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Saturday, December 31, 2011

LESSON IN THE LAW The Canadian Wheat Board and the Courts

December 31, 2011,  Online

The government's legislation to end the Wheat Board monopoly sparked a confusion of litigation.

First the Wheat Board applied to court to have the very introduction of the legislation declared a breach of a provision of the Wheat Board Act requiring a vote of farmers before changes to the monopoly. Then Board directors who opposed going to court in the face of legal advice that it would be pointless sued the other directors for wasting the Board's funds. Finally, having won the declaration despite that advice, the directors who sought it are applying to have the legislation, which has now been passed, declared invalid though it was key to their success that they expressly denied that they were challenging its validity.

Confused? You have every right to be. This is what happens when the courts are used as a substitute for democratic politics.

In granting a declaration that Agriculture Minister Gerry Ritz had broken the law in introducing the legislation Federal Court Judge Douglas Campbell laid into the Minister with gusto in
reasons released on December 7. The Board had applied for a declaration that Ritz's conduct in introducing a bill to end the Board's monopoly in wheat and other grains was an "affront to the rule of law." Campbell had "no hesitation in granting" the request. He admitted that the judgment would have no effect but practically said he wanted to teach the Minister a lesson. In what?

At issue was Section 47.1 of the Canadian Wheat Board Act, which required the Minister to consult with the Board and call a vote of producers before introducing a bill to add or remove grains subject to the Board's monopoly. The government argued plausibly that the section applied only to adding or removing specific grains and not to the government's plan to end the monopoly altogether. Campbell would have none of that and held that 47.1 was what law professors have called "manner and form" legislation.

It is unquestioned law that Parliament cannot bind its successors by providing in an act that it cannot be amended or repealed. But it has been suggested that Parliament can provide that an act can only be amended or repealed after following a specific procedure, in a particular "manner and form." A handful of odd Commonwealth cases are cited in support of this suggestion. There are a number of acts in Canada that provide for a "manner and form." The Ontario Taxpayer Protection Act, requiring a referendum on new taxes, is a notable example. But it is questionable that they would be effective if laws were passed in defiance of them.

Campbell based his decision on a snippet of Professor Peter Hogg's Constitutional Law of Canada.

Would the Parliament or a Legislature be bound by self-imposed
rules as to the "manner and form" in which statutes were to be
enacted? The answer, in my view, is yes.

Peter Hogg has been called a "constitutional guru" by Canada's national newspapers. Readers may be familiar with him as the man who instructs M.P.s on how they should question judges before they ascend to the Supreme Court of Canada. He was my estates and trusts professor. If you want to know about the rule against perpetuities or the rule in Howe v. Dartmouth, Hogg is your man. But they are law because of decided cases and statutes and not because the professor says they are.

Hogg's opinion is simply a statement that he thinks "manner and form" legislation should be effective. It is no authority for its being so. Your opinion is a authoritative as his, guru or not.

Hogg is not specific about what "manner and form" legislation should be effective. A provision that an M.P. introducing a bill to amend or repeal an act must first cut out his liver and eat it would amount to a provision against repeal and surely be ineffective. A provision that amendments to the Criminal Code must only be introduced on a Tuesday would not be worth thinking about.

The fundamental legal and democratic principal is that one Parliament, one majority, should not be allowed to fetter, in any way, the right of future Parliaments to make law as they, and the voters, see fit. How would the Opposition like it if the Harper government provided in all its bills that their repeal or amendment be subject to the advice and consent of carefully defined constituencies sure to object?

Before Campbell the Wheat Board said that it did not question the validity of Bill C-18. The Liberals upped the ante by asking the Governor General to withhold Royal Assent until an appeal was decided, despite the fact that the validity of the legislation was not in issue. Both the Board and the Liberals have used the Federal Court to make political propaganda.

Bob Rae even appeared at the news conference announcing the challenge to the validity of the legislation citing Campbell's decision, which expressly does not touch on the validity of the legislation. Rae is a lawyer and should know better.

Whatever the courts finally say about the legislation, the Wheat Board monopoly is at an end. But the legal and political waters have been muddied. Political argument has been confused by strained legal arguments. And the law has been used as a tool of political propaganda. Something Mr. Justice Campbell was too ready to lend himself to.

Jason Kenny and others have been berated for criticizing the courts, the Federal Court particularly. But if any time the government loses an argument in court ministers are to be pilloried as scofflaws the government will either shy away from making arguments that might be successful, as its argument over the Wheat Board may still be, or they will have to reply in kind.