Flanked by a dozen supporters, Dave Bryan appeared in a Winnipeg courtroom last week to appeal his conviction a year ago of exporting barley without a Canadian Wheat Board licence.
At the end of a day of constitutional argument, all but an hour coming from Bryan’s lawyer Art Stacey, the three Manitoba Court of Appeal judges reserved their decision.
It could be a couple of weeks before Bryan, a farmer from Central Butte, Sask., knows whether the appeal was successful.
“I’m neither optimistic nor pessimistic,” he said during a break in the arguments. “I’m out here doing a job.”
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If he loses, he says he will appeal to the Supreme Court of Canada to hear his case.
If he wins, he believes the board will have lost its export monopoly on wheat and barley.
At the opening of Stacey’s argument, Chief Justice Richard Scott noted the appeal court is very familiar with legal arguments about the wheat board’s authority.
“I think you’re attempting to plant a new crop in ground that’s well cultivated,” said Scott.
In fact, 30 years ago, Scott’s fellow appeal court justice Guy Kroft argued a case as a lawyer against the wheat board. Kroft’s father also traded grain at the Winnipeg Commodity Exchange.
Justice Michael Monnin is the third judge in the trio who heard Bryan’s appeal.
Stacey argued the federal government oversteps its power to regulate trade through the Canadian Wheat Board Act because it deprives farmers of their rights to their property – grain – and property rights fall under provincial jurisdiction. He noted other compulsory agricultural marketing boards have federal-provincial agreements for that reason.
Stacey focused his constitutional arguments on section 45 of the act, which provides for its export monopoly, and section 14 of the wheat board regulations, which gives farmers the chance to buy back their grain from the board.
The monopoly prohibits trade rather than regulating it, said Stacey. And the buyback policy imposes a contract on farmers rather than regulating trade, he argued.
Kroft noted all previous cases involving the wheat board acknowledge that “with all grain, property rights are grossly interfered with.”
But he added the wheat board’s monopoly is a government policy, and said it’s not up to courts to tell the government whether it is achieving its goals in the best or worst way.
The judges questioned Stacey on whether they could isolate the specific section and regulation from the intent of the rest of the act.
“I don’t think that surgical job you’re trying to do is quite that easy,” said Kroft.
Scott told Stacey he must look at the statute as a whole to determine the “pith and substance” of the legislation before carving off a part.
Stacey said the rest of the act describes how grain moves through the handling and transportation system. Without an export monopoly, the wheat board could still monitor production and quality, he argued.
Stacey acknowledged that orderly marketing is the stated purpose of the act, but argued the term is an “undefined” concept.
“It’s a nice catchphrase, but it has no meaning,” he said.
