WINNIPEG – Neither side in the constitutional challenge of the Canadian Wheat Board has impressed the judge so far.
As final arguments began in a Winnipeg courtroom this week, Federal Court of Canada Justice Francis Muldoon told lawyers representing the plaintiffs that he wants them to indicate exactly which constitutional rights the farmers are trying to assert, and how those rights have been breached.
Muldoon said that after carefully listening to 17 days of testimony in Calgary earlier this fall, it was clear to him that none of the farmers who testified like being subject to the Canadian Wheat Board’s monopoly on wheat and export barley sales.
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“But not liking it isn’t enough,” he said Dec. 9, the first day of what is expected to be five days of closing arguments.
But Muldoon also had some words of warning for federal justice department lawyers, saying they hadn’t done much so far to advance the cause of the board or the federal government.
The lawsuit, which was launched in Oct. 1993 by the Alberta Barley Commission, the Western Canadian Wheat Growers Association and 21 individual farmers, claims that the CWB Act violates several sections of the Charter of Rights and Freedoms by discriminating against farmers in the board’s designated area.
The plaintiffs say the act violates charter rights covering freedom of association, freedom to earn a living without unreasonable restriction and freedom from discrimination based on place of residence.
During the Calgary portion of the trial, which began Oct. 15, little attention was paid to those technical legal issues. Instead a parade of farmers, academics and grain marketing experts took the stand to talk about everything from modern farming and marketing methods to the history of the wheat board and the board’s sales practices.
As the final arguments got under way, the plaintiffs’ lawyer Keith Groves told Justice Muldoon that during the first part of the trial, the plaintiffs and defence had yet to clash because they have taken different approaches to the case.
Paths don’t cross
“We are almost like two ships passing in the night,” Graves said.
“This is your occasion for a collision,” replied Muldoon, referring to the week of final arguments ahead.
Groves said it was hard for producers who gave evidence during the trial to show what it would mean to be free from the wheat board, because they could only speculate.
He argued that farmers are compelled to associate with the wheat board when they decide to grow wheat or barley. Those who don’t want to sell grain through the board have had to resort to other economic activity, including such things as investing in inland terminals, dealing with producer cars or getting out of cereal grain production altogether.
Groves told the court the case is about opportunity and choice, not prices. With wheat and barley, farmers don’t have many choices, compared to other crops, he said, especially for durum, malt barley and wheat for human consumption.
