Do you use field yield mapping software?

[liberty]

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.

[Tom4Wildrose]

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 The Canadian Wheat Board Act is repealed."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 when the CWB Act is being repealed upon the proclamation of C18? If 47.1 is repealed: 5 milliseconds, 5 seconds, 5 minutes, 5 months, or 5 years before C18 is proclaimed...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

[Raven]

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.

[cpallett]

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.

[Braveheart]

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?

[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.