The legal battle over the Canadian Wheat Board has taken another twist: its eight fired directors are now looking to quash Ottawa’s appeal of a declaration that Agriculture Minister Gerry Ritz erred in deregulating the CWB’s marketing desk.
Ritz introduced Bill C-18, the Marketing Freedom for Grain Farmers Act, on Oct. 18. C-18 received royal assent and was proclaimed Dec. 15.
Federal Court Judge Douglas Campbell ruled Dec. 7 that Ritz broke section 47.1 of the CWB Act by introducing the controversial legislation before first consulting with the CWB’s board of directors and getting farmers’ approval to end single-desk selling through a plebiscite.
Ritz’s failure to do so "is an affront to the rule of law," Campbell wrote.
The federal government then announced it will appeal the declaration, which some political scientists had predicted — incorrectly, it turned out — would prevent C-18 from becoming law.
The former directors argue Ottawa can’t ignore Campbell’s ruling and appeal it at the same time.
"They (Ottawa) are acknowledging the legitimacy of the court declaration by appealing it," ex-CWB director Bill Toews of Kane, Man. said in an interview Jan. 5. "But they are also ignoring it at the same time by saying it’s not required."
To appeal the ruling the federal government must first stop implementing the new law, ex-CWB chairman Allen Oberg said in an interview. That includes not killing the board’s monopoly over the sale of Prairie wheat and barley destined for export or domestic human consumption.
C-18 calls for the monopoly to end Aug. 1, the first day of the new crop year.
Since Campbell declared C-18 was introduced illegally it follows the law is invalid, Oberg said. That’s what the former directors will argue this spring in Manitoba Court of Queen’s Bench, he added.
On Tuesday and Wednesday (Jan. 17-18), the former directors are scheduled to ask a Queen’s Bench judge for an interim and interlocutory injunction to prevent implementation of C-18. Even if their request is denied the former directors will ask the court to rule on the law’s validity.
Some say the former directors are beating a dead horse, but according to Toews there’s an important democratic principle at stake: due process.
"We feel that farmers, as the rest of the citizens in Canada, have a right to due process and expect the government to act within the law," he said.
The former directors are asking other farmers to donate money to help pay for the legal action.
"How successful we are on that will perhaps determine how far this does go," Oberg said. "We’re up against a government that has unlimited resources."
"Manner and form"
Twice before, in 1993 and 2007, courts have prevented the federal government’s efforts to end the wheat board’s single desk for barley. In both cases the Federal Court ruled the change had to be approved by Parliament and not just by order-in-council (cabinet).
This time Parliament approved the change. Not surprisingly, experts differ on whether Ritz acted illegally.
Campbell on Dec. 7 ruled that section 47.1 of the CWB Act contained conditions known in law as "manner and form" procedural requirements, which legally bind the development of any future legislation.
Where Ritz’s lawyers contended at the time that 47.1 is not a "manner and form" provision, Campbell wrote, "I dismiss this argument and find any debate on ‘manner and form’ is not properly before the court for determination."
University of Toronto professor emeritus of political science Peter Russell has argued allowing the new law to stand compromises the integrity of Parliament. A former Parliament said farmers would be consulted before changes are made to the wheat board’s mandate, he said in an interview last month.
"Parliament can bind itself as to the ‘manner and form’ of future legislation, a view supported by many constitutional scholars in Canada and other Westminster parliamentary democracies," he wrote recently in the Globe and Mail, adding that governments still have the authority to repeal legislation passed by previous Parliaments.
However, that didn’t occur in this case. C-18 was introduced while the CWB Act and 47.1 were still the law.
Gerald Chipeur, a Calgary lawyer and a former chair of the Canadian Bar Association’s Constitutional and International Law Section, has said Ritz didn’t break the law by introducing C-18.
Only the Speaker of the House of Commons or Senate has jurisdiction to make such a ruling and neither did, Chipeur wrote, also in the Globe and Mail.
"Manner and form," Chipeur said, is restricted to the actions of ministers and Parliament. Effectively giving farmers a veto over Parliament is inconsistent with parliamentary and constitutional law, he wrote.
— Allan Dawson is a reporter with the Manitoba Co-operator at Miami, Man. The full version of this article appears in the Jan. 12, 2012 issue.