‘Disregard for the rule of law’

The Federal Court has ruled that the government’s attempt to reform the Canadian Wheat Board violates the legislation that governs the board.

In a ruling today, Federal Court Judge Douglas Campbell said the government violated the Canadian Wheat Board Act by not holding a vote among farmers before introducing legislation eliminating the Wheat Board’s monopoly position. Judge Campbell admonished the government for not consulting with farmers and “simply pushing ahead” with plans to essentially abolish the board. “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,” the judge ruled. He added that the government had to be “held accountable for [its] disregard for the rule of law.”

During QP this afternoon, the NDP’s Pat Martin suggested that perhaps the Goldring precedent—removing oneself from caucus on the allegation that one broke the law—should apply here.




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‘Disregard for the rule of law’

  1. I’m glad to hear this ruling!  It always seemed to me that if the Wheat Board Act includes a provision for a vote of the membership before disbanding the thing, there ought to be a vote of the membership before disbanding the thing!  I don’t know whether the Wheat Board is a good thing or a bad thing, I make no comment on that, but regardless I think the law needs to be adhered to.

    I also have to say the news of Pat Martin’s comment made me laugh.

  2. See, the farmers who massively voted Conservative had no idea that the Tories would do this. Honest! Judge Douglas Campbell said so!

    • I know I’m not a western farmer, but if I was a western farmer and inclined to vote Conservative, I wouldn’t have worried about the Wheat Board nonsense during the election campaign because, after all, the Wheat Board Act gives me a vote before it is disbanded.  I’d be quite comfortable voting Conservative for other reasons, knowing I’d have a vote on the final say on this issue.

      Did the Conservatives ever explicitly say they wouldn’t hold a vote in accordance with the Act?

    • There are approximately 60,000 farmers who are CWB permit holders or about enough to win a three way split in three ridings. Spread across Manitoba, Saskatchewan and Alberta, they are a drop in the bucket, electorally. There are people in every riding who vote NDP, Liberal and Conservative. Some of them belong to the minority group of farmers, some belong to the much smaller subset of famers who are CWB permit holders and some (a majority) do the same jobs people in cities do (teacher, lawyer, doctor, groundskeeper etc.). It’s a fallacy that farmers voted for this or that CWB supporters voted Conservative, because every actual plebsicite on the question has favoured continuing the single desk selling by a wide majority. Stop blaming the vicitms for the tragedy this goverment is visiting upon them

      • While the point generally is well taken, I would be surprised to learn there are very many ridings with a farmer presence where the Liberals poll above 15%.

      • The CWB plebiscite, if that’s what you’re talking about, has many critics about matters ranging from its wording to the voters’ list, as you may know. 

        • Then hold a real vote.

        • Funny, the long gun registry survey has holes you could drive a truck through,  but the Cons use it as definitive proof that front line police overwhelmingly support abolishing the registry. 

        • Cons don’t like surveys, statistics and facts. Apparently they’re not as reliable as Gazebo Clement’s gut instinct.

    • That’s a hand-waving argument that might pass muster in the media, but not a court of law.

    • It was rightly pointed out to me in this forum that farmers are a minority in their own constituencies.  A vote by the many as the will of the few is a tyranny of the majority.

  3. Certain pols and commenters who claimed to be well versed in the matter, spouting off terms like “parliamentary sovereignty” without knowing the context, are looking pretty foolish right now.

    • They don’t feel foolish, they’re kvetching about “activist judges” today.

      Talking points mean never having to admit you’re wrong.

  4. Laws are such pesky things.

    • Yes, especially when a Federal law is not applied across the entire country.

      Farmers East of the Man/Ont border have marketing freedom,
      farmers West face jail time.

      • Depends on what the farmers wanted at the time.

  5. Huh.

    I’m moderately surprised by this ruling…I would have thought that the ruling would have declared the farmer vote portion of the CWB Act to be unenforceable.

    So, are we off to the SCC?  It will be interesting (and probably sad) to see how the various players spin this development.

    • If Harper really really wants it done, I suspect the easiest thing to do is change the Act so that farmer’s are no longer entitled to a say in changes to the board.

      • That course of action does, indeed, seem quite probable.

        But now that a high level court has found that specific section of the existing act to be valid (ie not ‘obviously’ unenforcable as was commonly suggested just a month or two ago), it is hard to imagine that the folks who launched the challenge in the first place will just sit back and fold their hand.

        I’m fairly sure that if they’ve gotten this far they will return to the court to challenge this obvious ‘end run’, and then I wouldn’t be at all surprised for that same court to issue an even ‘clearer’ ruling.

        Again, it will be interesting to follow the twists and turns of the CWB saga.

        • I believe it has to go to the Federal Court of Appeal before the Supreme Court of Canada.  It’s not totally clear from the article, but I believe this ruling was from the Federal Court Trial Division, so its decisions are appealed in the first instance to the FCA, then FCA decisions can be appealed to the SCC.  I think it’s an interesting case, I’m not sure the judge is right here.  I can see potential merit in both positions.

          • Hmm, yes, FCA first, then maybe SCC, that makes more sense than this already being ‘in line’ to go to the SCC.  Thanks for the clarification.

            From here I’d like to see this go to at least one more court (not necessarily all the way to the SCC), basically to either reverse it OR to add quite a bit more weight to the idea that this ‘poison pill’ provision in the old CWB act wasn’t quite as ‘obviously unenforceable’ as it was made out to be a few weeks ago.

  6. Ah, the storied Justice Campbell – decider of the infamous Benoit case.  FCA made pretty short shrift of his reasoning in that one.  I fully anticipate a similar result here.  Meantime, have your fun, Harperphobes!

    • Guess this shows how foolishly optomistic I was above…

  7. ‘The law requires a vote from farmers in order to add or remove grain from the wheat board’s marketing monopoly.’

    So I say instead of removing the grain from the monopoly, remove the penalties! 
    Then Western grain farmers can sell their own grain anywhere to anyone they please, without facing jail time.

    Friends of the CWB (any connection to Friends of CBC?) can’t do anything further until the legislation is actually passed.

    “…..(Judge) Campbell’s decision won’t necessarily affect the fate of the bill or the wheat board’s future, because all it does is declare that the law was broken;
     the court has no power to influence the process of legislation, and cannot test proposed laws against the Constitution or Charter of Rights and Freedoms unless and until they become law…”

    http://www.sunnewsnetwork.ca/sunnews/politics/archives/2011/12/20111207-150832.html

    • That’s the problem I have with Campbell’s decision here, based on the news report.  I just don’t see how one act of Parliament in 1998 enshrined some quasi-constitutional right to consultation and a vote, which right cannot be revoked by a subsequent act of Parliament.  That’s got me scratching my head, but certainly I haven’t read the full decision or the Acts in question.

      • also having not read the judgment i would suspect the new act wasn’t properly worded to eliminate the requirement that farmers have a vote. I further suspect the original act was not revoked, and was still extant.

        • The whole thing is just judicial mischief at the behest of the CWB.  The fundamental issue is “can the government enact a law to eliminate the CWB when the current law that will thereby be repealed requires a farmer vote before the CWB is eliminated”.  Justice Campbell, egged on by the CWB, decided “no”.  I am quite confident the appellate courts will have a different opinion, for a variety of reasons, not the least of which is the ability Justice Campbell’s decision would give to a government to fetter future governments by putting “poison pills” in EVERY law they enact.

          • The more you post, the more it becomes clear you are painfully out of your depth – probably unawares even to yourself. 

          • Well, I’ve only been in front of appellate courts a dozen times or so, so you could be right.  I also admit my view of Justice Campbell’s abilities as a jurist are tainted by having read he is the FC justice most overturned on appeal, but that could well be old data now.  I’ll try to be less delusional in the future.

          • Please do! 

  8. Milliken has already ruled that ‘Parliament is Supreme’, bet the Opposition coalition didn’t think their push for this ruling would be so helpfull to the Conservatives, eh

    Minister Ritz:

    “The Parliament of Canada alone has the supremacy to enact, amend or repeal any piece of legislation. This is a fundamental aspect of democracy,” Mr. Ritz said in a teleconference.

    “We will never reconsider western wheat and barley farmers’ right to market their own wheat and barley,” Mr. Ritz added. “Not only is our government convinced that we have the right to change legislation, we have the responsibility to deliver on our promises and give farmers in Western Canada the right to market their own grain.”

    http://business.financialpost.com/2011/12/07/court-says-farm-minister-broke-law-over-wheat-monopoly/

    • Does Ritz know what he is talking about? 

      • What part of the Ritz quote causes you to wonder if he knows what he is talking about?

      • His simplistic rendition of the supremacy of parliament. 

        • That should have gone under GreatWalls question.

          • If not parliament, then who?

  9. What I don’t get out of all this is the following:

    Why are the Conservatives so afraid to ask the farmers what their preference is?  This is a decision that quite literally only affects Western grain farmers.  What’s the problem with consulting them with a neutral plebiscite? (i.e. a plebiscite run by a neutral third party, such as Elections Canada)

    • The problem is that the Cons vehemently opposed the enactment of the CWB “poison pill” by the Liberals.  They aren’t afraid to ask farmers what their preference is (the Cons think the farmers have already indicated their preference – repeatedly – by overwhelmingly supporting them) – they’re being consistent with the position they took when the poison pill was enacted.

      • The canard that the farmers have overwhelmingly supported the Conservatives is just that: a canard.  It may well be true, but there’s no way of saying that the grain farmers in the prairies have voted majority conservative, given the population of people who aren’t farmers in their ridings.  Our ridings aren’t sorted by occupation.

        So I ask again, why not just hold a(nother) plebiscite?

        • Definition of CANARD:

          1a : a false or unfounded report or story; especially : a fabricated report

          b : a groundless rumor or belief

          So what part of “farmers overwhelmingly supported the Conservatives” is false, or unfounded or groundless?  The fact non-farmer’s may have also supported them does not make the statement “farmers overwhelmingly supported them” false.  Ridings may not be sorted by occupation, but it is quite easy to determine the occupational demographic of a riding and if said demographic establishes 50% of voters to be farmers and 80% of the voters in the riding vote Conservative, I propose it’s a stretch to argue that support for Conservatives among farmers isn’t overwhelming.

          In the context of the above, the proper questions isn’t “why not hold another plebiscite”, it is “why hold another plebiscite”, i.e. why would a government absolutely and totally convinced it has widespread support to do something nonetheless accede to the hue and cry of its political opponents to check one more time?

          • “… but it is quite easy to determine the occupational demographic of a riding and if said demographic establishes 50% of voters to be farmers and 80% of the voters in the riding vote Conservative, I propose it’s a stretch to argue that support for Conservatives among farmers isn’t overwhelming.”

            Except you HAVEN’T determined that.  You’ve pulled numbers out of thin air and presumed it to be fact.  If it is quite easy to determine, I say crunch the numbers and determine it.

          • Except I haven’t:

            http://www.elections.ca/content.aspx?section=ele&document=index&dir=pas/41ge&lang=e

            At any rate, I’m no more inclined to (re)crunch my numbers and (re)determine my assertion that western farmers overwhelmingly supported the Conservatives than the Conservatives are to flip flop on a plebiscite and ask farmers to tell them – again – what they already know.

            Rather, I suggest it’s time for you to support your assertion western farmers don’t support the Cons on dismantling the CWB, despite voting for them.

          • Maybe because the law in place says there has to be a vote.  You can’t claim to support the rule of law and then pick and choose which ones you obey, based on your political agenda.

          • You most certainly can if you’re the law maker, having just achieved a majority government, and if the law you enact is within the realm of powers the constitution affords you.

          • You can pass something, but it doesn’t mean it won’t get bounced by the courts.  Cons have trouble acknowledging the charter. 

          • There was no Charter argument being made to Justice Campbell.

          • GWOF is right there, this was not a Charter case, at least not the determinative part of it.

          • So do it.  All I see are assertions.  Go poll Prairie grain farmers and find out how they voted. An election is not a plebiscite, BTW.

      • Did they oppose it?  Check out Garry Breitkreuz’s opinion on the ‘opt-out’ clause when Bill C-4 was debated in 1998.  The following outlines 5 amendments he proposed to the bill that ultimately introduced the so-called “poison pill”:

        http://www.garrybreitkreuz.com/breitkreuzgpress/cwb1a.html

        As he states, his 3rd amendment is in FAVOUR of this very opt-out clause!  He was for it in 1998, now today he’s now just upset that with the clause in place, the plebiscite came back in favour of maintaining the board, not dismantling it.

        • The issue isn’t the “opt out” clause – it’s the “poison pill” clause, which Breitkreuz doesn’t really say he supports or doesn’t support, other than suggesting it asks the wrong question.  I stand by my comment that, Breitkreuz apparent indifference aside, the broader Reform/CPC view of the “poison pill” clause was highly negative.

          As for the CWB – commissioned and highly tailered survey that suggested support for maintaining the board, that was in no way shape or form the “plebiscite” contemplated by the CWB Act.

          • Um, newsflash: the ‘opt-out’ clause IS the ‘poison pill’ clause – section 47.1 of the Canadian Wheat Board Act.

          • Fair enough – now how about addressing the main contention – the Reform/Cons did not support the CWB Act amendments, including the “opt-out/poison pill” clause, instead of blowing smoke?

          • How about you prove your point for a change?  Show some documentation that shows Reform was against the opt-out clause, and prove Breitkreuz was flying solo with his amendments rather that toeing the party line?

          • Well, off the cuff, there’s this:

            http://www.theglobeandmail.com/news/opinions/jeffrey-simpson/remember-the-reformers-theyre-still-here/article2254120/

            and this:

            http://www.calgaryherald.com/business/Opinion+good+ugly+wheat+board+demise/5816785/story.html

            (hint:  second paragraph is the money quote)

            and the theme is well reflected, if not directly stated here:

            http://www2.macleans.ca/2011/11/06/want-political-change-talk-to-a-farmer/

            but, by all means, exercise your right to hold to the position the Reformers/Cons zeal to abolish the wheat board was always predicated on a vote. 

          • “by all means, exercise your right to hold to the position the
            Reformers/Cons zeal to abolish the wheat board was always predicated on a
            vote.”

            Um, you have completely missed what I’m arguing.  My point is on the narrower issue of the prior Reform Party’s support for the opt-out/poison pill clause, which they did indeed support in 1998, and now oppose because the majority they were hoping would vote to kill the CWB instead voted to maintain it.

            NONE of what you cite even mentions the opt-out/poison pill provision.  Absent evidence from you to the contrary – which you have not yet provided – my position stands proven.  The Reformers/Tories supported the opt-out right up until the point where the plebiscite came back in favour the CWB – an inconvenient truth for them.

  10. The National Farmers’ Union is correct to see this as an issue for the Senate. The Federal Court ruled that Minister Ritz has violated the legal requirements of the Canadian Wheat Board Act for meaningful consultation and a democratic vote by farmers on its single desk monopoly. In his ruling Judge Campbell states the government’s actions had violated “a fundamental constitutional imperative”. He quotes Chief Justice Fraser who ruled “When government does not comply with the law, this is not merely non-compliance with a particular law, it is an affront to the rule of law itself “. Regardless of the views of individual senators on the Canadian Wheat Board, the upcoming vote of the Senate on the Federal Government’s Bill C-18 to eliminate the Board’s single desk is now a constitutional question. Is government bound in the same way as individual citizens to the rule of law? If the Senate ignores the recent Federal Court ruling, it will be forfeiting its constitutional responsibility by approving an action that has been ruled illegal. Its only appropriate courses of action are to delay approval of the bill awaiting the outcome of the Federal Government’s appeal or to reject it outright. If the Senate is unwilling to uphold the rule of law in this matter, it is rejecting the rule of law itself and the Senate’s own institutional responsibility to protect one of the most basic building blocks of Canadian democracy.

    We will all soon be shouting down with corrupt Harper, down with the corrupt Senate, because if we don’t and Canada yields its rationality to a misanthropic tyrant like Harper and his regime of liars, fools and criminals, we will be writing Canada’s epitaph; “was a decent place to live but not special enough to stand up for, or preserve” /F**k You Canada, but first, F**k Harper and his criminal entourage…

    • I trust you have a bib to catch the foam oozing out of your mouth.

  11. I was not surprised last week when the current government used its majority in the House of Commons to ram through a Bill to dismantle the Canadian Wheat Board.
    What continues to surprise me, however, is the contempt this government has shown toward the farmers who will feel the effects of the legislation.

    The Canadian Wheat Board Act is clear: The Government of Canada has a legal obligation to consult with farmers before making any changes to the way the Canadian Wheat Board currently operates, something they have refused to do. Instead of respecting the rule of law, the Harper-led government argues that their majority win in the last election gives them the authority to move forward without consulting with farmers.
     
    Even faced with the result of a plebiscite initiated by the Wheat Board, which found that 62 per cent of wheat farmers and 51 percent of barley farmers wanted to maintain the Wheat Board in its current form, the Harper government remained stubbornly unfazed.

    The process is only half over as the Senate is now beginning the legislative review of this Bill.Ê Liberal senators have proposed to bring the Senate’s Agriculture Committee to Alberta, Manitoba and Saskatchewan in order to conduct hearings on the ground, where these farmers, their livelihoods and their families will face the consequences of the Harper government’s ideological agenda.

    All senators need to hear what the more than 38,000 farmers who voted strongly in support of the Board’s single-desk marketing system have to say. Studies have shown that by selling their grain through the Board, Western farmers receive $800 million more than they would by selling their product on their own. Following the Harper government’s changes, farmers will be at a significant disadvantage, as they will be left to sell directly to a few large multinational corporations that control the market. Western farmers understand the challenges they will be facing from now on, but the government refuses to listen.

    Instead of blindly staying the course on this ill-advised policy, Conservative Senators should seize this opportunity to travel to Western Canada to hear from farmers. Grain farming is their business, it’s their livelihood, and they have a right to be heard. More importantly, it is our duty as senators to listen to their point of view.

    • Going out with a bang, eh Senator!

      “Instead of blindly staying the course on this ill-advised policy, Conservative Senators should seize this opportunity to travel to Western Canada to hear from farmers. ”

      Don’t know about senators, but I vaguely recall a lot of Conservative MP candidates were out and about in Western Canada last April and I suspect most of them heard volumes from farmers about Conservative agricultural policy, including the promise to eliminate the CWB.  If you accept (although many who we’ll be hearing from shortly don’t) that a vote for a Conservative in rural western ridings was at least in part a vote for their agricultural policy platform, it’s pretty easy to draw a conclusion as to how much support for that platform exists among said farmers – the Conservative percentage of the vote in those ridings approached 80% in many cases.

      As for the survey, it was commissioned by the CWB and was carefully designed to produce the result the CWB wanted.  I suggest a far more significant indicator of western farmer preferences is the most recent election result.  Here’s an idea for those who dispute this – in about 4 1/2 years time, an opportunity will once again present itself to gauge the support of farmers for single-desk marketing boards – it’s not too early for the Liberals and NDs to start building their policy platforms around maintaining and expanding such boards and reaping the political rewards from voters who Senator Banks and others would have us believe are clamoring for them.

      • Except you base your entire argument on a ridiculous premise:

        “If you accept (although many who we’ll be hearing from shortly don’t) that a vote for a Conservative in rural western ridings was at least in part a vote for their agricultural policy platform”

        The CWB is not the ONLY issue farmers would have placed their vote on.  Voting for a party does not imply support for all of a party’s policies.  Example: I support dismantling the CWB (Yes, I do).  I also support running a mandatory long-form census.  The census was a bigger issue for me than the CWB, so I didn’t vote Conservative last election.

        By your logic, my vote means I support the CWB 100%, whole-heartedly.  Which is bunk.

        Likewise, farmers may have voted Conservative despite their views on the CWB, not because of them.

        • By my logic, the Conservatives campaigned on, among others, a promise to get rid of the CWB and got elected.  If some farmers voted for them despite their views on the CWB, it must not have been a particularly important issue to them and, at any rate, they’ll get a chance for a “do over” in about four years (unless, of course, the Cons put their OWN poison pill in their amending legislation and Justice Campbell’s still around four years hence).

          • Or maybe they voted for them despite their views on the CWB only because they thought the government would comply with the law and ask them directly about that specific issue before moving ahead.

            This is in effect what Justice Campbell is saying.

    • Senator Banks:  I love the irony of an unelected Senator purporting to lecture the rest of us on a duly elected government having contempt for democracy.  You’re awesome.

      • I think the issue is less black-and-white than that.  I quote the following from the judgement against the minister, which I thought to be quite insightful:

        “The greatest achievement through the centuries in the evolution of democratic governance has been constitutionalism and the rule of law. The rule of law is not the rule by laws where citizens are bound to comply with the laws but government is not. Or where one level of government chooses not to enforce laws binding another. Under the rule of law, citizens have the right to come to the courts to enforce the law as against the executive branch. And courts have the right to review actions by the executive branch to determine whether they are in compliance with the law and, where warranted, to declare government action unlawful. This right in the hands of the people is not a threat to democratic governance but its very assertion. Accordingly, the executive branch of government is not its own exclusive arbiter on whether it or its delegatee is acting within the limits of the law. The detrimental consequences of the executive branch of government defining for itself – and by itself – the scope of its lawful power have been revealed, often bloodily, in the tumult of history.”

        • I’m perfectly aware of the proper relationship between courts and legislatures, thanks.  I kind of figured that out in first year law.

          Fact is, generally for a court to disallow or strike down a law passed by Parliament, it has to be demonstrated that the law is:

          1. offside the Charter;
          2. otherwise offside the Constitution (e.g., violates division of powers or some other non-Charter provision of the Constitution); or
          3. offensive on “fundamental justice” grounds, i.e., the sort of grounds that are often invoked in administrative law cases.

          I’m not convinced at this point that Justice Campbell had those kinds of valid grounds to strike downt his law.

          • Well, now that we’re past the first year law discussion, the ruling really brings a larger question which will no doubt have to be raised before the SCC.  As the ruling states, although Parliament cannot bind itself as to the ‘substance’ of future legislation, it can bind itself as to the ‘manner and form’ in which future statutes are enacted.

            Justice Campbell ruled Section 47.1 of the CWB Act falls within this ‘manner and form’ provisino, although I would presume any future appeal would centre around this issue.

            I have no personal opinion as to which side of this debate is right, although undoubtedly it would be a major precedent set should the issue come before the Supreme Court.

            That debate, aside, the reason I responded to your post is that, in isolation, it seems to suggest that democracy begins – and ends – with elections.  Which is not a fair comment at all.

          • Fair enough.  There’s a good discussion (‘cept for the usual partisan trolls, of course) of that “manner and form” point over at Colby Cosh’s blog.

            There are a number of good points raised there, but a good one Cosh raises is this:  you could just as easily have the Conservatives put a “poison pill” provision like this in gun-control legislation, so that, for instance, a future Liberal or Dipper government could be similarly hamstrung in trying to bring back the long-gun registry.  So to those Con-haters who think this judgement is fabulous:  careful what you wish for.

  12. I don’t see how a past parliament can bind a future parliament.  Or a minority of citizens can dictate public policy to the majority, when Charter Rights are not involved.

    Do you guys really want the Conservatives to insert a clause into the abolition of the long-gun-registry law that in order to create a new registry that the majority of gun owners have to vote for it a  plebiscite before it can be imposed?

    • That would certainly be giving the Liberals a taste of their own medicine, wouldn’t it?

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