It was clear early in last week’s Federal Court hearing that judge Roger Hughes wasn’t buying the federal government’s claim that the gag order imposed on the Canadian Wheat Board in October 2006 wasn’t really a gag order.
Government lawyers argued during the June 16 hearing that the cabinet directive was a spending restriction to ensure the board stuck to the job of selling grain.
“We say the directive ensures the CWB focus on marketing grain and not get into a political fight with the government,” said Stephen Vincent.
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He said the directive prohibited the board from spending money, directly or indirectly, to promote single desk marketing, and has nothing to do with stifling freedom of speech.
However, Hughes, who rejected the government’s arguments in his June 19 decision, was having none of that and got into several exchanges with Vincent.
He pressed the government lawyer for evidence that the board had squandered money unreasonably in the past advocating for the single desk or that it was about to embark on a spending spree at the time of the order.
The judge said the government can’t issue a directive “out of nowhere” without proof the board was planning to spend money.
Vincent acknowledged there was no direct evidence but said the board’s track record made it almost certain it would spend a significant amount promoting the single desk.
That wasn’t good enough for Hughes.
“I see no evidence of a rational apprehension by the government that the CWB was about to spend money on advocacy,” he said.
The government can spend unlimited funds promoting its positions, he added, while the CWB can’t spend anything. He likened the situation to that under Robert Mugabe, the dictatorial president of Zimbabwe notorious for suppressing dissent and opposition.
Hughes said that given the lack of evidence about wheat board spending intentions, the gag order appeared to be simply the government telling the CWB, “we don’t want you to talk against what we want to do.”
Wheat board lawyer John McDougall said there is no evidence the government had complained about the way the CWB was spending money before the gag order was issued.
He added that since the single desk system is mandated in the CWB Act, it would be difficult for the board to talk about its business without talking about the single desk.
“There is no record of untoward behaviour by the wheat board in terms of advocacy,” he said.
McDougall argued that initiatives such as the board’s Harvesting Opportunity planning document and its response to the 2006 report of the federal task force on grain marketing were legitimate comment on government policy.
“The government directive has nothing to do with saving money … and everything to do with muzzling the CWB,” he said.
Vincent said the CWB Act doesn’t give the board the authority to spend money on advocacy, and there is no evidence the government directive has prevented the board from carrying out its statutory obligation to market grain.
