Between a rock and a hard place: CWB, the Criminal Code of Canada and Political Expediency

***Author’s Note: The Government moved faster on this issue then I anticipated. There is a follow-up piece that will be posted within the next 48 hours***

“Disobeying a statute

126. (1) Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” 

  • Criminal Code of Canada, (R.S.C., 1985, c. C-46)

I have to admit that I do not often read legislation, let alone proposed legislation. Consequently before the recent court ruling, I had not read Canadian Wheat Board Act, RSC 1985, c C-24, nor did I look at the Conservative Bill, known as Bill C-18: An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts. I just assumed that the Federal Government had done its homework. That is lawyers had looked at the act and determined that it could be amended. Yet, it seems that I was wrong. 

Judge Campbell of the Canadian Federal Court, after some thought, decided that the Federal Government has not followed the law as it was set out. While, the Minister argued that a breach declaration should not be granted because their effect would be meaningless, Judge Campbell said that “there are two meaningful effects of granting the Breach Declarations”. In my mind, the second reason is most telling. It reads as follows: “The second and most important effect is that the Minister will be held accountable for his disregard for the rule of law.”

I was both inspired and enlightened to read this sentence. That simple sentence made me realize that the Conservative Minister is between a political rock and a legal hard place. The rock is easy to see. Agriculture Minister Hon. Gerry Ritz and the Prime Minister have promised the Conservative Base and a number of Libertarians that they will get rid of the Canadian Wheat Board. The Government said that it was easy and all they needed was a majority of MP’s that agreed with them. They got that. Imagine the response from those same supporters, if the Supreme Court said that the Law was clear: a plebiscite was needed because that is what the Law required. They would be livid and would begin to question the competence of their Prime Minister. The issue of competence will be highlighted even further, since most opposition politicians recommended to the government that they refer the case to the Supreme Court of Canada.  

The Legal Hard Place is hard to see, but it is no less relevant. If the Agriculture Minister moves forward, he could be held “accountable for his disregard for the rule of law”. My question is would that ‘disregard’ trigger section 126 or section 127 of the Criminal Code of Canada? For under the Criminal Code, disobeying a statute and/or disobeying the order of a court is a criminal offence. The question is does this act of disobedience constitute a criminal act?

Now, let me be clear, I am not a lawyer. So these are only opinions. However, I think that they are valid and I will test their validity here. The first problem we have is defining what constitutes a crime. The Canadian school system taught me that a criminal act requires two conditions: a guilty mind (mens rea) and a guilty act (actus reus). Or put differently, a judge and/or jury must feel that an act is so heinous that a person charged with a crime must have thought about the crime, planned to commit it and then acted on those plans.

This is why, for example, self-defence is a valid criminal defence in a murder trial. While, you might have committed a guilty act, you did not have a guilty mind. In other words, you might have killed someone but that was only done because they were attempting to kill you. So in any other situation, the accused would have left the victim alone. So let us apply the lesson learned.  

The Agriculture Minister was clearly told that he was breaching the Canadian Wheat Board Act. On two counts, Judge Campbell found that “it is fair and just to issue the Breach Declaration”. So if a higher court does not strike down Judge Campbell’s decision, would the Minister not be acting against Canadian Law? In my mind, contravening the judgement of a court must be in itself a guilty act and I can show that in two ways. Firstly, one can look towards the Criminal Code. Section 127 of the Criminal Code makes it illegal to breach a court order.

Secondly, we can look towards an example. The recent Occupy Movements in North America can illustrate this reality. After the New York example, throughout North America, people started to “occupy” public spaces. The occupations violated a myriad of municipal regulations. Yet, the occupations were allowed to continue. This flew in the face of a number of voices. Christie Blatchford , in a piece entitled “Law counts, cause doesn’t in Occupy movement”, argued this.

“For me, the only issue is the rule of law, and, given my interest in and familiarity with the native dispute in Caledonia, Ont., this situation seems strikingly similar.

The Caledonia occupation began on Feb. 28, 2006, when a handful of protesters — women, mostly — from the nearby Six Nations reserve blocked the entrance to a housing development then under construction.

The Ontario Provincial Police, which are the local force, immediately adopted a hands-off, low-key, live-and-let-live approach. By day two, officers had been instructed to refer to the occupation as the “reclamation,” and stood by as observers when workers tried to get onto the site. Politicians and police and local leaders urged the workers, the developers and townspeople to just be patient. 

Eventually, the developers went to the courts — just as the City of Toronto has done this week, with a decision expected by Monday — to get an injunction ordering the police to remove the occupiers, whose numbers, while changing daily, were nonetheless steadily growing.”

However, municipal governments waited to ensure that all legal and constitutional issues had been cleared up before moving in for arrests. Once court orders were issued declaring the occupations illegal, the Occupy Movement experienced a myriad of different reactions. Some portions of the Movement, like many in BC, decided to obey the courts. In Toronto, Eleven people were arrested, but there were no violent clashes. Most were fined $75 for trespassing and released.

In Calgary, though, the situation is more extreme. As of December 6th, 2011, some of Occupy Calgary left after the first round of legal action. However, others remained. So it was not a surprise that CTV.ca reported – in a piece called “Judge grants injunction against Occupy Calgary protesters” provided by Canadian Press – that Justice Neil Wittmann of Alberta Court of Queen’s Bench ordered that the tents needed to be removed by 2pm on December 6th. Furthermore, the article noted that: 

The injunction also forbids the protesters from camping in any park or land owned by the city without a permit.

The campers will face contempt of court charges if they fail to obey.” 

So by staying in the Park, the Calgary Occupiers had violated a court order. Subsequently, the Occupiers also violated the criminal code. Calgary Occupiers committed the actus reas by not moving. The “guilty mind” comes from knowing that they are going to violate the law; for the Courts had “cleared up” any confusion surrounding the political rights of the protesters. In court cases, throughout the Country, Occupiers were told that their act was one of civil disobedience and not political action. So the occupiers could be charged.

Would the same rules not be true of a Minister who ignores a decision of the Federal Court? For the court has already told the Minister that he is not proceeding legally. So the guilty act could be introducing a bill into the House or continuing on the same track after the Courts have told the Minister that he was in the wrong. By not appealing the case, one could argue that the Minister has a guilty mind. Or put differently, the Minister did not want to take no for an answer. In a piece written for the Winnipeg Free Press, republished by Canada.com – called Federal Court ruling on wheat board bill won’t alter decision: Ritz (December 7, 2011) – Minister Ritz is quoted. 

Ritz said the federal government is “disappointed with the decision” and the government plans to appeal. But the minister dismissed the significance of the judge’s ruling, saying “this declaration will have no effect on continuing to move forward for freedom for western Canadian farmers.”

Those words do not sound like the ones’ of a repentant man. If one is not convinced, they can look for a different thought. For example, the guilty thought could be continuing to push through the legislation even though the Federal Court has said that it breaches the Canadian Wheat Board Act, RSC 1985. The Minister could have easily waited for the appeals process to be completed or the Minister could have forwarded the case to the Supreme Court under the Reference Review process. Either way, there were legal options for the Minister to take. But he ignored them. Therefore, one could easily argue that a prima facia for violation of the Criminal Code of Canada may be forwarded.

For me, this is where it becomes interesting because the Minister can admit that he did not act diligently by providing Parliament with a legal bill. Since the present bill is so illegal that a Judge noted that fact in his ruling. Alternatively, the Minister Acts illegally meaning that the Conservative Government will give us another Constitutional Quandary. Since, we know that the Crown is constitutionally obliged to follow the advice provided by Parliament; we know that the Crown can’t be charged for violating the act.

However, if the Minister disobeys a statute, he can be charged. One could argue that the Minister who provides the Governor General with advice on the subject of Royal Assent (i.e. the Prime Minister) may also be liable for court action. A court has already said that the Minister was in breach of the law. So the Harper Government is left with a number of choices and none of them is good.

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