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The origin of the Usher of the Black Rod goes back to early fourteenth century England . Today, with no royal duties to perform, the Usher knocks on the doors of the House of Commons with the Black Rod at the start of Parliament to summon the members. The rod is a symbol for the authority of debate in the upper house. We of The Black Rod have since 2005, adopted the symbol to knock some sense and the right questions into the heads of Legislators, pundits, and other opinion makers.

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Sunday, April 28, 2013

When the government goes rogue, who will bell the cat?

Like most lawbreakers, Greg Selinger, Stan Struthers and Theresa Oswald think they're smarter than everyone else.

In their arrogance, they're convinced the law doesn't apply to them. They can always rely on their apologists to run interference for them, whether it's Winnipeg Free Press columnist Dan Lett, inventing excuses for why the NDP needs to break the law, or Legislature reporter Bruce Owen, musing over whether breaking the law is wrong if government members do it.

Make no mistake, the Premier of the province, Greg Selinger, has broken the law. He`s done it blatantly in the belief that nobody can do anything about it. He`s declared that he and the NDP are above the laws of Manitoba.

But the law is clear:

C.C.S.M. c. B5
The Balanced Budget, Fiscal Management and Taxpayer Accountability Act

Referendum required for tax changes
10(1) Subject to subsection (2), the government shall not present to the Legislative Assembly a bill to increase the rate of any tax imposed by an Act or part of an Act listed below, unless the government first puts the question of the advisability of proceeding with such a bill to the voters of Manitoba in a referendum, and a majority of the persons who vote in the referendum authorize the government to proceed with the changes:

(a) The Health and Post Secondary Education Tax Levy Act;
(b) The Income Tax Act;
(c) The Retail Sales Tax Act.
In a nutshell, it says you can`t raise the provincial sales tax without holding a referendum first.

Selinger has deliberately breached the law. He has, through Finance Minister Stan Struthers, presented to the Legislative Assembly a bill to increase the PST without holding a referendum first---precisely what is prohibited by law.

Selinger and Struthers are guilty under the Summary Convictions Act of Manitoba which states:

Offence and penalty
4 Any person who contravenes, violates, disobeys, or refuses, omits, neglects, or fails to comply with,
(a) any provision of any Act of the Legislature; or
(b) any provision of any regulation;
is guilty of an offence, and unless another penalty therefor is provided by or under an Act of the Legislature, is liable, on summary conviction, to a fine not exceeding $5,000. or to imprisonment for a term not exceeding three months, or to both such a fine and such an imprisonment.
S.M. 2005, c. 33, s. 13.

There can be no doubt that Greg Selinger and Stan Struthers have "refused to comply with "a provision of an Act of the Legislature.

The Balanced Budget legislation prohibits "the government" from presenting a bill to the Legislature before holding a referendum.  Who is "the government"?  At first glance, you would say the entire NDP caucus, wouldn't you.

Would that be correct? You could argue that a majority of the Legislature doesn't form a government, it selects a government for the province from among the members of the Legislature.  A minority government can exist with the support of MLA's who are not in the ruling political party.

The federal government, for one, takes a narrow view.

On its website it states:  

"In a strict legal sense, “the Government” is the Prime Minister and the other Cabinet Ministers. The Cabinet determines priorities and policies, ensures their implementation, and presents legislation to Parliament for approval."

Accepting that narrow definition, charges under the Summary Convictions Act of Manitoba must be laid against Premier Greg Selinger and the 19 members of his cabinet---Steve Ashton, Dave Chomiak, Gord Mackintosh, Eric Robinson, Ron Lemieux, Stan Struthers, Nancy Allan, Jim Rondeau, Peter Bjornson, Christine Melnick, Theresa Oswald, Kerri Irvin-Ross, Andrew Swan, Jennifer Howard, Flor Marcelino, Erin Selby, Kevin Chief and Ron Kostyshyn.

Selinger, Struthers (who moved the illegal motion, and Oswald (who seconded the illegal motion) are in line for jail sentences for their contempt for the law and the public. The rest face fines.

And yet, the rest of the NDP members are just as guilty of operating outside the law. Can they, too, be brought to justice?

Certainly they are accomplices to the offence. When the illegal motion was presented to the Legislature, the non-cabinet members of the NDP had an opportunity to distance themselves from the lawbreaking.  
Instead,  they joined in the lawbreaking.

The Opposition, through Hansard, captured their confessed aiding and abetting of the crime:
Wednesday, April 17, 2013
The House met at 1:30 p.m.
Introduction of Bills

Bill 20–The Manitoba Building and Renewal Funding and Fiscal Management Act
(Various Acts Amended)

Hon. Stan Struthers (Minister of Finance): I move, seconded by the Minister of Health (Ms. Oswald), that Bill 20, The Manitoba Building and Renewal Funding and Fiscal Management Act (Various Acts Amended), be now read a first time.
Motion presented.

Mr. Struthers: This bill will–would ensure stable, transparent and dedicated funding for Manitoba's Building and Renewal Plan, as well as making amendments to The Balanced Budget, Fiscal Management and Taxpayer Accountability Act related to federal transfers, the net income of major Crown agencies and the duration of the economic recovery period.

Mr. Speaker: Is it the pleasure of the House to adopt the motion?

Some Honourable Members: No.
Some Honourable Members: Agreed.

Voice Vote
Mr. Speaker: All those in favour of the motion, please signify by saying aye.
Some Honourable Members: Aye.
Mr. Speaker: All those opposed, please signify by saying nay.
Some Honourable Members: Nay.
Mr. Speaker: In the opinion of the Chair, the ayes have it.
Recorded Vote
Mr. Kelvin Goertzen (Official Opposition House Leader): A recorded vote, Mr. Speaker.
Mr. Speaker: A recorded vote having been requested, call in the members.
Order, please. Order.

The question before the House is first reading of Bill 20.

A RECORDED VOTE was taken, the result being as follows:

Allan, Allum, Altemeyer, Ashton, Bjornson, Blady, Braun, Caldwell, Chief, Chomiak, Crothers, Dewar, Gaudreau, Howard, Irvin‑Ross, Jha, Kostyshyn, Lemieux, Mackintosh, Maloway, Marcelino (Logan), Marcelino (Tyndall Park), Melnick, Nevakshonoff, Oswald, Pettersen, Rondeau, Saran, Selby, Selinger, Struthers, Swan, Whitehead, Wiebe, Wight.

Briese, Cullen, Driedger, Eichler, Ewasko, Friesen, Gerrard, Goertzen, Graydon, Helwer, Mitchelson, Pallister, Pedersen, Rowat, Schuler, Smook, Stefanson, Wishart.

Clerk (Ms. Patricia Chaychuk): Yeas 35, Nays 18.
Mr. Speaker: I declare the motion carried.

Section 21 of the Criminal Code covers the actions of "parties" to an offence.

The law designates four separate potential offences: actually committing the crime, aiding, abetting and "common intention."

The charges facing the non-caucus NDP members appear to be 'aiding' and 'common intention'.

Aiding or abetting is doing something that helps (aiding) or encourages (abetting) the offender in committing the offence. Voting in favour of an illegal motion certainly aids the lawbreakers in breaching the law of Manitoba.

The other potential charge, Common Intention, is equally applicable.

Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.

The NDP caucus members certainly form the intention to ignore the balanced budget legislation and to assist the cabinet in doing it.

And that's not all.  

Organizations, such as the New Democratic Party, can be charged:

Offences of negligence — organizations

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

2003, c. 21, s. 2.

Other offences — organizations
22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.
2003, c. 21, s. 2.

The question, of course, is who is going to lay the charges.
The administration of justice is a provincial responsibility. And you know the NDP will not charge itself or its members with crimes they've committed. Greg Selinger is betting the farm on that.

The first thought of any citizen is that the Lieutenant Governor would step in to protect democracy by dissolving the Legislature and forcing an election.

It can't happen.
By immutable tradition, the Queen's representative acts only at the request of the Privy Council, in this case Selinger and his cabinet.  The Lieutenant Governor cannot impose his own will on the Legislature, even to stop a government of criminals.
The only option is a private prosecution, to get the charges into a court that the NDP government cannot control.  
Although the Crown has the right to take over any private prosecution and stay the charges, it cannot act in this case.
The Justice Minister, as a potential accused, has a conflict of interest that even the NDP cannot overlook. The deputy minister is appointed by the NDP government and is similarly hamstrung.  Further down the chain, there's the obvious perception of bias as government employees are seen to be acting on behalf of the very objects of the prosecution.

And that's not even raising the potential problem that justice officials themselves could be facing charges of counselling:

Counselling (s.22)
Person counselling offence
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

Definition of counsel
(3) For the purposes of this Act, counsel includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7.

In this circumstance, counselling is more than just giving advice; it means the accused intended the offence to be committed or gave advice on how to commit the offence while knowing there was the chance it would happen.

Anyone in the justice department recommending a private prosecution of Selinger, et al be quashed has a potential conflict of interest, since he or she could just as likely be guilty of counselling.

Could the province, as they do in some prosecutions, ask another provincial jurisdiction to quash a private prosecution? 
Hell, no.  Since when does Saskatchewan have any say on the administration of justice in Manitoba?

That's just begging for a constitutional challenge.
Which leaves the public back at square one- -facing a government that's openly breaking the law and daring anyone to stop them.
Who will bell the cat?  

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