'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?

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.

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