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Steven Shrybman is a lawyer with Sack, Goldblatt, Mitchell LLP. His practice focuses on international trade and public interest litigation, including issues concerning the environment, health care, human and labour rights, the protection of public services, natural resources policy, and intellectual property rights. Steven frequently speaks, and has written extensively, on the impact of international trade law on diverse areas of Canadian policy and law. He has also been involved in drafting and promoting conventions on cultural diversity and access to water as a human right.

Canadian Wheat Board applications a success! Judge rules against the Conservative government

| December 7, 2011
Photo: http://www.flickr.com/photos/xiaozhuli

On Dec. 7, 2011, Justice Campbell of the Federal Court issued a declaration that the Minister of Agriculture, Gerry Ritz, acted in breach of his statutory obligation to hold a plebiscite of farmers before abolishing the Canadian Wheat Board's "single desk" mandate for marketing wheat and barley.

Justice Campbell expressed no hesitation in granting a request by the Friends of the Canadian Wheat Board and the Canadian Wheat Board that "the Minister's conduct is an affront to the rule of law."

The Public Service Alliance of Canada, the Council of Canadians, Food Secure Canada, and the ETC Group (the "Interveners") were given public interest standing in the applications for the purpose of addressing important international trade and constitutional questions raised by the Minister's actions. The Court's decision repeats and adopts the Interveners' submissions on these two key points.

Section 47.1 of the Canadian Wheat Board Act forbids the Minister from introducing legislation that would exclude wheat or barley from the Board's exclusive marketing mandate without first consulting the directors of the Board, and allowing the producers of the grain to vote on any proposed exclusion. Nevertheless, without doing either, the Minister tabled Bill C-18 to abolish the Board's single-desk mandate. The bill also removes another fundamental democratic right farmers enjoyed on the Act, which was to elect directors to represent them on the Board.

In coming to his conclusion, Justice Campbell placed primary emphasis on the rule of law as the guiding constitutional principle in the case, and quoted extensively from the written argument made by the Interveners, including the following passage:

"Adhering to the rule of law ensures that the public can understand the rules they are bound by, and the rights they have in participating in the law-making process. As the Applicants note, western farmers relied on the fact that the government would have to conduct a plebiscite under s. 47.1 before introducing legislation to change the marketing mandate of the CWB. Disregarding the requirements of s. 47.1 deprives farmers of the most important vehicle they have for expressing their views on the fundamental question of the single desk. Furthermore the opportunity to vote in a federal election is no answer to the loss of this particular democratic franchise. Until the sudden introduction of BiIl C-I8, Canadian farmers would have expected the requirements of s. 47.1 to be respected."

Justice Campbell went on to state:

"The [Interveners argue] that, when in doubt, statutory interpretation must have regard to democratic and constitutional values. In the present case this is especially important because s. 47.1 speaks to the unique situation in which these democratic values are already implemented in the structure of the CWB. This fact requires that, in proposing that a fundamental change be made to the structure, the Minister must act democratically. This is what s. 47.1 says. Not adhering to these values is not only disrespectful, it is contrary to law."

The Court also gave credit to another key point made by the Interveners concerning the importance of maintaining the democratic franchise accorded farmers under the Canadian Wheat Board Act that the Harper government is now trying to repudiate. As the trade cases reveal, Canada's compliance with international rules for exporting and importing grain depends upon the Board being controlled by farmers, not the government. It is that control that Bill C-18 would abolish. On this crucial point Justice Campbell stated:

"I give weight to the Council's argument that s. 47.1 applies to changing the structure of the CWB because the democratic structure is important to Canada's international trade obligations under NAFTA. I find that this is an important consideration which supports the argument that Parliament's intention in s. 47.1 is not to alter this structure without consultation and consent."

In granting declaratory relief, the Court was clearly not impressed with this government's disregard for the most fundamental constitutional principles of our nation. The impact of Bill C-18, if it proceeds, may well be a disaster for Canadian food security and sovereignty since U.S. based transnationals are certain to take even greater control of Canada’s food system.

The Court was not asked, and arguably would not have the authority, to enjoin the government from proceeding any further with Bill C-18. However, in light of the Court's ruling and the serious rebuke it offers, the government ought to withdraw the bill and conduct the consultation and plebiscite required by the Canadian Wheat Board Act. Farmers, not politicians, should decide whether the Canadian Wheat Board has a future.

The Intervenors were represented by Steven Shrybman, who was assisted on the file by Nadine Blum and SGM articling student, Kristen Allen.

You can read the Court's decision here.

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