WINNIPEG — A federal court judge will decide today if agriculture minister Gerry Ritz broke the law by refusing to hold a producer vote before introducing Bill C-18, which ends the Canadian Wheat Board monopoly.
Nearly 60 people, including 10 members of the media, packed into a small courtroom inside a downtown Winnipeg office building yesterday morning to hear arguments from lawyers representing CWB directors and a farmer advocacy group, Friends of the Canadian Wheat Board. Both litigants asked Federal Court of Canada judge Douglas Campbell to decide if Ritz broke the law by refusing to let farmers vote on the elimination of the board’s monopoly on food quality wheat and barley in Western Canada.
Campbell listened to two hours of arguments from lawyers representing the applicants, an hour of presentations by lawyers for two interveners, the Council of Canadians and the Producer Car Association and a two and a half hour response from federal government attorneys before announcing he would issue a written decision Wednesday.
John McDougall, who represented CWB directors at the hearing, opened the day by saying he wasn’t there to question the validity of Bill C-18, which passed third reading in the House of Commons in early December. Nor did McDougall question the government’s right to repeal or amend existing legislation.
He said the case is about interpretation of Section 47.1 of the CWB Act, which became law in 1998. The section, part of amendments to the act, states government must hold a producer plebiscite or consult with board directors before including or excluding grain from the board’s monopoly.
However, he said the larger context of the amendments, based on the intent of the Liberal government in the late 1990s, was to give producers more control over the board. Therefore, that context should be used to interpret the objective of the law and not simply the wording in Section 47.1.
“Leave it (managing the CWB) to the farmers,” McDougall said, summarizing the legislative intention at the time.
He said Ritz’ position, that government doesn’t have to hold a plebiscite because Bill C-18 isn’t about excluding or including grain, is an absurd interpretation of the section.
Matthew Fleming, McDougall’s colleague, then argued producers should legitimately expect to vote on the fate of the single desk system because Ritz, Conservative MPs and government officials had previously said publicly that the government would hold a farmer vote before removing the board’s monopoly.
Fleming said the Conservative government had previously held a plebiscite on barley marketing, making it reasonable for producers to expect to vote on a more significant issue such as the elimination of the single desk.
Anders Bruun, arguing on behalf of the Friends of the Board, then asked why Ritz is allowed to sidestep the requirements of Section 47.1 while other Canadians have to follow the law.
Bruun conceded that Parliament can’t pass legislation that prevents future lawmakers from amending or repealing that legislation, but lawmakers can pass legislation that establishes a procedural process for changing laws, such as mandating a farmer plebiscite.
Government response
Following a break for lunch, Joel Katz, legal counsel for the Attorney General of Canada, opened his presentation in the low ceilinged, airless and still crowded courtroom. He said the case was a simple matter of the applicants attempting to interfere with parliamentary process and trying to challenge the validity of Bill C-18.
“Their whole purpose is to influence, directly or indirectly, the passage of this bill.”
In his succinct arguments, Katz said Parliament must have the sovereign authority to repeal or amend existing acts. As well, he said the lawmakers who amended the Canadian Wheat Board Act in 1998 had no intention of binding Parliament in perpetuity to that legislation.
“Parliament never intended to restrict the ability of Parliament to change (the CWB),” he said.
Katz also questioned whether the Federal Court of Canada had a legitimate right to hear the case. The court is mandated to review the activities and decisions of government boards, agencies and commissions but not the legislative activities of members of Parliament, he said.
“The Minister (Ritz), in introducing a bill, was acting as an MP,” he said. “Legislative decisions are only subject to review by the electorate.”
It was then Robert MacKinnon’s turn to make the case that Parliament must follow the strict wording of Section 47.1. As a result, it would be “damaging” to the precise wording of the section if the court ruled that the language was ambiguous.
MacKinnon, who is also an attorney general lawyer, said Bill C-18 says nothing about excluding or including grain from the board’s monopoly. As a result, it’s not reasonable to assume that the legislative intent of the act was to give producers authority over the board’s mandate.
If producers had such power, it would have to be spelled out explicitly within the act, he added.
“There’s no authority here for the CWB or producers to restrain Parliament.”
