Pundits, producers and political watchers continue to debate the ruling of Federal Court of Canada judge Campbell Campbell, who concluded that federal agriculture minister Gerry Ritz disregarded the rule of law when he failed to hold a farmer vote before introducing a bill that would dismantle the single desk marketing system of the Canadian Wheat Board.
On Dec. 7 Campbell ruled in favour of the board directors and a farmer advocacy group, Friends of the CWB. The two parties took the federal government to court because Ritz didn’t consult with the board or hold a farmer plebiscite before introducing Bill C-18, which terminates the board’s monopoly on food quality wheat and barley sales.
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Campbell’s decision came a day after a judicial hearing in Winnipeg, in which nearly 60 people, including 10 members of the media, packed into a courtroom inside a downtown office building to hear arguments from lawyers on both sides.
The crowd, including a dozen gathered in an overflow room, heard 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 2 1/2 hour response from federal government lawyers.
John McDougall, lawyer for CWB directors at the hearing, said 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.
This case, he said, is about the interpretation of Section 47.1 of the Canadian Wheat Board Act, which became law in 1998.
Section 47.1, a component of amendments to the Act, states the minister of agriculture must hold a producer plebiscite or consult with board directors before including or excluding grains from the board’s monopoly.
Nonetheless, McDougall said, it’s clear the intent of the Liberal government of the time, which crafted the amendments, was to give producers more control over the board.
Therefore, that context, and not just the wording in Section 47.1 should be used to interpret the objective of the law.
“Leave it (managing the CWB) to the farmers,” McDougall said, summarizing the legislative intention at the time.
In response to McDougall, Attorney General of Canada attorney Robert MacKinnon said that Section 47.1 must be interpreted exactly as it reads.
That is, the agriculture minister is required to hold a producer plebiscite only if he is removing or adding a grain from the board’s monopoly.
Therefore, it’s not reasonable to infer that the legislative intent of the act was to give producers authority over the board’s future. If that was the federal government’s intent, it should have been spelled out explicitly, within the act, he said.
“There’s no authority here for the CWB or producers to restrain Parliament.”
In his ruling, Campbell agreed with McDougall’s argument that Section 47.1 must be taken in context. Based on his analysis of legislators’ comments from the late 1990s, Campbell concurred that lawmakers intended to transfer board control to farmers. Further, Campbell rejected the government’s argument that Section 47.1 must be interpreted precisely as it reads.
“(It’s) unreasonable to interpret the act to conclude that while the minister must consult and gain consent when extracting or extending a grain, she or he is not required to consult or gain consent when dismantling the CWB,” Campbell wrote.
“Manner and form” legislation
When attorney Anders Bruun, representing the Friends of CWB, made his case, he acknowledged that Parliament cannot bind future lawmakers.
In other words, politicians can’t pass legislation that prevents future lawmakers from amending or repealing that legislation.
However, lawmakers can pass “manner and form” legislation which establishes a procedure for changing laws.
The example from this case of manner and form is holding a producer plebiscite before passing legislation to end the board’s monopoly.
Joel Katz, Attorney General of Canada counsel, countered that Parliament must have the sovereign authority to repeal or amend existing acts.
Furthermore, the lawmakers who amended the Canadian Wheat Board Act in 1998 had no intention of binding Parliament, in perpetuity, to Section 47.1.
“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 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.”
In spite of those arguments, Campbell ruled that legislators aren’t above the courts or the law. As well, statutory interpretation must incorporate both democratic and constitutional values.
“In this case this is especially important,” Campbell wrote. “In proposing that fundamental change be made to the (CWB) structure, the minister must act democratically. This is what 47.1 says. Not adhering to these values is notonly disrespectful, it is contrary to law.”
