or the judgement?

        Comment


          #5
          This Judge had already had his report before he had even heard the case. It didnt matter what was presented to him, its all politics. He knows his ruling had no legal strength so he could say whatever he wanted. He was just rewarding the pinkos that got him the job.

          Comment


            #6
            There has never been any question that current governments can repeal and change existing legislation. Until this particular controversy, I am unaware of there being any question that governments can craft legislation so that certain procedural hoops have to be cleared before it can be repealed and changed by successive governments. If you want legislation to stick you are entitled to make it procedurally tougher to change it. Never impossible.

            The question before Justice Campbell was simply whether the process used by the Harper Government violated the rule of law in Canada on this particular fact situation. He found that it did. If he was wrong the Federal Court of Appeal and/or the Supreme Court of Canada will make the appropriate corrections.

            The irony is that the whole mess could have been avoided by repealing s. 47.1 of the CWB Act BEFORE bringing in Bill c-18. Not rocket science.

            Oneoff, I think a better question is who dropped the ball on this particular procedural no-brainer?

            Comment


              #7
              I don't think repealling 47.1 first would have made a difference. We would have seen the same lawsuit for the same reason.

              Comment


                #8
                Frank,

                Have you read s. 47.1? Here it is:

                "47.1 The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless
                (a) the Minister has consulted with the board about the exclusion or extension; and
                (b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister."

                Violation of s. 47.1 formed the basis of Justice Campbell's decision. If you repeal it first as a stand-alone there is no violation, real or imagined, of its provisions.

                If s. 47.1 no longer exists, then Bill c-18 cannot violate its provisions.

                Not rocket science, merely sequential procedural Parliamentary reality.

                Comment


                  #9
                  Oh by the way, it was not a lawsuit. It was a motion for a Declaration that Bill c-18 violated section 47.1 of the CWB Act and thus offended the Rule of Law in Canada. Justice Campbell was not asked for a remedy, just an opinion on the legality of the way the Harper Government had decided to proceed.

                  Gotta know the question to make sense of the answer.

                  Comment


                    #10
                    I fail to see how repealing 47.1 without first holding the so-called plebiscite that the lefties are so indignant about would have led to a different result.

                    Even if the government had done a plebiscite there'd still be lawsuits based on some kooky technicality. Doesn't anyone remember barley?

                    Comment


                      #11
                      The judge made it quite clear that he was primarily distressed by the lack of a plebiscite for what he considered to be a substantive change to the Act.

                      Removing any and all mention of a plebiscite from the Act for any purpose whatsoever would not have changed his mind. He would have made the same argument again.

                      He offered little more than a political opinion in his ruling, knowing full well that it would be turfed out by a higher court.

                      Comment


                        #12
                        Fransisco,

                        I tend to agree with you in principal.

                        TO say removal of 47.1 'First' would have solved the problem... does not change the fact the legislation removing 47.1 to avoid the vote is just as problematic as C18 itself.




                        Repeal







                        Abrogation











                        Clause 39 of C18 says, and I quote"

                        "39. The Canadian Wheat Board Act is repealed."

                        How can anyone say that 47.1 of the CWB Act will exist... when the CWB Act is being repealed upon the proclamation of C18? If 47.1 is repealed: 5 milliseconds, 5 seconds, 5 minutes, 5 months, or 5 years before C18 is proclaimed... how does it change anything in fact or in law???

                        http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5285088&F ile=138

                        Comment


                          #13
                          Here's how the judge handled the precedent from
                          stated above: '[49]      The courts will give effect
                          to limits imposed on the legislature’s ability to
                          amend its own statutes only where they
                          constitute “manner and form” requirements.'

                          and a stated requirement: "It [Parliament] would
                          not remit the decision to an entity [farmers]not
                          forming part of the legislative structure. 

                          In this case the judge dodged the issue:

                          "The Minister has attempted to argue that s 47.1
                          does not meet the requirements of a 'manner
                          and form' provision. I dismiss this argument and
                          find any debate on 'manner and form' is not
                          properly before the court for determination."

                          Those wanting marketing freedom should support
                          the government instead of playing into the hands
                          of Wells and Pallet et al by criticizing the
                          governments methods.

                          Comment


                            #14
                            Now Raven, I have been a Red Tory since you were in nappies. Parliament is run on form as well as function. Ignore the form and, as you can see, you risk screwing up the function. I certainly did not invent the idea.

                            "The Minister has attempted to argue that s 47.1 does not meet the requirements of a 'manner and form' provision. I dismiss this argument..."

                            So, the Feds chose to argue that 'manner and form' was not required instead of choosing to meet the requirements of 'manner and form'. All I am saying is that was clearly a bad decision. Justice Campbell also said:

                            "The present Applications are simple in nature; they are directed at an examination of the Minister's conduct with respect to the requirement of s. 47.1. The Applicants confirm that the validity of Bill C-18 and the validity and effects of any legislation which might become law as a result of Bill C-18 are not in issue in the present Applications."

                            If Justice Campbell's ruling on this issue is upheld on appeal then there will be more Applications and more legal wrangling. All of which could have been avoided.

                            Personally I don't like to see farm folk screwed in any fashion, much less through Legislative incompetence. Maybe the FCA and SCC will make it all go away and the sun will shine on a brighter future. Maybe not. Stupid, in my view, to take a clearly unnecessary risk.

                            Comment


                              #15
                              Justice Campbell made no ruling. He issued a declaration.

                              The legal profession thinks he's a joke after this fiasco. He was likely bribed/strongarmed by someone.

                              Cpallett it is interesting how you showed up on this site after the court case and like to decipher the legalese. What's your deal?

                              Comment

                              • Reply to this Thread
                              • Return to Topic List
                              Working...