Popularity, responsibility, and the Canadian Wheat Board
Chuck Strahl's attempt to dismantle the Canadian Wheat Board monopoly on barley sales through a regulatory change was rebuffed by a judge who said that such a change required a change in law, and that means going to parliament.
When I wrote a series of pieces on the Ontario Securities Commission, one of the themes I kept coming back to was the power the OSC had to alter the regulations under which trading was regulated, only requiring the signature of the minister to make it official.
Actually, it was worse than that -- the regulatory change essentially took effect immediately, and could only be stopped if the minister took a positive action to overrule the OSC. If the minister signed it off, then fine. But if he did not sign off the regulation at all within a set time frame, it was considered to be as if he signed it, which is very disturbing.
In those posts, I argued that the power to make these changes was best left in parliament, where interested parties could argue in front of legislative committees on whether or not the law was a good one, and the committee could recommend amendments based on that input.
Today, we have a ruling from Judge Dolores Hansen concerning the Canadian Wheat Board:
A court has issued a strong rebuke to the federal government, which is aiming to dismantle the Canadian Wheat Board's monopoly on grain sales, on the eve of what was supposed to be the Conservative's first step in opening the market on barley.
Federal Court Judge Dolores Hansen, who Tuesday night rushed out her decision on the future of barley sales, ruled that Ottawa overstepped its power when it pledged to remove the crop sales from the single-desk marketing system as of Wednesday.
In her 20-page ruling, Judge Hansen concluded that Agriculture Minister Chuck Strahl was wrong to simply introduce a regulation that would allow Western Canadian farmers to market barley to any customer they choose.
Instead, she found, the federal act that governs the wheat board requires a vote in Parliament.
I haven't read the ruling, but based on this report, Judge Hansen is not deciding on whether the CWB is a good thing for farmers, or making a judgment call on the free market versus monopolies, or challenging whether such a move would be popular.
She is making a ruling on the powers of a minister to act outside of the confines of parliamentary oversight. In this case, she has ruled, he does not have that much latitude, even if the minister is basing his action on the vote of farmers to dismantle to monopoly.
In my gut, I have to think that free markets are better. Farmers seem to agree. But in another part of my gut, I also think government action must be constrained. Actions must be considered and debate engaged.
The Liberals taught us what could happen with the Sponsorship Program, run without the oversight of all parties in parliament.
You know, there is a reason that I list all Canadian blog rolls, including the Liberals and the NDP rolls. I do believe that all points of view have merit, or at least ought to be heard so that their merit can be judged.
This judge has ruled that a minister cannot eliminate the CWB monopoly without representatives from across the country and across the political spectrum debating the benefits of such an action, and the possible consequences.
If in this minority government that means that there is little hope that the CWB will be dismantled, well, minority governments are challenged to enact big changes. If enough farmers want the CWB eliminated, they will vote for the party most committed to doing exactly that.
Of course, people in other parts of the country are not concerned about wheat boards, and will vote on other issues lead them to vote for a party whose platform runs counter to the wishes of farmers.
To me that begs the bigger question of why the federal government has authority over such a localized issue. The same argument could be made about federal jurisdiction over fisheries. Perhaps these are issues that are best handled at the provincial level. Indeed, an important part of this story is the fact that farmers voted to take apart the monopoly. If the power was pushed down to a lower level of government, we might not be having this discussion. It also seems like the popularity of the CWB differed dramatically across each province involved in the plebiscite, further suggesting that this is best handled locally.
Maybe each region needs to make its own informed decision.
My opinion on wheat issues is, at best, uninformed, not being involved in wheat farming and not living in a farming area. My MP's vote, therefore, might also be considered irrelevant to the farmers.
But for better or for worse, this is a federal matter. A federal minister, Chuch Strahl, is responsible.
And this judge is saying that part of that responsibility is submitting his plans for the CWB to parliament for a vote. And that's at the heart of responsible government -- government ministers being accountable to an elected parliament.
I gather a lot of conservative bloggers are decrying this decision. Some might have suspicions about Judge Hansen's motives. Maybe she is a Liberal at heart. I don't really know. But to say that an action by the government ought to be considered and possibly tempered by engaging the oversight of parliament doesn't offend me.
And I for one don't mind hearing from Liberals and NDP members on whether dismantling the CWB monopoly is a good idea. I probably won't agree with them, but then I'm not so sure of myself to assume that I'm always right. That's the great things about representative bodies. To work properly, they require a certain level of humility from the members that make up that body:
Democracy requires humility. When the debate is ended, the political contestants submit to the wisdom of the people. Democracy demands the peaceful acceptance of your opponent's victory.
That was George W Bush speaking to the National Endowment for Democracy.
Did this judge defeat the government's plans? Did this judge override the democratic will of the people? I would politely suggest that anyone who thinks a declaration from one minister issuing a regulation from his office represents democracy in action requires a dose of that humility.
Yes, Chuck Strahl seemed to be reflecting the wishes of the farmers who voted. At the same time, though, he is responsible to parliament for his decisions. He can argue in parliament that the farmers want this to happen, and that is a powerful argument to make. A committee studying this change in law will consider that vote and factor in the apparent popularity for ending the monopoly. But in the end, doing what is popular is not the same thing as acting responsibly.
Chuck Strahl will have to find a way to be responsible and popular at the same time.
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Posted by: jaxloattE at August 1, 2007 06:06 PM
The judge just wants the government to do what the law says. That's all.
Posted by: Greg at August 1, 2007 06:08 PM
... unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.
How has this perversion of the law been accomplished? And what have been the results? The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy.
Posted by: at August 1, 2007 06:46 PM
Well said. Whether one is a Liberal, Tory, or Dipper, and whether one agrees with the CWB or not, the important thing here is decisions should be made by elected representatives not the cabinet. Had the judge said parliament cannot do it even if it voted in favour of it, that would be different, but I believe it only said it needed parliamentary approval.
As for going to the local level, this has some merit in the sense most farmers in Saskatchewan and Manitoba support the Wheat Board while in Alberta they don't so no matter which said one falls in, the majority in at least one province is unhappy. I am generally against decentralization, but I do think any federal law should apply in all parts of the country not just some parts.
Posted by: Miles Lunn at August 1, 2007 08:43 PM
What the government should do is to introduce a bill to disband the CWB while not making it a confidence matter and after the liberals and NDP do not support the bill then introduce a confidence bill to then expand the "designated area" from coast to coast and then vote against their own bill and leave it up to the opposition to unanimously support a bill that would be their death in rural eastern Canada in order to avoid an election. After all if the CWB is such a great thing for western farmers why is it that eastern farmers aren't clamouring to get into the system?
Just Sayin.
Posted by: mungman at August 1, 2007 09:32 PM
Exactly. All Chuck is doing is following the letter of the law passed by the Liberal government. The law states that a vote had to be conducted before changes could be made and the changes had to be supported by a majority of the voters. The farmers voted and Chuck changed the rules. Case closed.
Now why on earth should politicians in Central canada have a say in depriving western farmers of the same freedom Eastern farmers enjoy.
That would be like saying Nova Scotia and PEI had to sell all of their fish to a government run fish board but NFLD and New Brunswick could sell to whomever they wanted to. Not only could Nova scotia and PEI not sell freely but they had to get permission from NFLD and NB in order to change the rules. How do you think that would go over. Cheers.
Posted by: sandra at August 1, 2007 11:19 PM
Totally agree sandra! If it's soooo good for western farmers, it should be just as good for eastern farmers. Make them all have to sell to the CWB, or give them all choice! Aren't Liberals big on choice? Here's their opportunity to stand with our western farmers, 67% wanted choice, now this is another case of minority rules.
Seeing as the barley futures dropped dramatically today, maybe the easterners can make up the $4 billion farmers just lost in one day, thank you CWB.
Posted by: Hunter at August 2, 2007 12:39 AM
There is a lot of loose talk about "evil easterners" being floated about. Let me remind you that the opposition to Chuck's plan is coming from the western farmers and it was struck down by a judge born and educated in, Alberta.
http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Hansen
Posted by: Greg at August 2, 2007 06:24 AM
The point is missed or ignored that the inclusion of barley under the CWB's mandate was accomplished by an order in council not by parliament.
So what Miles and others are saying is that the delegated power to regulations only apply to a former government and not to the present one.
Just as one parliament cannot bind another, one government's exercise of discretion cannot limit the discretion of another, provided the latter acts within the bounds of the empowering statute.
Read the law. The government could do exactly what they did. The somewhat feeble decision of the Federal Court is another decision the outcome of which was decided and the reasons back-filled with red-herring, citations that are either inapplicable or selectively read to the point of being out of context.
The government would likley win on appeal, but hopefully this will be a moot point since the matter should be put before Parliament when it re-convenes.
This would give the government two issues to take to the people - the Liberals' opposition to an individual's freedom of choice on what you can and cannot do with the product of your labour and Liberal appointed hacks in the judiciary that insist on legislating from the bench
Posted by: mth at August 2, 2007 06:51 AM
The government could do exactly what they did. The somewhat feeble decision of the Federal Court is another decision the outcome of which was decided and the reasons back-filled with red-herring, citations that are either inapplicable or selectively read to the point of being out of context.
Like I said, I'm not clear on this one. Nor have I read the judgement. If there is a mistake in law, an appeal can sort that out. My point is that, fundamentally, I can't get too upset when a minister must act with the approval of parliament.
Posted by: Steve Janke at August 2, 2007 09:15 AM
Read the law.
I took your advice. In fact, the law says that only parliament can do what Chuck tried to do and only after a plebiscite.
47.1 The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless
(a) the Minister has consulted with the board about the exclusion or extension; and
(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.
The Minister can extend the provisions of the act through orders in council, but can only end them through an act of parliament with the agreement of the farmers.
Posted by: Greg at August 2, 2007 01:57 PM
the important thing here is decisions should be made by elected representatives not the cabinet.
Er, no, the important thing is that the barley farmers should defy the law, no matter who is waving a piece of paper under their noses telling them "it's the law", and they should let the law whither away from neglect, as all bad laws should. By trying to get the government to strike down or repeal the law they have nevertheless surrendered to the idea that their farm and their produce are owned in common with millions of other people who have not put an ounce of sweat or a penny of capital into it.
It was "the law" passed by a popularly elected legislature, whose rule was confirmed overwhelmingly by popular plebiscite, which told Jews to wear stars of David, and which confiscated their businesses and which forbade them from working. Whenever the Jews complained, there were probably lots of (allegedly) upright, obedient citizens who got in their face and barked at them, "READ the LAW!"
Let me remind you that the opposition to Chuck's plan is coming from the western farmers and it was struck down by a judge born and educated in, Alberta.
Let me remind you that certain "western farmers" have no moral right to dictate to other western farmers what they must do with their own property. Neither does any judge, no matter how thick is the shit on his pointy boots. If that is a moral right, then your neighbors have the moral right to pass a law to make you sell them your car for $20 at the next block sale - 'cause HEY - the majority rules, right?
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Posted by: BONUSTONESGUY at August 3, 2007 12:03 AM
"The Minister can extend the provisions of the act through orders in council, but can only end them through an act of parliament with the agreement of the farmers."
Actually, the statute http://laws.justice.gc.ca/en/showdoc/cs/C-24///en?page=1 does NOT specifically state this. It does say that the farmers must agree, which they did. Furthermore, the claims that the vote was rigged are unfounded as Minister Strahl used the exact same questions as the CWB have used in their own surveys to shich they achieved similar results. I also think it is prety rich for the biggest mouth in the opposition is the Liberal Ag critic Wayne Easter, who is from PEI.
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Posted by: DanilGD at August 6, 2007 04:23 PM
Steve, you're missing the point. The Wheat Board Act isn't new, it isn't secret, it isn't in code and you don't need magic Mormon angel glasses to read it. If it really requires an act of Parliament, then no other course of action should ever have been considered.
Hey, I haven't looked at the Act, I don't know what it says, and I have no reason (other than my nasty and suspicious nature) to think that the judge actually got it wrong. The problem is, it's clear that Monte Solberg, and everybody else in his department, is in exactly the same position. And there's no excuse for that.
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Posted by: AltaGid at August 8, 2007 10:09 AM
Steve, just for the fun of it I took five minutes and looked up the law. (It doesn't take any longer than that.) "Greg" has misrepresented it. The section he quotes plainly does not require any legislation; it applies only in case legislation is introduced. If one makes provision for what to do in case of fire, one does not thereby require arson.
S. 47(1) of the Act authorises regulations to extend the Board monopoly to barley. S. 31(4) of the Interpretation Act says that where a power to make regulations is granted, the grant SHALL be interpreted to include the power to repeal or vary the regulation. That means that it was AGAINST THE LAW for this judge to hold otherwise.
So. I know this after five minutes work. Why the hell didn't Monte Solberg know it? Why didn't he come out swinging, and make it clear that this life-long Liberal, appointed by Jean Chretien, BROKE THE LAW for partisan advantage? Because she did. And if she gets away with it, she'll do it again, along with a lot of her corrupt little Liberal buddies.
This really is the most serious event of the year, and the response to it has been hopelessly inadequate. If we wanted a judicial coup d'etat, we couldn't find a better way to encourage it than by buckling so weakly at the first challenge.
Posted by: ebt at August 8, 2007 04:13 PM
Well, I had another half hour free, so I spent it finding two cases in which the courts had already heard precisely the position this judge took, and rejected it. Abe Rothstein, sitting then in the Federal Court although now on the Supreme Court, held in Saskatchewan Wheat Pool v. A-G Can. (1993), 107 D.L.R.(4th)190 at 198, that barley could indeed be removed from the Wheat Board monopoly by regulation.
Ask yourself: why are you hearing about this from me, now? Why wasn't the whole country told about it by the minister responsible when the whole thing started??
Look, the bad news here is not that Liberal judges are breaking the law for partisan purposes. We expect that. Fish gotta swim, birds gotta fly, Liberals gotta be corrupt. The bad news is that Harper's government are lying down and letting themselves be stomped on.
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