OTTAWA – Is the federal government offending legal tradition by trying to change the Canadian Wheat Board Act while the legislation is facing a constitutional challenge in court?
At least one respected Canadian constitutional specialist believes so.
Howard McConnell, a University of Saskatchewan law professor, recently suggested that by introducing new legislation which includes continuation of the wheat export monopoly, the federal government is acting to “bolster legislatively” the board’s position while it is under court challenge.
And when federal lawyers introduced as evidence before Federal Court Justice Francis Muldoon several policy statements by federal agriculture minister Ralph Goodale supporting the board, it raised “some awkward questions” about the government’s attempt to influence the court.
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“It seems to me the government is using its power to try to gain an advantage over citizens in a pending case by re-affirming the principle on which the case is based,” McConnell said from Vancouver, where he is researching the Supreme Court’s role during the 1980s.
“There obviously is an argument before the judge which could impeach government legislation whose principle is now being reaffirmed in new legislation. In that case, the government is doing something that verges on unethical.”
McConnell was commenting after Muldoon criticized the government as he heard final arguments in a Charter of Rights challenge to the wheat board’s export monopoly.
In his Winnipeg courtroom in early December, Muldoon complained that by publicly defending the board’s export monopoly even while that question is before the courts, agriculture minister Ralph Goodale’s statements “lack the decency of respecting legal process.”
He referred to the principle of sub judice, an unwritten rule which prohibits political interference in a matter before the courts.
When the issue was raised in Parliament, Goodale dismissed the criticism as a formula for political stalemate.
Last week, he received support from an Ontario constitutional specialist who would only speak anonymously for fear of offending Muldoon.
“I think the judge is wrong,” said the professor of constitutional law. “I don’t see anything wrong with the government continuing to affirm the status quo until it is struck down.”
