Experts see CWB legislation entering legal limbo

A parliamentary expert says federal plans to change the Canadian Wheat Board are likely on hold until the courts have had their final say on last week’s ruling in favour of opponents.

"The federal government can get the legislation through Parliament, but they won’t be able to implement it as long as it’s before the courts or the courts have agreed with the opponents," said Ned Franks, who specializes in parliamentary procedure at Queens University.

Federal Court Justice Douglas Campbell ruled Dec. 7 that Agriculture Minister Gerry Ritz broke the Canadian Wheat Board Act by introducing into Parliament Bill C-18, the Marketing Freedom for Grain Farmers Act, which proposes firing the board’s farmer-elected directors and creating an open market as of Aug. 1, 2012.

The case is likely headed for the Supreme Court of Canada, said Peter Russell, professor emeritus in political science at the University of Toronto.

He is among those questioning whether C-18 will receive royal assent until appeals have been exhausted. Asking Governor General David Johnston to grant the bill royal assent would put the Queen’s representative in an awkward position, Russell said in an interview.

"The Federal Court ruling doesn’t make the law itself unconstitutional but makes the introduction of it into Parliament illegal," he said.

"I’m sure David Johnston is thinking about this. He has a legal background and a good legal mind. I hope he has some good people to talk to. He certainly has to make a judgment call."

While Johnston doesn’t have to sign a bill into law, effectively vetoing it, that has never happened in modern times.

Russell agreed Johnston would prefer the government not ask him to give C-18 royal assent until the appeals have been exhausted.

Federal Liberal leader Bob Rae announced Monday he has already written to Johnston, asking that he consider withholding royal assent for C-18, noting both Campbell’s ruling and the government’s decision last week to file an appeal.

"As the intent of Bill C-18 is inextricably linked to the question of whether the government fulfilled its obligations to consult with affected farmers, it would be entirely within (Johnston’s) prerogative to withhold royal assent until the outstanding questions of law and any ongoing court processes were sorted," Rae said in a release.

"Poison tree"

The ruling doesn’t specifically prevent C-18 from passing, which is expected to clear the Senate this week. However, opponents of the legislation say they will ask the courts to declare the law invalid because it was introduced illegally.

"It’s the fruit of a poison tree," said Anders Bruun, the lawyer representing the Friends of the Canadian Wheat Board, one of the groups that took Ritz to court.

All Federal Court rulings are automatically eligible for appeal to the Federal Court of Appeal. The next avenue of appeal is the Supreme Court of Canada, which would have to grant leave to appeal before a case will be heard. 

CWB chair Allen Oberg said the board is considering all legal options to force the government to let farmers decide the board’s mandate as outlined under 47.1.

Ritz remained defiant in the face of the ruling and prospect of more legal action. 

"Well, we fundamentally disagree with the declaration of the court in this particular situation," he told reporters Wednesday.

"I can tell you at the end of the day, this (court) declaration will have no effect on continuing to move forward for freedom for western Canadian farmers."

— Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man. Watch for the full version of this article in this week’s Co-operator.

Related stories:

Senate to slap closure on CWB bill Monday, Dec. 9, 2011

Federal judge rips Ritz’s plans for CWB reform, Dec. 7, 2011

Tories’ bill maps out endgame for CWB’s single desk, Oct. 18, 2011

About the author

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Reporter

Allan Dawson is a reporter with the Manitoba Co-operator based near Miami, Man. Covering agriculture since 1980, Dawson has spent most of his career with the Co-operator except for several years with Farmers’ Independent Weekly and before that a Morden-Winkler area radio station.

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