The courts aren't always right

[Tom4Wildrose]

Braveheart,

It is good to have both sides of the picture... this really does give a different perspective

Short cuts work some times... other times they cause much extra work.

I get it. He didn't make a judgement either way... just that there is risk in proceeding in a form that could bite us back... the Lord knows that has happened often enough!!!

[cpallett]

Braveheart my deal is government accountability (an oxymoron, I know).

I am an expert in Crown liability, especially federal, but I have taken on assorted provinces as requested or required by hard-working farm folk.

Farmers and lawyers on both sides going back several generations. Don't know what that makes me, but normal doesn't come to mind.

[Raven]

Reference Re Canada Assistance Plan (B.C.),
[1991] 2 S.C.R. 525. (unanimous Supreme Court)

(Vic Toews, for the intervener the Attorney
General of Manitoba.)

"The federal government did not act illegally in
invoking the power of Parliament to amend the
Plan without obtaining the consent of British
Columbia." (substitute farmers in Trade and
Commerce legislation)

"The doctrine of legitimate expectations does not
create substantive rights ‑‑ in this case, a
substantive right to veto proposed federal
legislation."

"The government, which is an integral part of this
process, is thus not constrained by the doctrine
from introducing a bill to Parliament. A restraint
on the executive in the introduction of legislation
would place a fetter on the sovereignty of
Parliament itself."

 "It is also fundamental to our system of
government that a government is not bound by
the undertakings of its                
 predecessor."

"Where a statute is of a constitutional nature and
governs legislation generally, rather than dealing
with a specific statute, it can impose
requirements as to manner and form.  But where,
as in this case, a statute has no constitutional
nature, it will be very unlikely to evidence an
intention of the legislative body to bind itself in
the future."

" Moreover, any "manner and form" requirement
in an ordinary statute must overcome the clear
words of s. 42(1) of the Interpretation Act. This
provision requires that federal statutes ordinarily
be interpreted to accord with the doctrine of
parliamentary sovereignty. This doctrine prevents
a legislative body from binding itself as to the
substance of its future legislation."

 "If a statute is neither ultra vires nor contrary to
the Canadian Charter of Rights and Freedoms,
the courts have no jurisdiction to supervise the
exercise of legislative power."

A tough obstacle for a CWB friendly court to have
to wiggle through.

[bucket]

Everyone keeps pointing to 47.1.

That part of the acts states something about adding or subtracting grains from the cwb.

The government is not adding or subtracting grains.

Why does everyone try to read something else into it?

The judge either can't read or was bribed and either of those concern me more.

[cpallett]

Bucket,

What we are trying to do is not read something else into it, but rather get you folks to read what the section actually says and what Justice Campbell actually said. Tougher than it sounds.

"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....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."

So, you cannot introduce a Bill into Parliament that would exclude wheat or barley from the provisions of Part IV of the CWB Act without a vote on the matter by the "producers of the grain."

Seems pretty obvious that a Bill that repeals the entire CWB Act takes both wheat and barley out of the provisions of Part IV of that Act, now doesn't it? Note that section 47.1 says that you cannot INTRODUCE such a Bill without consultation and a vote.

As Raven wrote:

"If a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the
exercise of legislative power."

So, Ralph Goodale and the boys prima facie had the right to insert 47.1 into the CWB Act as nobody has yet successfully challenged its validity. According to the law Raven cited, s. 47.1 is binding. Section 47.1 clearly requires one of two techniques be employed before Bill C-18 be introduced so that the introduction of Bill C-18 into Parliament does not violate s. 47.1 and thus offend the Rule of Law.

1. Repeal section 47.1 as a stand-alone. No grain is being added or subtracted so no consultation or vote is required. Section 47.1 disappears and you are then free to bring in C-18 without consultation or vote; or,

2. Consult and hold a vote. If the "producers of the grain" vote in favour, go ahead with C-18. Note that the Minister gets to set the terms on the consultation and vote.

What we have now is a Declaration by the Federal Court that C-18 is in breach of 47.1 (and thus in violation of the Rule of Law). And, oh by the way, it clearly is. What this means as a practical matter is yet to be determined. We've never gone down this particular road as far as I know.

As Justice Campbell clearly said, Parliament is free to go ahead with C-18; he did not have the jurisdiction, and was not asked, to do anything about it. He was just asked whether C-18 violated the Rule of Law.

So what? I don't know. We'll have to wait and see.

This is certainly not a case of Parliament being fettered in changing/repealing existing law. This IS clearly a case of Parliament failing, for whatever reason, to take the easy and obvious procedural steps necessary to avoid the whole issue.

What do the Courts do when Parliament has been obviously blind, pigheaded or stubborn about a Rule of Law issue? Whack 'em over the head? Overrule Justice Campbell? Better be careful what you wish for there, for if the Rule of Law does not apply that is a can of worms that ought not to be opened.

For example, we may set the Quebec Referendum sovereignty terms, but Quebec will not be bound by them. After all, they did not sign the Constitution. Be careful how you tread. The obvious can be very dangerous indeed.

One thing is clear to me, if C-18 results in a demonstrable net loss of income for Western grain producers there is now a cause of action in a class action against the Feds to recover those losses. Not, I think, what Minister Ritz intended but a potential safety net for Western grain producers. You should all be happy about that.

I doubt there will be losses, so it will likely remain an entertaining afterthought. No telling what other Applications to the Court will follow C-18, however.

May you live in interesting times.

[bucket]

Interesting that you bring up Quebec.

Imagine if the rest of Canada decided they did not need their language rights and where we would be today.

In other words lets say Canada (the cwb) ignored the rights of the minority (quebec/those that want marketing freedom).

Just for some perspective. Its not right to ignore the rights of the minority in a country like Canada.

[cpallett]

Bucket,

What we are trying to do is not read something else into it, but rather get you folks to read what the section actually says and what Justice Campbell actually said. Tougher than it sounds.

"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....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."

So, you cannot introduce a Bill into Parliament that would exclude wheat or barley from the provisions of Part IV of the CWB Act without a vote on the matter by the "producers of the grain."

Seems pretty obvious that a Bill that repeals the entire CWB Act takes both wheat and barley out of the provisions of Part IV of that Act, now doesn't it? Note that section 47.1 says that you cannot INTRODUCE such a Bill without consultation and a vote.

As Raven wrote:

"If a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the
exercise of legislative power."

So, Ralph Goodale and the boys prima facie had the right to insert 47.1 into the CWB Act as nobody has yet successfully challenged its validity. According to the law Raven cited, s. 47.1 is binding. Section 47.1 clearly requires one of two techniques be employed before Bill C-18 be introduced so that the introduction of Bill C-18 into Parliament does not violate s. 47.1 and thus offend the Rule of Law.

1. Repeal section 47.1 as a stand-alone. No grain is being added or subtracted so no consultation or vote is required. Section 47.1 disappears and you are then free to bring in C-18 without consultation or vote; or,

2. Consult and hold a vote. If the "producers of the grain" vote in favour, go ahead with C-18. Note that the Minister gets to set the terms on the consultation and vote.

What we have now is a Declaration by the Federal Court that C-18 is in breach of 47.1 (and thus in violation of the Rule of Law). And, oh by the way, it clearly is. What this means as a practical matter is yet to be determined. We've never gone down this particular road as far as I know.

As Justice Campbell clearly said, Parliament is free to go ahead with C-18; he did not have the jurisdiction, and was not asked, to do anything about it. He was just asked whether C-18 violated the Rule of Law.

So what? I don't know. We'll have to wait and see.

This is certainly not a case of Parliament being fettered in changing/repealing existing law. This IS clearly a case of Parliament failing, for whatever reason, to take the easy and obvious procedural steps necessary to avoid the whole issue.

What do the Courts do when Parliament has been obviously blind, pigheaded or stubborn about a Rule of Law issue? Whack 'em over the head? Overrule Justice Campbell? Better be careful what you wish for there, for if the Rule of Law does not apply that is a can of worms that ought not to be opened.

For example, we may set the Quebec Referendum sovereignty terms, but Quebec will not be bound by them. After all, they did not sign the Constitution. Be careful how you tread. The obvious can be very dangerous indeed.

One thing is clear to me, if C-18 results in a demonstrable net loss of income for Western grain producers there is now a cause of action in a class action against the Feds to recover those losses. Not, I think, what Minister Ritz intended but a potential safety net for Western grain producers. You should all be happy about that.

I doubt there will be losses, so it will likely remain an entertaining afterthought. No telling what other Applications to the Court will follow C-18, however.

May you live in interesting times.

[vvalk]

How did the judge write a 25 page report
overnight? Maybe it was already written?

[cpallett]

Bucket,

Sorry about the double post.

You are absolutely right. My work is about supporting rights, especially minority rights. That is exactly why I am a bit paranoid about the Courts racing to overturn a Rule of Law issue. The Rule of Law is the best guarantee of freedom in Canada. Undercut the Rule of Law and you risk undercutting everything we and our forefathers have worked for.

Potentially very dangerous stuff.

Justice Campbell has taken a lot of heat for what many call a political decision, but in fairness he was put in a very difficult position by what appears to be a simple and straightforward question with a simple and straightforward answer, at least on the words of the statute. No place to run on the Bench. You have to work with what you are given.

I personally admire his guts.

[cpallett]

vvalk,

Only 20 pages on PDF, the rest is style of cause, listing of counsel, etc.

Of those 20 pages, approximately 13 pages are quotes. About seven pages of actual words written by Justice Campbell in a 24 hour period. Given that it is commonplace to provide the judge with an electronic version of your argument, he may have cut and pasted some of that as well.

Plus, he would have read all the material submitted by the parties well in advance of walking into the Courtroom.

[dmlfarmer]

cpallett:
thanks for adding your opinions to this list. It is apparent you are knowledgeable and are willing to look at any situation from all angles. Given your willingess to contribute factually rather than retorically as most posters do I hope you continue to post as it may encourage me to follow this forum on a more regular basis.
I too admire Justice Campbell for having the backbone to rule on the law rather than taking the easy way out and submitting to public and political pressure. The law, whether right or wrong, was clear and he ruled appropriately on it. And he did not overstep his authority by placing an injunction and in fact warned the parties that his declaration may have little effect on the course of passage of Bill C-18. We need more Justices like Campbell rather than politicizing the bench.

[jdepape]

Cpallett:

I see what you mean about the Rule of Law.
What are your thoughts on the 2004 ruling by J.
Roleau in Ontario, where the CTF argued that the
Ontario government broke the law by not holding
a referendum on the same "manner and form"
argument put forward by the Friends of the CWB.  

From him ruling:

[47] 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).  

[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, this type of
limit on a legislature’s sovereignty would not be
binding. 
 
[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) A clear statement of intent by the legislature
that ... the legislature intended to bind itself or
restrict the legislative powers of its members; 
 
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. It would not remit the
decision to an entity not forming part of the
legislative structure.  

It seems to me that all these factors apply to the
CWB Act.  How is it that the rule of law was not an
issue in the Ontario case but it is here?

[wilagro]

jdepape: You are just another SORE LOSER. Get over it...Judge Campbell made a very good call on this one and nobody should condemn him for any part of it.

You'll get your precious "marketing freedom" soon so suck it up and WAIT.

Ritz got chided for being the incompetent that he is...that probably riles you more than anything. Too bad if the truth hurts.

[jdepape]

Wilagro
Not sure how I can get my "precious marketing
freedom" and be a sore loser at the same time.

Legal wranglings don't usually interest me but I
find this one fascinating. One one side we have
the "rule of law" and on the other we have the
"supremacy of parliament".

How can you not be intrigued?

[jdepape]

Wilagro
Not sure how I can get my "precious marketing
freedom" and be a sore loser at the same time.

Legal wranglings don't usually interest me but I
find this one fascinating. One one side we have
the "rule of law" and on the other we have the
"supremacy of parliament".

How can you not be intrigued?