WINNIPEG – An independent legal expert says Andy McMechan and Bill Cairns should launch an appeal if they don’t believe they should pay fines for recent convictions for exporting grain illegally.
Lee Stuesser, who teaches law at the University of Manitoba, was reacting to reports the farmers don’t plan on paying or appealing the fines.
Cairns was fined $600 last month in the highly publicized trial in Virden, Man. McMechan was fined $2,000 and was also ordered to pay $55,693 to the Canadian Wheat Board to compensate for what it lost from his cross-border sales.
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Both were charged under the Canada Customs Act for exporting grain to the United States without wheat board permits.
The wheat board has a legislated monopoly on export sales of almost all western grown wheat and barley.
Dan Creighton, a Saskatoon paralegal who helped the farmers with their trial, said they can’t appeal because “it’s an illegal order. It’s a nullity in law, what took place (in Virden).”
Creighton said the judgment of $55,693 for the wheat board was beyond the jurisdiction of a provincial court judgment, and should have been made by a jury at the Court of Queen’s bench.
Because of the $55,693 judgment, Creighton said an appeal would have to be heard by the appeals division of Court of Queen’s bench. But he said procedures allow him only to appeal to the trial division of Court of Queen’s bench.
Stuesser called Creighton’s reasoning “patent nonsense” because:
- The Court of Queen’s bench does not have an appeals division.
- Judges at Court of Queen’s bench can act as appeals judges or trial judges.
- Summary convictions from provincial court are appealed to Court of Queen’s bench.
- Because the farmers were charged with a summary conviction matter, they had no right to a jury trial.
- Summary conviction courts have the authority to make orders of restitution, such as the $55,693 that McMechan is ordered to repay the wheat board.
“You may not like the amount, but if you don’t like it, you appeal,” Stuesser said.
He said the Supreme Court of Canada has made it clear that only judges can decide what is a nullity in law, or an incorrect court order.
“You obey the (court) order until (a) court of appeal tells you it’s a nullity. The order stands and it is to be obeyed, it’s as simple as that,” Stuesser said.
Unless an appeal is made, the crown can proceed to enforce the order made against McMechan and Cairns, he said.
