The Manitoba judge who acquitted Canadian Wheat Board opponent Dave Sawatzky on charges of shipping grain to the U.S. without an export permit interfered with the course of justice, says the crown counsel appealing the case
Provincial court judge Arnold Conner made some significant errors during the May trial, prosecutor Clyde Bond said in documents filed with the Manitoba court.
“Some of the errors amounted to ignoring clear rules of evidence about expert evidence and when it is and when it is not permitted in a trial,” said Bond. “Other errors were more serious because of the manner of handling the issue, outside the courtroom and outside the knowledge of the parties.”
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The justice department lawyer will try to convince a Winnipeg Court of Queen’s Bench appeal judge to overturn Sawatzky’s acquittal and hand over a conviction on charges of exporting wheat and barley to the United States without a Canadian Wheat Board export permit.
The appeal is expected to be heard Jan. 27 in Winnipeg.
Sawatzky, a MacGregor, Man. farmer, was acquitted in May of exporting grain without an export licence under the Canada Customs Act.
Conner’s ruling conflicts with an earlier decision by judge David Coppleman who found two other farmers, Bill Cairns and Andy McMechan, guilty of similar charges in April 1996.
The ruling prompted the federal government to close the legal loophole judge Conner pointed to in the acquittal.
Bond expects to address the April convictions in the appeal, but likely will focus on the testimony of Albert Prefontaine, a legal translator with the Manitoba justice department.
Following testimony from all witnesses, Conner adjourned Sawatzky’s case but then surprised both crown and defence by re-opening it to hear Prefontaine’s translation of the Canada Customs Act from French to English.
“The French version said you are required to provide (an export) licence at customs while the English version said you are required to provide a licence when you are mandated,” Conner told Sawatzky at the trial. “We’re trying to reconcile those differences if possible and if not, decide which version applies.”
Conner ordered Prefontaine, a hostile witness, to translate the section amid objections by the prosecution and, according to documents the crown filed with the court, objections from the Manitoba department of justice.
Deputy minister of justice Bruce MacFarlane said because the Canadian government has provided two official versions of the regulation, it was not in his view appropriate for another level of government to “second guess” either of the versions.
Prefontaine testified he had no formal experience translating from French to English and admitted the process is significantly different than translating from English to French.
“Albert Prefontaine possessed no special knowledge beyond that of any of the millions of people in Canada who by life experience are able to speak both English and French,” say court documents which outline the crown’s appeal. “… to rely on the shaky opinion of Albert Prefontaine was an error,” the crown factum said.
Conner said the not guilty verdict had nothing to do with the debate around the wheat board’s monopoly on the export of wheat and barley, but rather was based on technical issues related to the processing of export documents.
Sawatzky’s defence lawyer Len Tailleur, with the Winnipeg firm Walsh Micay, said he will argue that the Queen’s Bench court should uphold Conner’s decision .
on the basis of statutory interpretation.
“We will argue the statute should be interpreted as it was interpreted,” Tailleur said.
“When a statute is unclear, the court should try to interpret it in the favor of the accused.”
Proof in the problem of legal interpretation of the legislation came when the act was amended immediately following the ruling, Tailleur said, adding his client will likely appeal if the acquittal is overturned.
