From the beginning, supporters of ending the CWB marketing monopoly saw the December Federal Court judgment against the government as a political manifesto rather than legal argument.
On June 18, the Federal Court of Appeal was curt in its dismissal of the lower court legal arguments, eviscerating every one of them as incorrect.
It veered close to finding some political arguments in the original judgment as well, although wrapped in the required legalese.
Similar veiled accusations were made in May when the government argued its appeal of Federal Court judge Douglas Campbell’s ruling against agriculture minister Gerry Ritz.
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For example, when federal justice department lawyer Robert MacKinnon made his pitch during the one-day appeal court hearing in Ottawa, he noted that Campbell had issued a 21-page judgment condemning Ritz the day after he heard arguments.
Hmmm, wonder if he was suggesting subtly that the good judge had made up his mind before the hearing? Of course, he did not say.
Then there was Campbell’s assertion that he accepted the argument from the Council of Canadians that the CWB had to be “democratic” to meet its obligations under the North American Free Trade Agreement, which the council opposes.
The council’s argument, accepted by Campbell, was that the CWB withstood trade challenges because of its “democratic structure” that separated the board from government control.
Why that would be relevant as a legal argument was never explained. And the CWB withstood trade challenges long before the 1998 amendments that gave farmers the right to elect 10 of 15 directors.
However, the appeal court judgment dismissed even Campbell’s political conclusion about the trade effects of ending the monopoly.
The lower court judge’s argument was that the board survived trade challenges because there was no government control.
“The principal purpose of the Marketing Freedom for Grain Farmers Act is to allow an open and free market for grain producers by putting an end to the CWB marketing monopoly,” wrote appeal court justice Robert Mainville for the unanimous court opinion.
“It is hard to understand how this purpose would run afoul of NAFTA (North American Free Trade Agreement) or of any other of Canada’s international trade agreements.”
Campbell also assigned considerable weight to the fact that 62 percent of farmers in a CWB-organized vote, not recognized be the government, opted to support the single desk for wheat.
He said that was a democratic farmer expression that the government should respect.
The appeal court noted that opponents challenged the fairness and legitimacy of the producer vote.
And since the appeal court decided the government could not be captive of a small group of citizens with a special interest, the vote result didn’t matter anyway.
With CWB supporters stuck with the court costs and in the face of a unanimous court judgment, this may be the legal end of the CWB battle, although an attempt to appeal to the Supreme Court is possible.
At the very least, for the moment Ritz has been freed from the idea promoted by his opponents that he violated “the rule of law.”
