Farmers bound to ludicrous wheat law

[Fransisco]

http://www.torontosun.com/2011/12/08/farmers-bound-to-ludicrous-wheat-law

Farmers bound to ludicrous wheat law

By Brian Lilley,Parliamentary Bureau

You know, I thought that people on the left were against sending people to jail and wanted to make sure we didn’t overcrowd our prisons.

Their reaction to Wednesday’s court ruling on the Canadian Wheat Board makes it look like they support jailing farmers, but not criminals.

Justice Douglas Campbell, a Chretien appointee to the Federal Court, ruled on Wednesday that the government was breaking the law by not having western wheat and barley farmers vote before ending the monopoly of the Canadian Wheat Board.

Right now, any farmer on the Prairies who sells wheat or barley to anyone but the wheat board can be fined and sent to prison for up to two years.

And farmers have gone to jail for selling wheat and barley, or in the case of Jim Chatenay, donating it to a 4-H club in Montana. The Liberal agriculture minister at the time, Ralph Goodale, wasn’t bothered by that.

He defended the wheat board, jail time and all, saying most farmers wanted the wheat board monopoly.

Of course, most gun owners didn’t want the gun registry, but Goodale backed that. Like most Liberals, he’s big on government regulation and jailing the innocent, while going soft on actual criminals.

That the CWB or any of these farm marketing cartels still exist is a marvel in a country that claims to believe in free trade. That people can go to jail for selling product they grew on their own land with their own labour to someone other than the government-designated body should be considered unacceptable to all Canadians.

Justice Campbell said the government’s attempt to right this wrong is in violation of the law because there was no consultation and no vote by the farmers involved.

He pointed to section 47.1 of the Canadian Wheat Board Act which says: “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.”

The problem is that this provision is not worth the paper it is printed on.

A fundamental principle of parliamentary democracy is that no parliament can bind the actions of a future parliament.

This is the principle that leaves ideas like balanced-budget laws or laws requiring a referendum before a tax hike unworkable in Canada. A vote in the legislature to change a law does not require the old law to be changed or repealed.

Strangely, some supporters of the wheat board see it that way.

Stewart Wells, a farmer elected director of the CWB, appeared on Byline and claimed that the government could repeal Section 47.1 but could not pass a law to end the monopoly. This is ludicrous.

We elect governments to pass laws, and as elections come and go laws are changed.

Would the people now calling on the Harper government to obey Justice Campbell’s ridiculous ruling feel the same way if this were about the gun registry?

Imagine for a moment the Harper government writing a clause into Bill C-19 that said no future Parliament could bring back a long-gun registry without consultations and a majority vote by gun owners. Would Justice Campbell, the Liberal appointee, uphold that clause? Would the NDP, the Liberals and the consensus media be calling on the government to listen to the court?

They wouldn’t do it for the gun registry and they shouldn’t do it for the wheat board.

— Lilley is the host of Byline on Sun News Network

[Fransisco]

http://www.ottawacitizen.com/opinion/Parliament%20change/5832021/story.html

Parliament can change law

The Ottawa CitizenDecember 9, 2011 7:19 AM

The Federal Court has decided the government’s legislation making changes to the Canadian Wheat Board is an “affront to the rule of law.” This is a serious finding, but it was not an inevitable conclusion. It required the court to give weight to a particular interpretation of another law, and to decide that what Parliament meant to say isn’t precisely what it did say.

What Parliament did say, in Section 47.1 of the Canadian Wheat Board Act, added in 1998, is that no government can add or subtract any particular kind of grain to the wheat board’s mandate without consulting the board, and getting a favourable vote from farmers in a “voting process ... determined by the Minister.”

This government doesn’t want to add or subtract a type of grain. It wants to remove the board’s marketing monopoly — the “single desk” — so farmers can decide how and to whom they sell their products.

There is no disputing that this is a significant change. The court, largely because of historical context, decided that making such a change without farmers’ express consent runs counter to the wheat board’s democratic, farmer-controlled ethos.

It also found it silly that Parliament would need consent to tinker with the board’s marketing monopoly, but not to dismantle it.

All that may be so, but the government’s more narrow and technical interpretation of the law is at least equally reasonable. And whether that government interpretation is right or wrong, it’s certainly not a blatant insult to the values of democracy, as the government’s critics would have it. Any reasonable person could read the legislation and come to the conclusion that it only covers changes to types of grain.

And an overly broad interpretation of the law puts too much power over legislation in the hands of farmers, rather than the elected members of Canada’s Parliament.

The government is appealing the decision, as it should.

“Section 47.1 speaks,” the judge wrote. “It says: ‘engage in a consultative process and work together to find a solution’.” The court took the opportunity to lecture the government on the merits of listening to dissent. But it acknowledged that its decision does not render the government’s proposed legislation invalid.

That legislation should pass.

Ottawa Citizen

[Fransisco]

http://www2.macleans.ca/2011/12/09/fundamental-constitutional-imperatives-the-man-says/

Fundamental constitutional imperatives’, the man says

by Colby Cosh on Friday, December 9, 2011 7:53am - 2 Comments

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.

[liberty]

Cosh's piece is probably one of the best I have read on this issue so far. Bravo!

[craig]

“Section 47.1 speaks,” the judge wrote.
“It says: ‘engage in a consultative
process and work together to find a
solution’.” The court took the
opportunity to lecture the government on
the merits of listening to dissent."
The judge should maybe have taken the
opportunity to lecture the CWB on the
merits of listening to dissent. It
could also lecture the CWB board of
directors on working together to find a
solution. The CWB has made it very clear
. It is our way or no way. You shall
reap what you deserve.

[stubblejumper]

The elephant in the court ruling on wheat board

Judge's decision based on zoo case

By: Laura Rance

Posted: 12/10/2011 1:00 AM | Comments: 15 (including replies)
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This week's Federal Court ruling the Harper government broke the law when it introduced legislation to change the Canadian Wheat Board without consulting farmers adds a surreal twist to an already bizarre saga.

In this case, the elephant in the room is real -- Lucy, the lonely, long-suffering single elephant at the Edmonton City Zoo.


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It was Lucy's plight, and the efforts of animal-welfare advocates to hold the City of Edmonton accountable to the province's animal-welfare legislation, that prompted Catherine Fraser, chief justice of the Alberta Court of Appeal, to write the arguments forming the basis of Manitoba Justice Douglas Campbell's ruling.

Fraser wrote the rule of law is fundamental to democracy and that citizens have the right to expect their governments abide by the law.

"The greatest achievement through the centuries of evolution in democratic governance has been constitutionalism and the rule of law. The rule of law is not the rule of bylaws, where citizens are bound to comply with the laws and the government is not," she wrote.

"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."

As it turns out, Lucy the elephant is still in limbo. So, it seems, is the board.

Campbell ruled the federal government is bound by existing statutes to consult farmers and hold a plebiscite before making changes to the board's single desk. He went further to say farmers had a legitimate right to expect they would be consulted before such a fundamental change.

The judge agreed with arguments the opportunity to vote in a federal election wasn't the kind of consultation intended by the existing legislation.

The applicants didn't ask the court to quash the federal agenda. They only wanted a declaration the federal minister is bound by existing law.

Nor did the court rule government can't change the law, only that it must abide by the law while doing so. It's a peculiar nuance, but the government's response to it underscores its significance.

A defiant Agriculture Minister Gerry Ritz -- and later Prime Minister Stephen Harper -- declared the government is appealing the decision in a bid to get the law on their side. But if that fails, they are going to plow ahead with the legislation fundamentally changing the CWB's mandate and scope anyway. It's all being done on the guise of "marketing freedom."

This response adds a new layer of buffoonery to the whole affair, as evidenced by the national headlines that followed and the legal issues raised. The debate over wheat marketing is somewhat of an enigma to Canadians outside of the western farming community, but this affront to proper process is something anyone can understand.

The proposed changes to the Canadian Wheat Board are arguably the most significant policy change in the history of western Canadian agriculture.

They are being carried out with haste and a shocking lack of strategic planning. The changes are irreversible under international trade law and the repercussions are long lasting.

Justice Campbell offered some advice to Ritz, saying the existing statute calls on the government to "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," he said.

This government had time within its mandate to consult farmers and come up with a plan. The Aug. 1, 2012, date for transition to an open market was an arbitrary deadline it imposed on itself, based on a concocted need for urgency.

"The second, most important effect is that the minister will be held accountable for his disregard for the rule of law," Campbell ruled.

Despite the posturing, it's unlikely the new legislation can become law until the courts are finished with this issue.

As we've seen, court cases beget more court cases -- which inevitably leads to more acrimony.

But a civil society doesn't function very well if individuals or governments are only bound by the laws with which they agree. Welcome to the zoo

[wilagro]

Excellent article which explains the decision very well. Lets hope that Ritz pays attention as so far he's been asleep at the switch.

[FarmRanger]

<i>"But a civil society doesn't function very well if
individuals or governments are only bound by the
laws with which they agree. "</i>

But, of course that doesn't apply to CWB directors
who defy the order not to spend farmer's money
on single desk promotion.