Current Legal Issues

This section will include my comments and news reports on various current legal issues which interest me. The question of whether our court system is as efficient as it needs to be to maintain a high level of public trust and support is one of several important issues of interest.

Simply stated, laws are the rules we live by which will be enforced by state power. This is done by court orders directing that individuals be imprisoned, or otherwise punished, in criminal cases or have their money and property taken from them to satisfy civil judgments such as the awarding of money for harm they have caused to others. Courts and the law work most effectively when people have a very high level of trust in law makers, law enforcement and the courts to do the right thing. This section will focus on issues that show how difficult it can be to use the law to “do the right thing” in the real world.

It is often said that “justice delayed is justice denied”. While the courts and law enforcement have never operated as quickly as some might like, others prefer to postpone the day of judgment for as long as possible. Delay can be a winning strategy in a case otherwise bound to lose. There are virtually no consequences that may fall on the party creating and benefiting from delay in the judicial process today.

There are ways of moving cases forward far more quickly than the legal process permits. Major commercial disputes are usually resolved in private arbitrations which can be finalized quickly to meet the needs of the business interests involved in the dispute. However, there is little that can be done to speed up the civil litigation process in Canada when the party being sued wants to create delay because that party has no viable defense. Even when a matter has been adjudicated upon by a court following a trial, various appeals are usually available which can easily consume several more years even when the appeal has no merit.

Some U.S. jurisdictions do have a mechanisms that can move things along. In one of the many cases facing him former U.S. President, Donald Trump, has been ordered to post a very large security bond for the amounts he has been ordered to pay by juries if he intends to appeal those decisions. This is intended to discourage appeals on weak grounds. However, he has disputed the amount and the procedures for posting this bond thereby creating further delay. His efforts to delay the legal process in all the legal actions involving him are now a factor in the upcoming election for the office of President of the most powerful country on the planet. While the Trump example provides a very colorful and entertaining spectacle I intend to focus on cases closer to home where meritless delay tactics create real injustice and undermine our faith in the law.

TO BE CONTINUED…..

The Rule of Law is a Very Fragile Thing

People in real democracies are governed by the rule of law and not by the rule of a king or dictator. That is, we in Canada are required to guide our conduct by the laws established by a democratic process after open debate in an open Parliament. We are not governed by the arbitrary wishes of an individual with complete discretion to make any decision they want. Human nature being what it is, it is not an easy task to identify the precise boundaries of the law but there are boundaries and their exact location is decided on a case by case basis in our courts under our common law system or under a statute enacted by Parliament. In a democracy we establish our laws through a democratic process in which law makers are accountable to voters who have selected those law-makers through free and fair elections. Government authority rests on our consent. Each person has one vote and the laws apply to all equally. However elections create minorities. Now we get to the hard part. These minorities have to accept and respect the laws established by the majority. When people are not willing to act lawfully a democracy breaks down.

The most famous recent breach of the rule of law was triggered by then president Trump when he incited a crowd of his supporters to attack the US Capitol Building on January 6, 2021. Recent Canadian history does not provide similarly glaring and extreme examples of the breach of rule of law. However examples can easily be found. I refer elsewhere to the southern Alberta farmers who went to jail for filing false customs documentation to facilitate the export of wheat contrary to the Wheat Board Act. Those farmers, egged on by Stephen Harper, then President of the National Citizens Coalition, refused to pay the fines assessed for their breach of the Customs Act and subsequently spent time in jail. The activities around these breaches of law and the surrounding publicity provided Stephen Harper with the national platform on which he started his political career.

Harper was finally, after 15 years, able to repay his political debt to the farmers who were imprisoned by granting them “pardons” in a well publicized ceremony on August 1, 2012. The following Buzzfeed article by Lois Ross published several years later after deep research explains;

Posted on Aug 21, 2015

The Inside Story Of the Conservatives' Controversial Decision To Pardon 10 Farmers

New documents show frustrated bureaucrats didn't know who or what they were pardoning until until the last minute. One high-level public servant says the debacle pushed her to eventually leave her job.

by Emma Loop BuzzFeed News Reporter, Canada

Stephen Harper has presented himself as a champion of tough-on-crime politics. “Proven leadership for a safer Canada,” the blue-toned wrap on his campaign bus says in bold.

There was one time, though, when the prime minister loosened the grip of the law on a group of offenders.

In August 2012, Harper announced that the Conservative government had officially dismantled the Canadian Wheat Board, a federal agency that brokered export deals for barley and wheat farmers. He also made the surprise announcement that he was unsheathing "an ancient power" to pardon a group of farmers who had, as Harper said, simply been protesting the monopolistic nature of the Wheat Board.

"These people were not criminals," Harper said.

Some members of Farmers for Justice, as the small group called itself, were charged under the Customs Act for trying to bring their grain to the United States illegally. Some spent time in jail for refusing to pay the resulting fines.

The government would later say that it had granted the farmers an "ordinary pardon," a rarely used form of clemency under the Royal Prerogative for Mercy.

At the time of the announcement, tens of thousands of traditional pardon requests sat unanswered in a backlog of the Conservative government's own creation.

The pardoned farmers couldn't all be identified at the time because of privacy laws. Recently, the Parole Board of Canada revealed that 10 farmers received pardons.

The farmers who came forward on their own accord, though, expressed immense relief at having their records sealed.

But questions lingered about the way in which the government went about granting the pardons.

Now, for the first time, documents obtained by BuzzFeed Canada show the prime minister's hand in having the farmers pardoned, and how some officials — including the public safety minister — pushed back.

The law states that anyone who wants a pardon — now called a record suspension — must apply to the Parole Board of Canada and pay a $631 fee.

Clemency is more typically used to clear the records of those who were wrongly convicted. But in very rare cases, the governor general, on recommendation of the public safety minister, can grant it to deserving applicants who've exhausted all other legal remedies.

The farmers had applied for neither a record suspension nor clemency. Political offices approached them, asking if they wanted it.

One high-level bureaucrat involved in the pardons told BuzzFeed Canada that the process blurred the lines between public service and politics.

"I found it very distressing," said Mary Campbell, who retired as director general of corrections and criminal justice in 2013.

Campbell said it pushed her to leave Public Safety Canada after serving for nearly three decades.

"This was a situation that went very close to the line of the instructions being difficult to accept," she said in an interview.

Hundreds of emails and documents obtained through access to information laws show bureaucrats from at least seven government departments and agencies struggled to make the pardons happen while battling a void of information, multiple legal hurdles, and political pressure to have it done before the prime minister's announcement.

This is an inside look at the messy, politicized process that led to the pardons.

November 23, 2011: Saskatchewan MP David Anderson sends a letter to Harper after speaking with him a month earlier at Question Period practice.

BuzzFeed Canada

“I approached you about the possibility of our government pardoning (on August 1, 2012) the [REDACTED] grain farmers who were convicted of violating the Canadian Wheat Board,” the letter reads. "The 10-year period has passed since the farmers were first convicted and since the Wheat Board Act will be repealed, it makes little sense for them to have a criminal record."

December 21, 2011: "David, Keep reminding me about this!" the prime minister writes at the end of his response to Anderson.

Harper's connection to the farmers goes back to his days as the head of a lobby group called the National Citizens Coalition.

“Harper loved the anti-government style of the Farmers for Justice,” farmer Henry Kuhl told the Globe and Mail. “And he could smell votes.”

Five months later: Then-Public Safety Minister Vic Toews seems to shut the idea down. He writes Anderson a letter saying that anyone who wants a pardon must apply for it: "The eligibility criteria for a pardon is a matter of law."

"As you may know, the Parole Board of Canada (PBC) is an independent administrative tribunal with the exclusive authority for making pardon decisions under the Criminal Records Act (CRA)," the letter reads.

Early July 2012: "Grain Marketing Freedom Day," as the Tories would dub it, is less than a month away. Despite Toews' letter two months earlier, word has come down to public servants that the farmers must be pardoned — and fast.

Asked about the sudden change in direction, Campbell pointed to the Prime Minister's Office's control over federal institutions: “It’s perhaps more apparent given what has been coming out in the last week or so at the Duffy trial...that PMO exercised a lot of authority."

July 12: The bureaucrats are confused as to what kind of pardon they're supposed to be pursuing, since the farmers don't qualify for a "free pardon" — a declaration of innocence.

BuzzFeed Canada has learned that officials initially told the government that a record suspension would be the most appropriate for the farmers, but that those above rejected the idea, saying the word "pardon" must be used.

Lengthy, highly redacted correspondence between senior lawyers at Public Safety Canada, the Department of Justice, Privy Council Office, the Parole Board of Canada, and the RCMP continue throughout the month.

July 13: Public servants are frustrated they still don't know who they're supposed to be pardoning. "Someone, somewhere has to provide us with the actual names and birthdates of the individuals," writes Richard Clair, an executive at the parole board.

Since none of the farmers applied for the pardons, the minister's office is responsible for finding and providing the farmers' information.

Three days later, Tom Jarmyn, a lawyer working in Toews' office, provides some, but not all of the names.

"PBC is still struggling with process," Campbell responds.

July 19: The bureaucrats still don't know which offences they're pardoning.

Without the names and birthdates of the offenders — or their consent — no one has been able to search CPIC, a national police database.

"Time is extremely short and the Board cannot do what it needs to do without knowing we have the consent of the [REDACTED] to do the CPIC check to verify their records (otherwise we don't know what we're pardoning)," writes Daryl Churney, director of corrections policy at Public Safety Canada.

A parole board employee notes that the charges might not even show up in CPIC, since they're not criminal. Emails suggest that was the case: The RCMP had to resort to searching small police detachments for the records, since they showed up neither in the force's own national database nor CPIC.

July 20: "Honestly I wish I could change the channel, as I'm sure you do too," Churney writes to a colleague at the parole board.

Churney laments that the farmers will be giving verbal consent, "but at this point I think we have to take what we can get."

In the days that follow, the proposal is en route to the minister — but not all the farmers are getting pardons.

"The Minister's Office received verbal consent to proceed with everyone on the list for the above-noted pardons but [REDACTED]," notes one email. "Please complete the process forthwith for the remaining [REDACTED]."

Campbell told BuzzFeed Canada there were three farmers who "were disqualified for various reasons."

"Of course, when you're issuing any kind of pardon, you want to be very careful about what part of the record, if there's more than one part, that you are pardoning," she said. "There were apparently some issues around that."

July 27: A communications manager at Public Safety Canada sends Toews' office talking points for the prime minister, to be approved by his office and PCO.

BuzzFeed Canada

The series of questions and answers, meant to mimic what reporters might ask, note that "these individuals are not receiving a pardon due to innocence or a free pardon."

A comment in the margin also notes that the parole board doesn't know how many "ordinary" pardons have ever been granted.

Mike Mueller, a political staffer in Toews' office, later tells the bureaucrats that "all media calls on this should be flagged to myself."

August 1: Immediately after Harper's event, Churney sends Campbell, assistant deputy minister Shawn Tupper, and lawyer Ian Bradley an email with the subject line: "Go to CTV News now."

"Was it the PM? What did he say?" Tupper asks.

"Western farmers should have the same freedom as other farmers, the backbone of our economy, we've now fulfilled a solemn promise, yada, yada," Churney responds. "I'd like to thank a number of people for making this happen, Gerry Ritz, Mr. Anderson, and a bunch of farmers.

"No thanks for Shawn, Mary or Daryl."

"Or Vic?" Tupper writes.

August 3: The public servants do as they're told: They send all questions from reporters to Mueller.

Meanwhile, bureaucrats continue to try to figure out the details.

In one email chain, they discuss whether the pardons were granted by the governor general or cabinet, and whether cabinet can even pardon someone convicted of a non-criminal offence. Campbell pulls up the original letters patent in which the governor general's clemency powers lie to find an answer.

Three years later, political staff are still taking media requests to Public Safety Canada about the pardons.

The department sent BuzzFeed Canada's questions to now-Minister Steven Blaney's office without providing its own response.

Then we received an email from the Conservative Party of Canada. Spokesperson Meghan Murdoch attributed the response to Agriculture Minister Gerry Ritz.

It did not answer any of our questions; rather, it repeated — mostly verbatim — the speech Harper gave in 2012.

As for Campbell, she took her exit less than a year after the pardons. She said it was one of only two occasions over her career where she felt she was "pushed too close" to what she considered was "proper for a public servant."

"Some public servants will make a different choice and they'll start brown-enveloping," she said. "My view was always that I thought you had to serve honourably as a public servant or get out.”

And get out she did. While the granting of these pardons may seem insignificant, the issue clearly displays Harpers attitude that the law is what he says it is when he can bully the Department of Justice into “blessing” his wishes.

Harpers tactic of defying the law was on display again in January and February of 2022, when a loosely affiliated coalition of western seperatists, anti-vaxxers and others, inspired by Trumps followers, held an illegal blockade in in front of our Parliament Buildings for about 5 weeks. Some in this group even flew the swastika and the confederate flag but the organizers must have realized this was a bad look and shut it down quickly.

It is of course a democratic right to protest peacefully and lawfully. We often see groups camped on the grounds of the legislative building or marching in the streets to draw attention to their cause. However the Freedom Convoy as they were called blockaded Ottawa’s streets to ordinary traffic and created a nuisance with the blasting of air horns and the like thus breaking the law. More seriously, a companion group had blockaded the border at Coutts, Alberta. Four members of this group were charged after the discovery of a large number of deadly weapons in their possession. This group had apparently planned to use the guns to support their protest if they felt a need for that. That small group was charged and several individuals were recently convicted and given jail sentences of 6 years.

Members of the Conservative Party of Canada including their leader Pierre Poilievre often visited the protest site bringing donuts and moral support to the blockade. There can be no doubt that the presence and encouragement of political leaders like Pierre Poilievre in support of the protest gave it more power and some appearance of legitimacy. Law enforcement and our court system were of little assistance in bringing an end to this this protest. The rule of law is a fragile thing.

Poilievre’s justification for his actions was, like Harpers, that he was simply supporting “freedom fighters.”It is hard to argue against freedom but it remains unclear whether the group was fighting for anything more than freedom to refuse a generally recognized health remedy in a pandemic situation. In reality the freedom fighters were fighting for the freedom to go unvaccinated onto aircraft or to their place of employment or any other public place risking infection to others. In other words, they wanted the freedom to ignore public health measures and create a very real and potentially deadly risk for everyone else. Most Canadians agreed this group of “freedom” fighters were actually fighting for “freedumb”.

I intend to spend more time discussing how actions like these by public figures erodes our respect for the rule of law. When governments take the attitude that the only real limit on their use of power is defined by what they think they can get away with and anyone who objects can take them to court. In court, as discussed elsewhere, the Department of Justice can find a way to use rules of court to delay any dispute for a very long time, if directed to do so.

10 Years After

August 1, 2025 will mark the 10th anniversary of the day on which the Harper government gave away the Wheat Board and, with that, surrendered the bedrock ensuring Canada’s food sovereignty. The upcoming anniversary offers a great opportunity for prairie farmers to ask again that Canadas government to look into the question of exactly how it was given away. I say “given away” because there is no evidence on the public record that the Government of Canada was ever paid a single cent for the Wheat Board even though it had very substantial assets including 2 Great Lakes bulk carriers, a number of recently built high throughput country elevators, over 3000 rail cars, its office building in Winnipeg and according to one report, “a lot of money in the bank”.

Prior to the give-away Canada had been in discussions with a farm group, Farmers of North America, which had expressed an interest in acquiring the Wheat Board and its assets. FNA had even secured the assurance of significant financing for their acquisition from Laurentian Bank of Canada. They were apparently well into those discussions when Canada withdrew abruptly from the negotiations. Not long after that, Minister Ritz announced in a lavish press conference held at the Hotel Fort Garry in Winnipeg that G3 Canada Limited (Saudi Arabia and Bunge) had acquired the Wheat Board and its assets effective August 1, 2015. At no point during that press conference, which I attended, was a sale price ever disclosed. Three days later Prime Minister Harper called a general election.

An extensive search through Canada’s public accounts does not indicate receipt by Canada of any payment related to the disposal of the Wheat Board. At this point I hasten to add that G3 appears to have acted entirely appropriately when receiving this gift. Further, G3 has made substantial investments in grain handling infrastructure on the prairies and built a major new terminal elevator at the port of Vancouver greatly expanding Canada’s export capacity. G3 Canada Limited, which is now 75 % owned by the Kingdom of Saudi Arabia, greatly enhances that country’s own food security needs with this acquisition showing commendable foresight by creating what appears to be its own single desk system for securing food supplies globally. As an aside it is worth noting that the Saudi government has also been investing heavily in solar and wind energy production even though they have an endless supply of the world’s most cheaply oil available resources. (Do they know something the Alberta government doesn’t?)

Not surprisingly, after seeing this hasty disposal of the Wheat Board and its assets, Wheat Board supporters demanded that the Auditor General (AG) conduct an audit of that disposition. The AG declined to do that. The refusal to audit was never satisfactorily explained. Then the House of Common’s Finance Committee put forward a recommendation that the transaction be audited and held hearings on this and a broad range of other questions as part of the new governments pre-budget consultations.

On May 10, 2016, Assistant Deputy Minister Greg Meredith, who had led the Harper governments disposal of the Wheat Board, told the Finance Committee, in response to a question from Chairman Easter, that the Wheat Board’s assets had been heavily encumbered to secure loans and for that reason had very little net value. I appeared before that committee on May 12, 2016 on behalf of the Canadian Wheat Board Alliance and was asked about the assets of the Wheat Board. I replied that;

“The fact is, I think there was $145 million in a contingency fund that was transferred from the former Wheat Board to the Ritz Wheat Board, as I call it. One hundred and forty-five million is not nothing. There were railcars bought and paid for many years ago. There is a building bought and paid for many years ago. There were various other accounts, uncashed cheques and so forth, that rolled into the next organization. The government, I believe, the government of the day put $349 million into transitioning this entity so that it could be privatized. In the privatization process they’ve been acquiring new elevators at a very good rate and they just recently announced the construction of a new terminal elevator at Hamilton. How can they say they have no assets?”

The Finance Committee then approved a recommendation to Parliament that;

Recommendation 48

The Federal government provide Western Canada grains and oilseed farmers with a full and transparent accounting of the disposition of the Canadian Wheat Board’s assets since the Marketing Freedom for Grain Farmers Act received Royal Assent, and of the effects on the grain handling and marketing system since that time.

Parliament ultimately declined to conduct any audit which disappointed many prairie farmers who had hoped that the recently elected Liberal Party might look into the matter. That left the lingering suspicion that Trudeau’s government didn’t place a high priority on the interests of prairie farmers “because they don’t vote for us anyway”.

Legal action to recover the $145 million in proceeds from the sale of wheat which was improperly transferred to the Wheat Board’s contingency fund and then wrongfully withheld from prairie farmers by the Harper government was brought before the Federal Court of Canada in 2013. That action was transferred to the Court of King’s Bench in Manitoba after the Wheat Board had been privatized in the form of a class action on behalf of all prairie farmers who had sold wheat to the Wheat Board in 2010/11 and 2011/12 crop years.

Unfortunately, our legal system does not function well when powerful entities like the Government of Canada and major corporations are defending against very large claims brought large groups of people with small individual claims. Where a claim is on solid legal footing the parties being sued simply wants to avoid a final decision for as long as possible. Delay weakens any case because memories fade, documents and other evidence may be lost and Plaintiff class members may pass away. The average age of class members when that action was started was estimated to be about 58 years. The average will be about 70 today. While delay is compensated to a minor extent through awarding of interest, that interest rate has been pegged at the very low rate of 1.25% over the last 13 years.

Not only does delay pay, the rules which govern the conduct of class actions provide many opportunities for the process.

No government will ever interfere in the functioning of our courts in the actual conduct of any legal matter for the very powerful reason that judicial independence is essential in a democracy. However Canada has a responsibility to handle claims like this fairly and justly.

One can only hope that the Department of Justice comes to accept that its true role is to ensure that justice is done on the basis of the merits of the matter and that its role is not to use every rule in the book and tactic to delay and potentially defeat the valid claims brought against the government. Personally, I recommend, that Canada retain expert and well respected legal counsel to review this matter and advise the Minister of Justice how it might be resolved.

Ironically, 10 years after the demise of the Wheat Board, some people in Alberta and Saskatchewan now seem to support separation from Canada. It remains to be seen whether the new Carney government has any interest at all in resolving long standing western grievances including those of prairie farmers over the termination of the Wheat Board. This might be a better time than ever to act on this issue, and to act soon.