By Walter Neufeld. [From Facebook] “Governance beyond Canadian Law & the legitimization of the criminalization of Canadian Law”
Why is the Canadian government’s “reality” narrative increasingly at odds with the Canadian experience of reality on the ground?
Why does the government narrative feel more & more like a brutally rejigged alien overlay?
The higher that overlay is piled, the easier it is see the lay of that alien landscape.
The outlook from that vantage is not friendly.
The “Mike Duffy Senate Scandal” has revealed the generally unknown legal underpinnings Harper appears to have relied on to execute his extra-judicial governance (#1).
At issue is a key political gamble Harper appears to have made before the Duffy Senate Scandal became public. Could he bribe Duffy and get away with it?
Surprising to most Canadians is the unsettling fact that avoiding criminal repercussions was actually the no-brainer portion of Harper’s gamble.
Political blowback was his only concern. Could he weather the political storm and/or avoid the political storm altogether by covering-up his “arbitrary” use of a little known section of the “Canadian Federal Criminal Code” (#2) which makes it legal for him to break the law if he approves it in writing?
Unknown to most Canadians is the stunning revelation that their elected legislators have contorted the “Canadian Federal Criminal Code” into allowing them to criminalize the law and thereby legitimize their otherwise illegal actions (#3).
It helps makes sense of why the RCMP dropped its investigation of Nigel Wright (he had Harper’s written consent to bribe Duffy?).
And it helps makes sense of why Duffy is so cocky now: he has a get-out-of-jail-free card in his back pocket which he also (presumably) plans to use to feather his nest after the affair has been settled (he has Harper’s written consent also?)
In other words, Harper will be forced to cut a deal with Duffy & thereby use the court to keep the whole thing sealed from public scrutiny.
The question is this, how far does Harper’s arbitrary, extra-judicial governance reach?
The evidence appears to suggest, everywhere.
Harper has declared War on Canada and it’s citizens.
***
endnote (#3), Legal Opinion:
The troubling provision is section 121, which seems to provide an exception to bribery or financial corruption of an official (including elected or appointed members of Parliament) if that person “has the consent in writing of the head of the branch of government with which the dealings take place”.
This provision is especially troubling because the nature of the “consent in writing” is not specified. Presumably, this provision was aimed at public transparency, the idea being that if the head of the subject branch of government gives his consent in writing to such dealings, then there would be accountability to Parliament and the public, who could would have access to such written instruments through freedom of information requests. Indeed, in one of the few reported cases dealing with this provision (R. v. Hinchey) the court found that the purpose of section 121 was to preserve not only the integrity of government but also the appearance of integrity.
Where the problem lies, however – and it does not appear that this has ever been addressed by the Courts or the legal academics – is that the nature of the “consent in writing” is not specified. An Order in Council or something in the nature of a resolution signed by the head of the subject branch of government is likely what was contemplated by the drafters of this provision – because then this information would be publicly available to citizens and opposition parties – but nowhere has this been specified or decided by the courts. So, technically, the head of the subject branch could provide his “consent in writing” by private methods, e.g. a text message, and this would not be known to the public unless and until the official is charged under the provision and raises consent as a defence. Such a practice, in my view, would not comply with the spirit of section 121, but it may very well comply with the black letter of the law of that provision, and therefore may be permitted.
The constitutionality of that hypothetical situation has never been tested by the courts. But to make matters worse, in the one constitutional case dealing with section 121 (R. v. Fisher), the Ontario Court of Appeal struck out the words “the proof of which lies on him” from the section requiring an accused to prove the written consent. The effect of this decision is that the Crown (not the accused) must prove that the accused did not have the written consent of the head of the subject branch of government. In my view, this makes investigation and prosecution under this section an extremely rare and unlikely event.
Moreover, the section (and the case law dealing with the section) does not in any way address the situation where the official involved in the allegedly improper dealings is himself the head of the subject branch of government, e.g. a cabinet minister in charge of a specific dept or government portfolio.
If the government was in fact interested in a framework that accomplished the stated purpose of section 121 – to preserve the integrity and appearance of integrity of government – the nature of the “consent in writing” requirement should be more specific, and in a form that is accessible to constituents, the public and the opposition. In addition, the “consent in writing” exception to this offence should be removed for certain officials, namely the heads of the subject branches of government themselves. It could very well be that this is how the courts would interpret and apply section 121 in any event. But the courts may never have the opportunity to give such a ruling, having regard to the extremely rare and unlikely prosecutions that would be undertaken under the section.
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endnote (#1), Extrajudicial
ex·tra·ju·di·cial (adjective) \-jü-ˈdi-shəl\
Definition of EXTRAJUDICIAL
a : not forming a valid part of regular legal proceedings
b : delivered without legal authority : private 2a(2)
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endnote (#2), Canadian Federal Criminal Code
R.S.C., 1985, c. C-46
“Corruption and Disobedience
Marginal note: Bribery of judicial officers, etc.”
…
“Frauds on the government”
“121. (1) Every one commits an offence who
(a) directly or indirectly”
…
“(b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings, ****unless the person has the consent in writing of the head of the branch of government with which the dealings take place;”****
Web link: http://laws-lois.justice.gc.ca/eng/acts/c-46/page-63.html
****Asterix mine for emphasis
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*Walter Neufeld was born and raised in Abbotsford. He manages a development company operating in BC and in Alberta. Walter has been a critic of the provincial government’s dysfunctional Mines Act for about 12 years. Neufeld is the president of the Fraser Valley Regional District Citizens Association (FVRDCA). Most recently, he’s critiqued both Honourable Randy Hawes and the gravel industries Aggregate Pilot Project which he believes to be a harmful private production document .