Sunday, December 11, 2011

The courts aren't always right

By now we all know the results of the CWB court challenges and that Judge Douglas Campbell ruled in favour of the Friends of the CWB and the CWB.  Some of the comments in the ruling demand attention:

"...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.  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."

To use the judge's own terminology, this is an absurdity.   He clearly has not been paying attention to the "CWB file" for the last 30 years or more.  That’s not a criticism, just a fact.  Those who have been paying attention know that there has been ample opportunity for dissenting voices to be heard on both sides of this issue.  And that they have exploited that opportunity at every turn.

Before you can "find a solution which meets the concerns of the majority", you have to determine who the majority is and what their concerns are.  The CWB's plebiscite results have been presented as a clear indication of the majority's wishes.  It is no such thing.  Neither the question asked nor the voters’ list fulfills the requirement of determining the interests of all stakeholders.  If Judge Campbell had been following the CWB issue, he would know like the rest of us that the idea of a plebiscite is nothing more than a red herring; you could never design a reasonable plebiscite that the CWB and its most fervent supporters would accept, let alone its results. 
When a list of CWB permit book holders is presented with the choice of a voluntary CWB (the dreaded dual market), only a clear minority supports the single desk.  Arguing that a voluntary CWB will fail or that farmers don’t understand the question doesn't cut it.  But, really, none of that matters anymore, because we’re no longer talking about farmers or grain marketing.

Do Precedents Matter?

All the discussion is around parliamentary process.  Even when we talk about plebiscites, it’s not about farmers anymore – it’s about political processes.  So, in that vein, we should take a look at another case, very similar to this CWB cases.  Here are some relevant facts of a case heard by the Ontario Supreme Court, between The Canadian Taxpayers Federation (CTF) and the government of Ontario:

In 1999, the Taxpayer Protection Act (TPA) was passed by the Ontario legislature, in which Section 2(1) reads:
o   A member of the Executive Council shall not include in a bill a provision that increases, or permits the increase of, a tax rate under a designated tax statute or that establishes a new tax unless,
a)       A referendum concerning the increase or the new tax is held under this Act before the bill is introduced in the Assembly; and
b)      The referendum authorizes the increase or the new tax.

(Sound familiar?)

In June 2004, the Ontario Minister of Finance introduced Bill 106 to amend the Income Tax Act.  Even though Sec. 2(1) of the TPA of 1999 required it, no referendum was called.  The CTF took it to court, seeking the courts to declare the Health Tax to be invalid because the government didn’t call for a referendum.  Paragraphs 47-49 of the ruling are relevant to the CWB case (paraphrased, emphasis is mine):

[47]       Nothing in the Act suggests that a referendum is required before the Act can be amended even if this amendment creates an exception to Section 2(1).
[48]       ... even if the TPA had contained a provision that no exception to the referendum requirement contained in Section 2(1) could be enacted without the holding of a referendum, this type of limit on a legislature’s sovereignty would not be binding.

[49]       The courts will give effect to limits imposed on the legislature’s ability to amend its own statutes only where they constitute “manner and form” requirements.  The Supreme Court of Canada in the reference Re Canada Assistance Plan set out what was necessary in order to impose an effective manner and form requirement.  Applied to the present case the following would be required:

a)       A clear statement of intent by the legislature that ... the legislature intended to bind itself or restrict the legislative powers of its members;
b)      It would be contained in a statute that is constitutional or quasi-constitutional; and
c)       The statute would specify the manner and form to be followed by the legislature itself to effect the amendments.  It would not remit the decision to an entity not forming part of the legislative structure.  

On “manner and form” requirements, it says the government would not give authority to change the Act to “an entity not forming part of the legislative structure” – in other words, not to farmers voting in a plebiscite.

But there’s more.  Section 13 of the Federal Interpretation Act sums it up quite nicely:

Every Act shall be construed as reserving to the Legislature the power of repealing or amending it, and of, revoking, restricting, or modifying any power, privilege or advantage thereby vested in or granted to any person or party, whenever the repeal, amendment, revocation, restriction or modification is considered by the Legislature to be required for the public good.

In other words, parliament has the ultimate power and authority to amend Acts.  And can revoke the power given to anyone else (like farmers through a plebiscite) when amending.

The last thing the grain markets need right now is more uncertainty.  Judge Campbell’s ruling, when viewed side by side with the CTF vs Ontario government ruling, and Section 13 of the Federal Interpretations Act, is ambiguous at best, or even worse, just plain wrong.  And the self-righteous chiding by the CWB supporting groups does nothing to make it more correct or decisive.  

Although the government is moving ahead as planned, all this legal wrangling is taking the focus away from what is right for the Western Canadian economy.  Instead of debating about court proceedings and parliamentary procedures, we should be spending our time on new opportunities in the grain markets. 

As suggested by Minister Ritz, we should assume the Marketing Freedom for Grain Farmers Act will be enacted as planned.  Let’s face it, if the appeal courts disagree with the government on this issue, we’ll have a much larger problem – an impotent Parliament.

Only in Canada, you say?  Pity.


  1. Great analysis John. Us farmers are grateful for your efforts.

  2. Good analysis of this ruling. After a farmer plebicite in 2007 the Conservatives attempted to open up barley marketing by using an order-in-council or cabinet decree. The CWB took that to court and of course you remember the outcome. The courts said that grains could be added to the monopoly by cabinet order but only legislation could REMOVE grains from the CWB orbit. That is what makes this ruling kind of humorous if it didn't have such serious implications.

  3. If you read what senator cools has to say then we have nothing to worry about.
    Justice Campbell knew he could not intervene, ie:stop bill C18 he simply(no court, not even the Supreme court of Canada) does not have the power and that leaves the part where he goes after Ritz.
    A very strange ruling indeed,a dead end decision and Campbell knew it before he even rendered it.All he did was save his bacon in Winnipeg

  4. If the elected Government of Canada can not govern without plebiscite, what would happen in the case of National Defense? Getting a vote to see if we should defend ourselves? I know this example is quite a stretch, but if we become a Country ruled by plebiscite why bother with expense of electing and maintaining Parliament?