‘Fundamental constitutional imperatives’, the man says

On the Wheat Board, who should prevail in the contest between the Parliament of 1998 and the Parliament of 2011?

by Colby Cosh

Canadian judges are rightly protective of their independence. It takes no more than a whisper of political interference in their work—indeed, arguably much less than a whisper—to raise their hackles and bestir them to the clamorous defence of this most sacred principle. But this principle ought to cut both ways, yes? Mischievous interference in politics by judges should be castigated just as seriously, if we are to preserve the proper relationship between elected institutions and the bench—if only because involvement in law-making by judges invites reaction, pushing us toward an open contest of force between the branches of government. The branch that doesn’t command fighter jets probably shouldn’t want that.

This is worth considering, I think, after Hon. Douglas Campbell’s Wednesday afternoon decision in the Federal Court case of Friends of the Canadian Wheat Board et al. vs. Canada. Campbell’s decision has inspired an immediate loathing and derision from lawyers of a sort I don’t remember seeing since the Miglin case (2003).

Campbell was presented by the government with the argument that section 47.1 of the Wheat Board Act, which Agriculture Minister Gerry Ritz pretty obviously violated, contravenes parliamentary sovereignty. 47.1 was added in 1998; it forbids the minister from introducing a statute to take grains out of the single-desk marketing regime without holding a plebiscite of growers. As I wrote earlier, the section has never been considered quite kosher. Parliaments can bind their future successors by means of “manner and form” procedural rules, but (leaving aside some quibbles and wrinkles and impish theoretical contrarianism) they can’t put a fence around their legislative legacy by making it harder to repeal individual statutes than it was to pass them in the first place. This is as much a matter of rudimentary logic as it is of the “constitution” per se, for whose will would we expect and desire to prevail in a contest between the Parliament of 1998 and the Parliament of 2011?

In this context, it is often thought to be a particularly bad idea to devolve Parliament’s supremacy onto some other interest group outside Parliament. It should take you about five seconds to see why, though the collective brainpower of the Opposition parties hasn’t solved this Rubik’s Cube yet; a Parliament could make legislation effectively unrepealable by bestowing vetoes upon the right groups. Do we want today’s Conservative majority to pass a statute requiring a plebiscite of gun owners in advance of any change in firearms law? Would we like the Victims of Violence to have a veto over changes to the material in the omnibus crime bill? If you find such notions revolting, you can’t defend 47.1: it is exactly the same thing in principle.

Justice Campbell, presented with this argument against 47.1, refused to entertain it for technical reasons.

The Minister has attempted to argue that s. 47.1 does not meet the requirements of a “manner and form” provision. I dismiss this argument and find any debate on “manner and form” is not properly before the Court for determination. Section 47.1 is presumed to be constitutionally valid, and no argument challenging this presumption has been properly presented in the present Applications; to do so would require notice of a Constitutional Question which has not been given.

Well and good. But having found that he had no power to adjudicate the obvious constitutional question that everybody has about 47.1, Campbell went on to wax indignant about how it was his job to protect “fundamental constitutional imperatives” and the rule of law from Conservative depredations. Talk about having your cake and eating it! Having cowered behind the issue of improper notice, Campbell sows his ruling with all kinds of hints that he thinks 47.1 does represent a particularly pure, strong draught of justice. He suggests openly (see paragraph 9) that 47.1 is in fact a mere “manner and form” requirement, inoffensive to any consideration of parliamentary sovereignty. Even more outrageously, he attributes a “unique democratic nature” to the Wheat Board, implicitly suggesting that our other institutions of government are less “democratic”…because they are creations only of a democratic Parliament and aren’t held hostage by vested interests outside of it.

Having loaded up his judgment with rhetorical ammunition for the Opposition, he turned it loose without waiting for a French translation; with the amendments to the Wheat Board Act being debated on the Hill, the judge’s genius simply could not stay for the tedious requisites of official bilingualism. It worked like a charm. Liberal James Cowan could be heard last evening in the Senate, ignoring the judge’s refusal to actually hear the argument on whether 47.1 is an acceptable “manner and form” requirement and instead quoting his obiter dictum to the effect that it is one. The more polite interpretation of this event is that Sen. Cowan didn’t know any better because Justice Campbell overhastily published a stupid and confusing decision.

‘Fundamental constitutional imperatives’, the man says

  1. It is amazing how much Canadian public policy seems to occur because of fear of Con Party and its supporters and nothing at all to do with actually helping people. Liberal Party is now superfluous because Libs control bureaucracy.

    Coyne’s blog 2006: 

    “And the courts? Let’s just review, shall we? 89% of all political donations made by federal judicial appointees in Ontario since 1993 went to the Liberal Party of Canada. 92% of all political donations by federal judicial appointees in Quebec went to the Liberal Party of Canada. More than 60% of all federal judicial appointees in Ontario, Quebec, Alberta, Saskatchewan and Manitoba since 2000 donated exclusively to the Liberal Party of Canada in the three to five years before their appointment. Notice a pattern? (UPDATE: “Would you be surprised to find that almost all federal judges appointed from Saskatchewan are Liberal Party donors?”)

    • That was a report published in 2006 using stats that predate 2006 – I wouldn’t be surprised to learn that the same people are now giving money to the party in power.  For sure, the LPC is not getting much money from anyone these days. 

      There was a time when I gave money to more than one party.  When companies were still allowed to give money to parties, most gave to all parties. 

  2. “Campbell’s decision has inspired an immediate loathing and derision from lawyers of a sort I don’t remember seeing since the Miglin case (2003).”

    Or this one:

    http://www.canlii.org/en/ca/fct/doc/2002/2002fct243/2002fct243.html

    (I’ll save you the trouble of noting it up – Justice Campbell’s reasons didn’t fare that well, to put it mildly, on appeal)

  3. To me the only relevant arguments on this topic center around what justification exists to REFUSE farmers the right to opt out.

    It’s a straightforward question of personal freedom, an important principle in our society that needs to be upheld, versus the Wheat Board, which DOES NOT exist because of some greater principle that needs to be protected. I would suggest it’s a financially sound concept, but that’s no argument in principle for forcing people to comply against their wishes.

    My only problem really with what’s going on now, is that the Conservatives seem hell bent on ensuring the Wheat Board goes down in flames, rather than simply ensuring the right to opt out, and ensuring the infrastructure is there for farmers to do so.

    Then again, Reform practically came into existence around hatred of the Wheat Board. LOL

    There are obvious benefits to a collective trading position for small individual farms. It may only be one factor, but size equates to influence which impacts the price of what you’re selling. Like any bargaining that goes on, the power balance in negotiations, especially with multi-nationals like Monsanto, matters a great deal.

    Now of course, if you think you can do better, then you should be able to go for it, but I suspect that five years from now, the difference between the pre-Wheat Board and post-Wheat Board era, will be the name and number of collectives in play, with only a smattering of larger independent operators outside them.

    In terms of “47.1″ it seems to me that the intent was to give control to the farmers as a whole. Obviously I think that approach was misguided for the reasons cited above, and I can’t see how a previous parliament should have the ability to impinge on the current parliament in that manner.

    Of course I’d be far more comfortable if parlimentary majorities actually meant that a majority of Canadians were represented, but that’s another rant for another time. LOL

    • I tend to think that the difference between now and then will be the same overall number of players, but none of them will be collectives, with most of the current farmers having been forced out.

      • So of course I have to ask what you mean then by “same overall number of players”.

        In any case, the small farms will either form collectives or get bought out in my opinion.

        • Right now there are a certain number of players in the market. The CWB being a large collective of them. With the CWB gone, I expect we may get one more “large” company out of it, but the small farms will get bought out, one by one. Because the larger firms have the leverage and lack of starvability that the small farms do.. so will be able to pick them off one by one — being able to pull them out of any voluntary collective by paying higher prices tied to a non-cooperation contract.

          This will, I expect, end up reducing our farming industry to a small oligopoly with no concern for ordinary Canadians.

          • Has this happened in ranching?  They have no board yet small producers are not being forced out of business by large “firms”.  Farmers are business people.  I think they deserve the right to choose how they market their products.  Make the CWB voluntary.

        • What makes you think it will be any different for grain farmers than it is for beef ranchers?  They have never had a board, yet there are small farms and they haven’t been bought out by some “large” entity. 

    • Growing up in the Peace River country where grain farming is the norm, it boggles my mind when you and Thwim discuss “small farms being taken over by multi-nationals”.  I don’t think you guys have any clue about grain farming on the prairies where the CWB exists.  You do ask one really great question…why is it manditory for western (Northern BC, Alberta & Saskatchewan) grain farmers to sell through the CWB but Ont & Quebec grain farmers can voluntarily sell through their wheatboard?  Is it really fair?  How about the farmers who want to raise organic crops and are getting no support from the CWB…why shouldn’t they have the option to market their own crops? 

      • Growing up in the Peace River country where grain farming is the norm,
        it boggles my mind when you and Thwim discuss “small farms being taken
        over by multi-nationals”.  I don’t think you guys have any clue about
        grain farming on the prairies where the CWB exists.

        Can you elaborate on that?  What is it that PK, Thwim (and myself) don’t fully understand about grain farming on the prairies?

        Also, I’m a little unclear what you are aiming at wrt organic crops and the CWB…does the CWB explicitly stop farmers from growing certain types of crops?

        I tend to agree with Thwim, at least on one aspect of the CWB – without the mandatory CWB, smaller farms will find it even harder to survive than they do today.

        Over time, some of them will be taken over by larger outfits, while others will hang on by learning to become even more efficient than they are today, and yet others will ‘finally’ switch over to growing some other crops, or even put their land to some completely different use.

        Whether any of that is bad or not, I’m somewhat ambivalent.  I think that the CWB changes will hasten the death of some small towns across the prairies and that our food system will become a little less resilient.  As long as these other, ‘unintended’ consequences are understood and agreed to (well, OK, at least discussed) then I’m with Phil King – I’m not sure how you really can force folks who don’t want to essentially subsidize others to do just that.

        • I’m personally on the sidelines – I have relatives who farm in Alberta and have no idea what their view is, but whatever it is I defer to it.  In that vein, it seems clear that there is polarized opinion in Alberta that the CWB ought to go, and polarized opinion in SK/MB that it ought to stay.  I don’t know if the reason the CWB executive is overwhelmingly in the latter camp is just a numbers game or if there is some sort of organizing advantage, etc.

          But I digress.  My question is this: why don’t opponents to removing the CWB monopoly support extending the monopoly to the entire country?  It may be that there is a good practical or logistical reason (economies of scale, shipping access, reliance on Churchill as a port, I don’t know), but I haven’t ever seen the idea even floated.

          • Because maybe 97% or so of the wheat is grown in the prairie provinces?

          • You’re asking the question.  Like I said, I don’t know.  I assume you’re suggesting that there’s either practical difficulties or no economies of scale in transporting product from scattered farms to CWB receipt points.  Maybe that’s true.  Or maybe all of the grain (wheat, barley, etc.) farms in Ontario happen to be next to each other and a shipping mechanism could be worked out to reinforce CWB’s global clout.  I don’t know. 

          • I wonder if the reason Alberta farmers are okay with it is because they are so used to the cattle market being without a board. Cattle producers are plentiful in Alberta and they are free to sell to whomever we have a trade agreement with.  It has not been a doom and gloom senario and Alberta grain farmers probably see the same future for grain without the CWB.  Saskchewan and Manitoba grain farmers probably haven’t been as exposed to the beef model.

        • No, the CWB does not stop organic farmers but according to the farmers, they do nothing to promote or market their products.  If are a “small outfit”, you must use any advantage you can and one of those might be to go organic.  If your marketing board isn’t encouraging or promoting your product but you have no choice but to sell through them, then you are more likely to go broke because you stuck with a bad marketing board than if you could market the product on your own or through a collective of other organic producers.
          Yes, there are less farms but they are bigger farms and this idea that they are fun by “multi-nations” just is not accurate on the prairies.  They are families that fun farms together.  Some small farms might go out of business because of bad management but that is no different than small business or large business that go out of business due to bad management.  You have to look at the cost of farm equipment.  If a combine costs over one hundred thousand dollars, how could a small farm afford it?  They can’t.  They have to hire someone to do their combining or they get together with other family – cousins, brothers, etc. to buy one.  Farms cannot survive unless they are big or they specialize….if the wheatboard isn’t sensitive to the people who want to specialize, the small farms will continue to fail.

          • Interesting…and thanks. Full disclosure, I grew up on a small farm somewhat east of Edmonton. By small, I mean SMALL, my dad had a real job, he farmed evenings, weekends and vacations…at the end of the year he broke even, excluding his own labour.

            So for us, the folks who owned 2 or 3 or even 4 quarters and then rented a few more quarters were big farmers. I can only think of two outfits that farmed more than about 2 sections of land: the local Hutterite colony and a family that ran a seed cleaning plant and grew crops for seed.

            Each of those farms where they had 1 or 2 sections going did indeed have their own combine ($250K strikes me as a more typical value) as well as all the other required equipment. I suppose that you, essentially, are making the case that while I might have been viewing all of those farmers as being fairly efficient, really they aren’t, and that an important reason that they have been able to survive to date is because the current system is subsidizing them.

            I do understand the efficiency argument, at least so far as I do have a tough time agreeing that LARGE farms (ie 10 sections or more) are ultimately obliged to help the smaller farms (in and around a section or two) survive, which I believe the CWB does.

            But I do wonder about the consequences of forcing the 50 or 100 small farmers in my old hometown area to consolidate down to 10 or so LARGE farms: loss of small town businesses, schools, etc. I also suspect that many or even most of the existing large farms who believe that they are going to benefit from dismantling the CWB are going to be quite disappointed by the results. But ultimately I do have a tough time telling them that they can’t try.

            Thanks for your answers on this topic.

          • PS I caught about an hour of Senate AgFo committee dealing with bill C-18. Couple of CWB reps…they (and the questions they were asked) were interesting. As well, a dude (Cliff Bell??) representing the Inland Terminals Association had some interesting predictions…it ain’t gonna be all its cracked up to be by bill C-18 supporters.

            And Mike Duffy, I just shake my head.

    • That argument is without merit when it is tied to restricting the ability of farmers to sell milk, eggs and poultry.

  4. “…Conservative majority to pass a statute requiring a plebiscite of gun owners in advance of any change in firearms law? Would we like the Victims of Violence to have a veto over changes to the material in the omnibus crime bill? If you find such notions revolting, you can’t defend 47.1: it is exactly the same thing in principle…”
     
    While I basically agree with Colby’s overall point, ie that individual farmers SHOULD be able to opt out, I think these examples are terrible. They’re proving the exact opposite point to what he appears to want to make.
     
    Obviously he’s implying the majority of farmers shouldn’t be able to control the minority that wants to opt out of the Wheat Board, but he’s using examples of minorities dictating to majorities, which I don’t think applies here.
     
    Even if you view his argument from the perspective that the present parliament should be supreme over any past parliament, that doesn’t work here either for obvious reasons.

    The entire point of the legislation was to ensure that only those who are involved in wheat farming in the WEST should have say over the state of the Wheat Board, rather than allowing for example, Eastern Canadians to vote in governments that might work against farmer’s interests.

    So they gave the power of determination to the Western wheat farmers in a bid to limit the influence of outsiders!

    Ironic isn’t it?

    In fact the whole reason the Conservatives are having trouble is because the majority of WESTERN farmers DON’T agree with them and haven’t in any plebiscite ever had on this topic with wheat farmers! And every farmer has a voice in the process, thus it is in my opinion more democratic in terms of this issue, than the current parliament! LOL

    No, I wouldn’t go down that road at all in terms of debate.

    There are far more fundamental principles that point to the right of self determination needing protection that trump the basic economic arguments in this case.

    • “…I think these examples are terrible. They’re proving the exact opposite point to what he appears to want to make.
       
      Obviously he’s implying the majority of farmers shouldn’t be able to control the minority that wants to opt out of the Wheat Board, but he’s using examples of minorities dictating to majorities, which I don’t think applies here.”

      These aren’t examples of plebiscites that would be the equivalent of the one in s. 47.1.  They are examples of putting “poison pills” in legislation to fetter future governments from changing the law, which, according to Justice Campbell, is perfectly OK.

      • I think the whole discussion just avoids the obviously larger and more important principle of the right to self determination and freedom of association.

        All the Wheat Board has in its favour is a good economic argument, which pales in comparison to the larger principles at play.

        So personally I think delving into legalistic arguments at all is just silly. The judge is being silly, and the opposition is being silly.

        That said, given that the majority of Western farmers WANT a collective bargaining position, there should be as much effort being put into that as there is being put into ensuring the right to opt out.

        I don’t currently feel that is the case.

        • Freedom of association, but not freedom from association, I guess.

          • Yeah well I think we agree that they SHOULD be the same thing, and in effect are supposed to be!

            Cheers.

        • Absolutely!  Give the farmers the right to opt out.  If the CWB is such a great marketing tool and the farmers are intelligent business people, they opt out.

    • Adam Smith ~ Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer. The maxim is so perfectly self-evident, that it would be absurd to attempt to prove it.

    • The principle is a even more than implying “the majority of farmers shouldn’t be able to control the minority.” As Andrew Coyne has noted, there are other groups impacted by government farm policies BESIDES farmers. Why can’t a plebiscite of non-grain farmers, or grain eaters, or multinational corporations, or the first 200 names of the Boston Telephone directory count as well?

  5. “Mischievous interference in politics by judges should be castigated just as seriously, if we are to preserve the proper relationship between elected institutions and the bench….”

    There already exists a mechanism by which a judge’s opinion may be castigated in that an aggrieved  party might appeal to a higher court.

  6. My biggest problem with Campbell’s ruling is that he buys the paper thin argument presented by Friends of the Wheat Board et al. that s. 47.1 should have a far broader interpretation than a straight reading would give it. They use the political rhetoric surrounding the 1998 amendment to argue that the CWB has to be consulted over any significant change to the act; however, the wording of the section is not vague or complex enough to warrant such a treatment. Section 47.1 clearly refers to changes to the types of crops marketed by the board. The fact that he accepts such weak arguments suggests that he either has an axe to grind or he just wants to kick the can up to the Supreme Court.

    • from s47.1: The Minister shall not cause to be introduced in Parliament a bill that
      would exclude any kind, type, class or grade of wheat or barley, or
      wheat or barley produced in any area in Canada, from the provisions of
      Part IV… http://laws.justice.gc.ca/eng/acts/C-24/page-19.html

      I think scrapping the CWB – thereby excluding all grains from the act – violates the above.

      • They aren’t scrapping the CWB, they’re making participation in it voluntary. Theoretically the CWB could continue to operate exactly as it does now.

        • True – careless language on my part… but I still think that removing the core of the act is, for all practical purposes, equivalent to removing all grains from the act.

          • Yes and let’s remember the CWB only handcuffs Western grain farmers.  Those in central Canada belong to a voluntary wheatboard…how is this in anyway equitable?  Why would parliament have different rules for different parts of the country and why would citizens be so naive as to believe that ONE part of the country needs to be told what to do while the other can choose for themselves.

          • I definitely do not know for sure, but I’ll venture that the reason that Western farmers are part of the CWB and Ontario and Quebec farmers are not has to do with the crop mix of those regions.

            I’ll wager that in Ontario and Quebec the total farm revenue (%) from wheat/grains is quite a bit less than in the west, so that western farmers, as a group would be much more vulnerable to fluctuating wheat prices and would therefore theoretically get greater benefit from a cooperative marketing agency.

        • A little quibble here…

          Is it completely accurate to characterize the effort as “making participation voluntary”?

          IMHO, if it was as simple as that the rhetoric around this change would be quite different;  it would state, up front, that for some – even many – farmers there will probably be a benefit to staying inside of some type of cooperative marketing structure.  From there the government would be trying to make the transition as easy as possible, they would be minimizing the hurdles along this transitional path.

          But it seems (to me, at least) that the government is specifically placing some needless hurdles along the transition path, hurdles that will quite possibly mean that the CWB does not survive at all.

          Thoughts?

          • I think it’s a reasonable characterization, though rhetoric on both sides has been pretty hyperbolic. Could you be more specific as to which hurdles the government has placed in front of a voluntary wheat board?

          • The hurdles had to do with a requirement that the CWB first divest itself of existing assets and/or financial interests (one of those interests having to do with the Churchill port, perhaps?), essentially to wind up its affairs in its current incarnation.

            Then, out of those ashes if a group of farmers wanted to set about trying to recreate the CWB, the government would not get in the way of that (although niether would they help to facilitate that).

            Now admittedly, it is possible that I have exaggerated the actual implementation strategy of the transition, but what I’ve recounted above is the impression that I got a month or two ago.

            Sadly, implementation details and other nuances around this issue seem to often be in short supply. I will try to locate that article or link or whatever it was that I was reading…thanks.

          • So far my search has only turned up this paper from usask, which doesn’t directly address the question, but is at least tangentially relevant – and doesn’t paint a very optimistic outcome, at least for the ‘average’ farmer.

          • Getting closer…this link gets you to a one page description of the current transition plan as per the Government of Canada website.

            IIRC, the article or column that I read was related to this plan, and it suggested that, as a practical matter, the transitional, voluntary CWB will not be able to create a commercialization plan that is acceptable to the government, and so the voluntary CWB will be dissolved within five years….possibly for the reasons outlined in the other link?

  7. Are you not overlooking the fact that 47.1 itself could have been repealed by regular statute?

    • Yeah, there’s that too eh?

      Why is it the CPC has to make a fuss out of everything?

      Somehow I suspect they want it to be this way.

      Keeps the base agitated eh?

      • I’m sure they were advised that this was the way to proceed, but they don’t take advice. 

    • I have wondered about this. Judge Campbell is gormless but I also wonder why Cons just didn’t change the statute and save us from nonsensical judges. Stories recently make it seem like amateur hour at PMO and a fundamental ignorance about how Parliament works.

      Canadian Press ~ Nov 2011

      “The Conservative government faced accusations of snoozing at the legislative wheel after trying to introduce 11th hour changes to their big crime bill — changes that they rejected only a week ago when they were proposed by the opposition.”

      • Well, they are trying to change the statute.  I guess what you’re saying is that they should have repealed 47.1 in session 1, and then removed the monopoly in session 2.

        Similar procedural questions are why they didn’t bring a notice of constitutional question, why they didn’t seek an adjournment to do so if its absence was noted, and why the trial judge didn’t suggest they do so if he had any inkling he might decide on that basis (seeing as the purpose of the rule is to benefit the Crown).  I’m not sure that they can appeal that part of the ruling.  But there’s nothing to stop the Crown from filing an application for judicial review of the statute on the narrow constitutional ground identified by this judgement and see what happens.  Maybe appeal the present decision (or apply for leave, depending on how the rules work), adjourn hearing the appeal pending the judicial review application, and if unsuccessful appeal that and join the two appeals.  Or, if successful and FOTWB appeal the judicial review, join the two appeals.

  8. I’m not going to dig it up, but it would sure interesting to read the debate from 2nd and third readings and Committee evidence and the advice provided to SREGS committee by DOJ about the language being used and its implications for future change at the time the Bill was passed. We pay a lot of people a lot of money to avoid these kinds of problems.

  9. Wow, and people talk about how CBC has bias.

    If you go by what Colby says, he suggests the judge refuses to consider if it’s a manner and form argument from the CPC, then goes on to say it is.  As usual, however, Colby has it ass-backwards, because people who actually know how to read understand that you read paragraph 9 before paragraph 10.

    To wit, in paragraph 9 the judge says that the legislation contains restrictions about how things are to be done and these are known as manner and form arguments.

    Then in paragraph 10 he says that the CPC is attempting to argue that these are *not* manner and form arguments at all, but nobody’s ruled on that yet, so, since the law was passed by parliament and that portion of it remains unchallenged, we have to assume that it’s valid.

    And of course, Colby leaves out paragraph 34..

    34) The first effect is that a lesson can be learned from what has just occurred. Section 47.1 speaks, it says: “engage in a consultative process and work together to find a solution.”  The change process is threatening and should be approached with caution.  Generally speaking, when advancing a significant change to an established management scheme, the failure to provide a meaningful opportunity for dissenting voices to be heard and accommodated forces resort to legal means to have them heard. In the present piece, simply pushing ahead without engaging such a process has resulted in the present Applications being launched. Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary.  Judicial review serves an important function; in the present Applications the voices have been heard, which, in my opinion, is fundamentally importantly because it is the message that s. 47.1 conveys.

    • Not sure what purpose is served by highlighting the self-congratulatory therapeutic drivel in paragraph 34, but OK. I guess my piece wasn’t boring enough on its own.

      • I know, it sucks when someone puts out some rhetoric drivel to balance out your own, doesn’t it? How the hell can you sway people’s emotions if you don’t get the field all to yourself. I understand.

        • Rest assured, Thwim, you rival Justice Campbell when it comes to rhetorical drivel.  That said, I especially look forward to the appellate court’s consideration of paragraph 34, especially the statement “…(g)enerally speaking, when advancing a significant change to an established management scheme, the failure to provide a meaningful opportunity for dissenting voices to be heard and accommodated forces resort to legal means to have them heard.”  I kinda thought that thing we all went through in April was “the meaningful opportunity for dissenting voices to be heard”. Not in Justice Campbell’s world, apparently.

          • If that was the *only* issue that came up during the course of the campaign, you’d have a point.

            It wasn’t, and you’re pointless.

    • Dude, with respect, I think you missed it.  I don’t disagree with how you’ve summarized paras. 9-10, but it omits that the reason the presumption of validity stands is because of the notice deficiency.  And that’s key to Colby’s point that if you can’t rule on whether or not 47.1 is manner and form, then don’t treat it as manner and form elsewhere in the judgement. The reason it can’t be manner and form is because of 47.1(b), requiring a successful vote of grain producers (which is Colby’s larger point).  I agree with the judgment on the merits, but only as far as 47.1(a): requiring consultation before enacting legislation does not bind Parliament’s hands (and this is what para. 34 of the judgment speaks to).

      • So what do you treat it as then? You have to treat it as something, because it exists. Either it’s valid or it’s invalid. And currently we tend to assume our laws, as passed by parliament, are valid until a court rules otherwise.

        It exists, it is a rule for how legislation is to be amended/created, it is therefore a piece of manner and form legislation until such time as it is decided otherwise.

        Consider that the courts and the law treat all who come before it as equal. So it makes no difference whether it’s the government who says, “Nuh-uh, it’s not!” or some random yahoo who wears a duck on his head. That question hasn’t been asked, hasn’t been decided, and until it is, then things which define how legislation is to be enacted are manner and form arguments.

        Now, if the CPC is smart, they’ll start an immediate constitutional question on whether 47.1 consists of a valid manner and form argument. If they do so, I expect they’ll be told quite quickly that no, it does not, and that part of the legislation does not apply.

        However, until they actually do that, they cannot proceed as if the law does not exist.

        • ^^^This^^^

          I’m not a lawyer and I don’t even pretend to be one on the internet. So I won’t pretend to have an informed opinion on the matter. But I do have an opinion on a government that shows total disregard for the law. Maybe the judge is wrong, maybe the gov’t will win out on appeal, maybe the CWB really is the living embodiment of Satan… these are all open questions.

          But there is one question that is not open, and that is the question of whether or not the government is acting legally. It is not.  

          It doesn’t matter if the judge is “a Liberal appointee” he is the authority making the call and – until such time as his judgement is over-ruled on appeal – his call is the law.

          Do any of you hard-core Con supporters even have a gag reflex? The stuff they are forcing down your throats has to be doing some kind of serious damage.

          • It’s not total disregard for the law.  It’s the exact opposite.  It’s careful regard for the law.  Careful to say that a specific part of the Act is unconstitutional.  And democratically legitimate in that the government is doing exactly what it said it would do before and during the election campaign that resulted in a majority mandate. 

            Those views don’t change the fact that I agree with you that the judgement is legally correct on procedural grounds, and I don’t think I or Cosh or anyone else in this thread made reference to who appointed the judge.

        • Um, yes.  To everything you just wrote.  That’s sort of what I was saying (and, in fact, exactly what I was saying if you read my posts above), except that at no point did I suggest that the court should defer to the government because it’s the government, as you imply.

  10. Matt Ramsden, like the judge, is transparently wrong. S. 47.1 evinces no intention of limiting in any way the authority of Parliament to change the provisions of Part IV The attacked bill doesn’t exclude any grain from those provisions, it merely changes the provisions. The whole point is frivolous.

    Why, yes, the result is that there is no more monopoly on grains. So what? S. 47.1 does not require any such monopoly. It only purports to limit certain actions by Parliament, of a kind which Parliament has chosen not to take. If you’re really too stupid to understand this… congratulations! You’re qualifed to be a judge!

    • So in the new Canadian Nirvana, laws are enforceable only when pronounced enforceable by noted internet expert “ebt” who will declare each one transparently wrong or transparently right by subjecting each law to the scrutiny of his incredible perception.

      You’re going to be a busy fellow, ebt. With great power comes great responsibility.

  11. This judge should be removed from the bench.  I’m only a second year law student and even I could tell as soon as the ruling came out that it was bunk.  It’s obvious that a statute passed in parliament with a simple majority can be repealed by parliament with a simple majority.  You can’t attach conditions to repealing a statute.  If the constitution doesn’t prevent the statute from being repealed, you can repeal it.  Simple as that.  The author is right, this reeks of political interference, the timing, rush to get the ruling released and the complete lack of legal reasoning all speak to a motive of wanting to undermine the will of parliament.  If this argument was made in good faith the judge should be kicked off the bench because it shows a complete lack of comprehension of parliamentary power.  If it, as I expect, wasn’t made in good faith and was made to interfere with parliament then he should be kicked off.  Either way, he shouldn’t be on the bench. 

    • Wow – you should stop studying the law, obviously you know everything already.

      • Relax, Jan – you’re already peerless when it comes to ad hominem posts.

        • Thank you, given your expertise in the field, I value the compliment.

          • This comment was deleted.

          • I did.  He’s a self-admitted second year law student calling for a sitting judge to be removed from the bench because he disagrees with his ruling.  He obviously hasn’t learned anything. 

          • No, you mocked him.

            He disagrees with the ruling because he thinks the justice is playing politics and shouldn’t be.  He will likely soon find out that many Canadian judges appear to relish the opportunity to engage in politics under cover of some esoteric legal issue or other and, rather than face sanction for it, are applauded by the likes of you. Thankfully, Harper has a nice long stretch coming up to appoint some better ones.

          • Of course I mocked him. I thought he was acting like an idiot.  Is there an anti-mocking rule on here?

    • Read the judgment again.  Read Cosh’s article again.  The decision turns on whether or not there was notice.  Assuming notice is required* the decision is legally correct.  Cosh doesn’t dispute that, in fact.  He dislikes the gilding of the lily that follows in the rest of the judgement.  In my view the timing can be explained by wanting to provide the legislative process an opportunity to fix a perceived error.  Setting aside the notice issue, I agree that 47.1(b) impermissably interferes with parliamentary supremacy. 

      Two other quibbles with your post: I don’t agree that “it’s obvious that a statute passed in parliament with a simple majority can be repealed by parliament with a simple majority.”  Check out the Supreme Court of Canada’s consideration(s) of Diefenbaker’s Canadian Bill of Rights as to why the issue is not “obvious”.  And I would suggest that whatever law society you propose to enter would have issues with you publicly calling for a judge to be “kicked off” the bench because he made a judgement in bad faith.

      *I haven’t turned my mind to the issue, but it seems either safe or easily appealable if wrong; I do find it curious that no opportunity to adjourn to provide notice was provided.

      • I find Justice Campbell’s comments on the “notice of constitutional question” among his strangest, and that’s saying something.  The government was the Respondent in this case – it seems to me highly unusual – perhaps unprecedented – to consider a respondent in general, and the federal government in particular, to be responsible for providing “notice of constitutional question”.

        The reason I find this so perverse is that the reason for the rules regarding notice of constitutional question is to ensure the government is made aware that someone is challenging the validity of legislation on constitutional grounds, so they can intervene (if not already a party) and defend it.  Justice Campbell has turned that reason on its head and decided that the government’s failure to (essentially) inform itself of its own intention to raise a constitutional point in defense was fatal to its case.

        • You appear to have forgotten that there are ten provincial Crowns that may have had an interest in seeking leave to intervene on the constitutional point. Very Harperesque. 

          • With the exception of Octagon’s last sentence, yes to both of you.

  12. I speak as a former Saskatchewan farmer who left farming partly because of the government’s interminable meddling in my affairs. I wanted to sell my wheat, and barley, along with my flax and cattle, to whomever I wished. The fact that Canadians farmers have gone to jail for selling their wheat outside the board is an outrage.
    I don’t care if every farmer in Canada, save one, votes to save the Wheat Board, that farmer has the fundamental right to sell his wheat, barley, chickpeas. lentils, birdseed, lavender, cattle and hogs to whomever he or she wishes.
    And the rest have the right to organize the Canadian Agricultural Producers Co-op, or whatever they might call it, to sell their products to whomever. If this is actually a free country, then that is the bottom line.  

    • Bravo Reesor!!! Tell it like it is. Is Canada a freedom loving country or not? The CWB can be a purchasing agent like any other. Farmers will and should be allowed to sell to the highest bidder when they want to and not when they are told to. Being fortunate enough to be born in Canada to American parents, I claim dual status and voted with my feet some 30 years ago when I finally realized that even the most conservative politician had to pander to the center and left in order to get elected.

  13. This whole controversy could have been easily avoided by the simple expedient of first repealing section 47.1 of the CWB Act. What kind of buffoons are steering the ship?

    • I suppose that the answer is that a government relies on counsel’s advice for this sort of thing and may have been advised incorrectly.
      Or not. In any case, farmer’s will soon be as free as hairdressers or lawyers to sell their goods and services to whoever they wish.

      • Allow me to be cynical for a minute.  Maybe this is win/win?  If there is no challenge, or if the challenge loses, the Tories win.  If there is a challenge and they lose (as has happened), it reinforces certain messages to certain parts of the Tory base, and maybe more donations come in.  And then plan B, what you say should have been plan A, gets tried.

        • Quite frankly, I don’t care if what the Cons are doing is legal in the narrow legal sense, or not. What they are doing is right. The law was wrong. Farmers in certain parts of Canada can be and have been jailed for selling a legal product, that they produced legally. If Canada is a country that is free, then this law was as wrong as it coulde be and has to be thrown out, overturned, ignored, or whatever, and from here on, serve as a warning that Candians fundamental rights cannot be extinguished by a majority vote.

  14. The Wheat Board was needed 50 years ago when the farmer in Forget, Saskatchewan had no idea what the price of wheat was trading for in Chicago, and grain companies could rob him blind.  But today even rural farmers in India know what the wheat price is in Chicago, because of the internet.

    Any farmer today can open his own futures account with an online commodity broker and hedge the price he receives for his grain.  Again, no need for the Wheat Board.

    Saskatchewan has become dominate in pulse crops (i.e. lentils) over the last two decades, entirely without the benefit of a monopoly marketer.

    Ontario and Quebec wheat farmers get by without a monopoly marketer.

    The Wheat Board discourages innovation and value-added food production in wheat products because it blocks the vertical integration required.  Without the ability to vertically integrate, value-added becomes a spread business, like gasoline refining, which is an extremely risky business because one is forced to become a price taker at both ends.  

  15. The CWB must like this judge.  They will fight to keep their monopoly as they are a big fish in the world of commodity trading and the outcome is being watched.  Anyone interested may enjoy this article, written in layman’s terms, just how important this is.
     
    “The ever-escalating price of wheat and the newfound strength of grain markets were excellent news for the new investors who had flooded commodity index funds. No matter that the mechanism created to stabilize grain prices had been reassembled into a mechanism to inflate grain prices, or that the stubbornly growing discrepancy between futures and spot prices meant that farmers and merchants no longer could use these markets to price crops and manage risks. No matter that contango in Chicago had disrupted the operations of the nation’s grain markets to the extent that the Senate Committee on Homeland Security and Governmental Affairs had begun an investigation into whether speculation in the wheat markets might pose a threat to interstate commerce. And then there was the question of the millers and the warehousers—those who needed actual wheat to sell, actual bread that might feed actual people.
     
    The grain merchants purchased Minneapolis hard red spring much earlier in the annual cycle than usual, and they purchased more of it than ever before, as real demand began to chase the ever-growing, everlasting long. By the time the normal buying season began, drought had hit Australia, floods had inundated northern Europe, and a vogue for biofuels had enticed U.S. farmers to grow less wheat and more corn. And so, when nations across the globe called for their annual hit of hard red spring, they discovered that the so-called visible supply was far lower than usual. At which point the markets veered into insanity.
     
    Bankers had taken control of the world’s food, money chased money, and a billion people went hungry.
     
    The wheat harvest of 2008 turned out to be the most bountiful the world had ever seen, so plentiful that even as hundreds of millions slowly starved, 200 million bushels were sold for animal feed. Livestock owners could afford the wheat; poor people could not. Rather belatedly, real wheat had shown up again—and lots of it. U.S. Department of Agriculture statistics eventually revealed that 657 million bushels of 2008 wheat remained in U.S. silos after the buying season, a record-breaking “carryover.” Soon after that bounteous oversupply had been discovered, grain prices plummeted and the wheat markets returned to business as usual.”
     
    http://theglobalrealm.com/2011/02/04/the-food-bubble-how-wall-street-starved-millions-and-got-away-with-it/

  16. How do you square with government defense of restrictions on the sale of milk, eggs and poultry? Completely unprincipled?

    • You don’t square it. That’s why I support the Conservatives on Wheat Board policy but resigned in the middle of the e;ection last spring -from the board of a prominent minister, in protest over their avowed support of supply management. That sort of nanny statism has no need nor place in a trading nation.

    • Supply management should go the way of the dodo bird, where it belongs.

      Interestingly, the Occupy Vancouver protestors had the nuking of supply management as one of their 59 demands.

  17. All their moves have been toward destroying the wheat board. They loaded its board with loyal toadies, and they have expressed their interest to privatize/dismantle it.

    • Nothing wrong with that. 

  18. Democracy doesn’t happen one day every four years.

  19. Everyone keeps talking about democracy and one farmer one vote. Maybe instead we should look at the number of acres a farmer plants, and base the vote on that. There is an overwhelming  majority of acres that want to opt out of the board but are thwarted by the the so called majority. Should a farmer planting 80 acres of wheat have the same say as one planting 4000???

  20. It’s amusing to listen to those who’ve never set foot on a farm talk about “wheat growers” as though that’s the only crop they ever grow, and without the CWB, they’ll all get taken over. If one has any grain farming experience at all, they know that “wheat growers” farm multiple crops every year, and that the majority of these crops, including feed wheat, are non-board. 

    You can’t grow the same crop on the same field year after year after year. If you don’t rotate your crops, you lose risk losing them to disease. At very least, your yields will suffer. Therefore, every prairie farmer who grows and sells human consumption wheat (durum or hard red spring) to the CWB also grows a whole slew of non-board crops like canola, barley, oats, flax, feed wheat (an optional board product), and feed peas. 

    The mythical single-product “wheat grower”, helplessly dependent on the CWB for his very existence, does not exist. Even ardent CWB supporters generally don’t argue they’ll go out of business without the board. When they do it is a rhetorical excess not grounded in fact. CWB supporters just happen to believe that they get a better price for their wheat through the board, while CWB opponents feel the opposite. Obviously, both groups feel very strongly about this issue. Anyone who has ever sat in a small town cafe and listened to two farmers on the opposite side of the CWB divide go at it will not soon forget it! 

    • This is also one reason the permit-book “democracy” beloved of CWB advocates is sort of bogus.

    • Very eloquently put.  The same people who decry how the government acts paternalistically toward First Nations peoples have no problem with discussing how keeping the CWB monopoly is “best” for the poor ‘clueless’ farmers.  It is so patronizing.  All is blathering about the “small farms going out of business’.  Gee, you never hear them crying about incompetent small business going under….what is a farm if not a business?

      • So the farmers who want to retain the single desk are what -misguided?  I have no opinion on whether disbanding the CWB is a good idea or not.;  What I have a problem with,  is the way Harper is going about it. 

        • “What I have a problem with, is the way Harper is going about it”.  The Conservatives attempted to change barley marketing (after a plebicite on the issue).  Guess what, the courts ruled against the Conservatives and it was thrown out.  The judge in that case was adament that parliamentary legislation was the only path to CWB change.  Parliament has passed the legislation; what would you propose that the government do differently? 

        • If the farmers want to use the CWB they should have that “option” but those that want to go another way, should have that “option” ….just as the growers in the central provinces of Quebec and Ontario do.  What is “misguided”, is that the single desk is mandatory but only on the prairies and in Northern BC and yet people think this perfectly acceptable because somehow it is in somebodies “best interest” and even if that individual doesn’t want it we will ram it down their throat because the majority wants it and we think it is good for them.
          As for the way Harper is going about it…what about the CWB?  Why don’t they just agree to become a voluntary organization by not persecuting…oops prosecuting farmers who sell their grain elsewhere? 

          • The marketing choice argument is a red herring. The CWB will collapse without an absolute monopoly, and its supporters know it. Which is why they’re fighting so hard to keep the monopoly. As soon as farmers have the right to opt out, CWB has no way of guaranteeing a supply of Canadian wheat to its large importing clients. Without that guarantee, the importers will either demand discounts or simply refuse to sign a contract. If the CWB cannot negotiate massive bulk export contracts, it’s lost its one and only justification for existence. 
            However, I’ve never understood how this argument, valid though it is, trumps the rights of those 40% or so of farmers who loathe the board and want nothing to do with it. Also, while the loss of a single desk may hamper exports at first, it will certainly open up more processing opportunities for farmers right here in Canada – something that is currently not possible for them. Because the CWB is so totally dependent on its monopoly buying power to guarantee delivery to its export markets, they can’t allow the farmers to get silly entrepreneurial ideas about processing their own grain. Only the almighty CWB decides what gets done with their grain. If a farmer wants to develop a processing business with his own grain, he must buy it back from the CWB, at a price determined by…. the CWB. Naturally, that price is set to dissuade such insubordination. 

        • They’re not misguided. But they are very attached, and often very sentimental about, the board. It’s one of those prairie artifacts that is difficult to understand unless you’ve lived it. 

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