Review of Court Proceedings
You will recall from our discussion in Stratford, Ontario that there is
a shared concern that farmers in Alberta, Saskatchewan and Manitoba may
have been the subject of malicious persecution on the basis of information
supplied by the Canadian Wheat Board, Canada Customs, Agriculture and
Agrifood Canada, and Federal Justice.
This will not be the only cases in Canada where over zealous
prosecutors have over-stepped the boundaries of judicial propriety, if you
recall the cases of David Milgaard, Paul Morin, John Stophanow to name
only a few.
BACKGROUND
- Before the National Farmers Union, and the Grain Handlers Union and
the prairie pools raised this as a concern, farmers were transporting
grain to the US unfettered by federal regulation.
- It began with a serious outbreak of the fusarium blight in Manitoba,
while the pools and the CWB and the NFU [National Farmers' Union] were
recommending farmers burn their fields, some enterprising farmers took
a sample to the US, the American elevators wanted the fusarium wheat
because it could be blended into the large volumes in the US to a
point it would be at acceptable levels. Hundreds of trucks
crossed the border. Without any documentation the only
requirement was to report to US Customs.
- Later there was an early frost, and like the fusarium the CWB did
not want the frozen wheat in the elevator system, again the Americans
would take all they could get, hundreds more trucks crossed the
border.
(At about this time the politics of envy began to set in, farmers who
burned their fields and farmers who did not have frozen wheat began to
realize that their neighbours were realizing a PROFIT from the export
of grain and they were not.)
- Then the feds openly removed barley from the CWB monopoly, now
thousands of trucks crossed the border, reporting only to customs in
the US.
- The practice continued unfettered for several years, but the howls
of protest became louder, directed in most part by the Grain handlers
and the NFU.
- The Western Producer also became involved and raised the point with
Lorne Hehn, Chairman of the CWB, in a Western Producer article on Feb
14, 1994. The report says "The Canadian Wheat Board is
helpless to stop what industry sources say is an increasing number of
illegal shipments of wheat and barley into the U.S. The Board can no
longer enforce a provision of the Canadian Wheat Board Act requiring
exporters of prairie grain to get a permit from the board, Chief
Commissioner, Lorne Hehn said in an interview last week."
(You will note here that the shipments were described as ILLEGAL at
this time even though there is no requirement to stop at Canada
Customs and Hehn goes on to say "the trucks are not required to
stop at Customs so we have no way of knowing.")
- The prairie pools, the NFU, and other affected parties then went
before the courts for an injunction to stop barley shipments until the
courts dealt with the issue of whether the government could remove
barley from CWB jurisdiction by order in council and not by an Act of
Parliament. The court ruled (in record time) that the issue
should have been placed before parliament and the practice of
exporting of barley by individual farmers was deemed to be
discontinued, however, farmers who had a new found freedom were not
prepared t give up this right without a fight.
- There was a flurry of activity in all departments of government
initiated by the CWB as to how they were to regain monopoly control
over all barley and wheat in western Canada.
- Thus began the intimidation, trumped charges, seizures, ascertained
forfeitures, search warrants, Mugabe style raids in the early hours of
morning, seizures of documents (some never returned), and many other
persecution practices. The Canada Customs became the enforcement
arm of the CWB and Ag Canada, sanctioned by the federal government.
Farmers were charged, convicted, jailed, with little if any objection
by the provinces, and it continues to this day.
Perhaps it would help if I provided some excerpts from court documents.
"Reason for Decision" by Judge DDS Coppleman, the accused were
Andrew McMechan and Bill Cairns, an alleged breach of s.5 of the Reporting
of Exported Goods Regulations. Judge Coppleman wrote," On a
strict review of the Canadian Wheat Board Act and relevant regulations,
nowhere is a person explicitly required to provide an export license to a
customs officer."
On February 10, 1994 Lorne Hehn also said "trucks leaving Canada
are no longer required to stop at Canada Customs on the way out. It
means trucks hauling grain into the U.S. will only have their permits
checked if they choose to stop and show them." You will note
that at this point there is no offence, and from that point forward the
offences were created to suit the occasion, with collaboration with the
CWB, Agriculture, Justice and Customs.
The Coppleman decision was handed down on the 25th of March 1996.
While he said that "nowhere is a person explicitly required to
provide an export licence to a customs officer" he went on to say
"one must read the Canadian Wheat Board Act and Regulations and the
Customs Act and Reporting of Exported Goods Regulation so as to preserve
harmony between the two Acts and give effect to the obvious intent of
Parliament to do this one must construe Regulation 5 so as to require an
exporter of wheat and barley to produce to the Chief Officer of Customs an
export permit under the Canadian Wheat Board Act and Regulations."
In other cases I have read where there is ambiguity in the law to the
point that the law must be construed, and there is doubt about the intent
of the accused to conduct an illegal act, the courts have found on behalf
of the accused and not on behalf of the crown.
In this same court document Wheat Board employee Harvey Brooks gave
evidence that "in order to obtain an export license, a shipper must
first have a contract for the sale of the grain, then contact the sales
office at the Canadian Wheat Board. The "buy-back"
procedure is invoked in compliance with the Canadian Wheat Board Act and
Regulations. The grain is sold to the Canadian Wheat Board and the
shipper buys it back at a price calculated in accordance with the Act and
Regulations and receives an export licence." This is a complete
contradiction of the remarks by the commissioner Lorne Hehn. AS you
can see, they are making the rules as they go along.
As we proceed down this road I will supply you with a government report
regarding the trails of Sawatsky, McMechan and Cairns . The
Executive Summary concludes by saying in the final paragraph "The
final section of this paper examines the effects of the ruling in each of
these cases. The Sawatsky trial forced regulatory changes to be
made. Within hours of the ruling, the CWB regulations were amended
to explicitly call for producers to obtain export permits and to produce
them to Customs Officers." (At this point McMechan and Cairns
are facing court action on the regulations as they existed before the
Sawatsky acquittal, and this applies equally to your farmers in Alberta,
yet they will be judged on the amended regulations, not on the old
regulations). The summary continues, "the McMechan and Cairns
ruling, despite being condemned as weak, served to reinforce existing
legislation and regulations. The rulings' provisions have, however,
fallen into disuse. Finally, the McMechan decision made the
following trials easier by providing jurisprudence which had not, until
then, existed."
I will supply you with a report on a meeting that was held in the
second floor boardroom of the Connaught Building in Ottawa entitled
"Ottawa Wheat and Barley Meeting" Monday, June 23, 1997,
obtained under the Access Act.
The Agenda is as follows:
- Status of Cases
- Court Action
- Adjudication Process
- Legal Issues
- Strategy to Manage Cases
- Andy 500 - Strategy to Manage
- Communications Strategy
- Conclusion
Senior Officials from Agriculture, Justice, Canada Customs and the
Canadian Wheat board were in attendance (I have the list of names and
phone numbers). The minutes include a report by Mike Hadley of
Revenue Canada. He provided a summary of the civil actions being
taken by Customs and Revenue Canada at this point.
"Of the 211 cases currently under appeal, approximately 170
involve criminal charges under the Customs Act of Exporting without a
License (s.5) and Failure to Make a Report in Writing (s.3). The
S.5 charge of Exporting without a License is, as a result of the
Sawatsky decision, no longer valid. This is problematic because
the s.3 (Failure to Report in Writing) actions were added as an
afterthought and have in many cases not been pursued, i.e. the
defendants have not been given an opportunity to respond to these
charges. Additionally, warning letters by customs had not
specifically referred to the requirements to report in writing.
Consequently, there is now some question as to whether the s.3 charge
will stand up to a court challenge. The difficulty with the s.3
charge is that exactly what constitutes a report in writing has never
been Gazetted or specified. The department of Justice acknowledges
that although the courts have commented favourable to the effect that
there is clearly a s.3 offence (in the Sawatsky case) the charge has
never been the actual focus of a trial and there is the possibility that
it will not stand up to a court challenge."
In addition to the s.3 and s.5 criminal charges, many of the cases have
also involved the laying of civil charges (i.e. fines) under the Customs
Act. There was some discussion that Revenue Canada might have to
discontinue these civil proceedings, either because the defendants had had
no chance to respond to the s.3 charge, or on the basis that s.3 was not
valid in law. This revelation concerned Customs field personnel at
the time. NONE OF THIS INFORMATION WAS EVER SHARED WITH THE
DEFENDANTS OR THEIR COUNSEL OR THE JUDGES. They just continued to
prosecute.
Even as I prepare this document many of your Alberta farmers have
already paid heavy fines by pleading guilty to an offence that does not
exist, some still face ascertained forfeitures and some even face the
possibility of a jail sentence and a criminal record.
Please review this background information, there is some very startling
information that comes our of the transcripts of the trails, like perjury,
conflicting testimony, a crown prosecutor who points to Andy in the
prisoners box and yells "look at him, your Honour, he even looks like
a criminal". No admonishment from the judge so I can assume the
judge agreed. On another occasion the judge pointed his finger at
Mrs. McMechan and said "If you do not disclose the contents of your
bank account in North Dakota, I will throw you in jail with your husband.
Trials that proceeded without the accused being represented by an
"agent" as provided for in the Criminal Code, the judge refused
to allow the agent in the court, and on and on.
Please contact me after you have had the chance to review this.
Ken Dillen |
