Colby Cosh

 Colby Cosh

Maclean’s man in Edmonton writes about everything. Follow Colby on Twitter: @colbycosh

Categories: Colby Cosh

‘Fundamental constitutional imperatives’, the man says

by Colby Cosh on Friday, December 9, 2011 7:53am - 25 Comments

Canadian judges are rightly protective of their independence. It takes no more than a whisper of political interference in their work—indeed, arguably much less than a whisper—to raise their hackles and bestir them to the clamorous defence of this most sacred principle. But this principle ought to cut both ways, yes? Mischievous interference in politics by judges should be castigated just as seriously, if we are to preserve the proper relationship between elected institutions and the bench—if only because involvement in law-making by judges invites reaction, pushing us toward an open contest of force between the branches of government. The branch that doesn’t command fighter jets probably shouldn’t want that.

This is worth considering, I think, after Hon. Douglas Campbell’s Wednesday afternoon decision in the Federal Court case of Friends of the Canadian Wheat Board et al. vs. Canada. Campbell’s decision has inspired an immediate loathing and derision from lawyers of a sort I don’t remember seeing since the Miglin case (2003).

Campbell was presented by the government with the argument that section 47.1 of the Wheat Board Act, which Agriculture Minister Gerry Ritz pretty obviously violated, contravenes parliamentary sovereignty. 47.1 was added in 1998; it forbids the minister from introducing a statute to take grains out of the single-desk marketing regime without holding a plebiscite of growers. As I wrote earlier, the section has never been considered quite kosher. Parliaments can bind their future successors by means of “manner and form” procedural rules, but (leaving aside some quibbles and wrinkles and impish theoretical contrarianism) they can’t put a fence around their legislative legacy by making it harder to repeal individual statutes than it was to pass them in the first place. This is as much a matter of rudimentary logic as it is of the “constitution” per se, for whose will would we expect and desire to prevail in a contest between the Parliament of 1998 and the Parliament of 2011?

In this context, it is often thought to be a particularly bad idea to devolve Parliament’s supremacy onto some other interest group outside Parliament. It should take you about five seconds to see why, though the collective brainpower of the Opposition parties hasn’t solved this Rubik’s Cube yet; a Parliament could make legislation effectively unrepealable by bestowing vetoes upon the right groups. Do we want today’s Conservative majority to pass a statute requiring a plebiscite of gun owners in advance of any change in firearms law? Would we like the Victims of Violence to have a veto over changes to the material in the omnibus crime bill? If you find such notions revolting, you can’t defend 47.1: it is exactly the same thing in principle.

Justice Campbell, presented with this argument against 47.1, refused to entertain it for technical reasons.

The Minister has attempted to argue that s. 47.1 does not meet the requirements of a “manner and form” provision. I dismiss this argument and find any debate on “manner and form” is not properly before the Court for determination. Section 47.1 is presumed to be constitutionally valid, and no argument challenging this presumption has been properly presented in the present Applications; to do so would require notice of a Constitutional Question which has not been given.

Well and good. But having found that he had no power to adjudicate the obvious constitutional question that everybody has about 47.1, Campbell went on to wax indignant about how it was his job to protect “fundamental constitutional imperatives” and the rule of law from Conservative depredations. Talk about having your cake and eating it! Having cowered behind the issue of improper notice, Campbell sows his ruling with all kinds of hints that he thinks 47.1 does represent a particularly pure, strong draught of justice. He suggests openly (see paragraph 9) that 47.1 is in fact a mere “manner and form” requirement, inoffensive to any consideration of parliamentary sovereignty. Even more outrageously, he attributes a “unique democratic nature” to the Wheat Board, implicitly suggesting that our other institutions of government are less “democratic”…because they are creations only of a democratic Parliament and aren’t held hostage by vested interests outside of it.

Having loaded up his judgment with rhetorical ammunition for the Opposition, he turned it loose without waiting for a French translation; with the amendments to the Wheat Board Act being debated on the Hill, the judge’s genius simply could not stay for the tedious requisites of official bilingualism. It worked like a charm. Liberal James Cowan could be heard last evening in the Senate, ignoring the judge’s refusal to actually hear the argument on whether 47.1 is an acceptable “manner and form” requirement and instead quoting his obiter dictum to the effect that it is one. The more polite interpretation of this event is that Sen. Cowan didn’t know any better because Justice Campbell overhastily published a stupid and confusing decision.

Tags: , , , , , , , ,
Bookmark and Share
  • Hester Eastman

    It is amazing how much Canadian public policy seems to occur because of fear of Con Party and its supporters and nothing at all to do with actually helping people. Liberal Party is now superfluous because Libs control bureaucracy.

    Coyne’s blog 2006: 

    “And the courts? Let’s just review, shall we? 89% of all political donations made by federal judicial appointees in Ontario since 1993 went to the Liberal Party of Canada. 92% of all political donations by federal judicial appointees in Quebec went to the Liberal Party of Canada. More than 60% of all federal judicial appointees in Ontario, Quebec, Alberta, Saskatchewan and Manitoba since 2000 donated exclusively to the Liberal Party of Canada in the three to five years before their appointment. Notice a pattern? (UPDATE: “Would you be surprised to find that almost all federal judges appointed from Saskatchewan are Liberal Party donors?”)

    • Anonymous

      That was a report published in 2006 using stats that predate 2006 – I wouldn’t be surprised to learn that the same people are now giving money to the party in power.  For sure, the LPC is not getting much money from anyone these days. 

      There was a time when I gave money to more than one party.  When companies were still allowed to give money to parties, most gave to all parties. 

  • Anonymous

    “Campbell’s decision has inspired an immediate loathing and derision from lawyers of a sort I don’t remember seeing since the Miglin case (2003).”

    Or this one:

    http://www.canlii.org/en/ca/fct/doc/2002/2002fct243/2002fct243.html

    (I’ll save you the trouble of noting it up – Justice Campbell’s reasons didn’t fare that well, to put it mildly, on appeal)

  • Phil King

    To me the only relevant arguments on this topic center around what justification exists to REFUSE farmers the right to opt out.

    It’s a straightforward question of personal freedom, an important principle in our society that needs to be upheld, versus the Wheat Board, which DOES NOT exist because of some greater principle that needs to be protected. I would suggest it’s a financially sound concept, but that’s no argument in principle for forcing people to comply against their wishes.

    My only problem really with what’s going on now, is that the Conservatives seem hell bent on ensuring the Wheat Board goes down in flames, rather than simply ensuring the right to opt out, and ensuring the infrastructure is there for farmers to do so.

    Then again, Reform practically came into existence around hatred of the Wheat Board. LOL

    There are obvious benefits to a collective trading position for small individual farms. It may only be one factor, but size equates to influence which impacts the price of what you’re selling. Like any bargaining that goes on, the power balance in negotiations, especially with multi-nationals like Monsanto, matters a great deal.

    Now of course, if you think you can do better, then you should be able to go for it, but I suspect that five years from now, the difference between the pre-Wheat Board and post-Wheat Board era, will be the name and number of collectives in play, with only a smattering of larger independent operators outside them.

    In terms of “47.1″ it seems to me that the intent was to give control to the farmers as a whole. Obviously I think that approach was misguided for the reasons cited above, and I can’t see how a previous parliament should have the ability to impinge on the current parliament in that manner.

    Of course I’d be far more comfortable if parlimentary majorities actually meant that a majority of Canadians were represented, but that’s another rant for another time. LOL

    • Anonymous

      I tend to think that the difference between now and then will be the same overall number of players, but none of them will be collectives, with most of the current farmers having been forced out.

      • Phil King

        So of course I have to ask what you mean then by “same overall number of players”.

        In any case, the small farms will either form collectives or get bought out in my opinion.

        • Anonymous

          Right now there are a certain number of players in the market. The CWB being a large collective of them. With the CWB gone, I expect we may get one more “large” company out of it, but the small farms will get bought out, one by one. Because the larger firms have the leverage and lack of starvability that the small farms do.. so will be able to pick them off one by one — being able to pull them out of any voluntary collective by paying higher prices tied to a non-cooperation contract.

          This will, I expect, end up reducing our farming industry to a small oligopoly with no concern for ordinary Canadians.

  • Phil King

    “…Conservative majority to pass a statute requiring a plebiscite of gun owners in advance of any change in firearms law? Would we like the Victims of Violence to have a veto over changes to the material in the omnibus crime bill? If you find such notions revolting, you can’t defend 47.1: it is exactly the same thing in principle…”
     
    While I basically agree with Colby’s overall point, ie that individual farmers SHOULD be able to opt out, I think these examples are terrible. They’re proving the exact opposite point to what he appears to want to make.
     
    Obviously he’s implying the majority of farmers shouldn’t be able to control the minority that wants to opt out of the Wheat Board, but he’s using examples of minorities dictating to majorities, which I don’t think applies here.
     
    Even if you view his argument from the perspective that the present parliament should be supreme over any past parliament, that doesn’t work here either for obvious reasons.

    The entire point of the legislation was to ensure that only those who are involved in wheat farming in the WEST should have say over the state of the Wheat Board, rather than allowing for example, Eastern Canadians to vote in governments that might work against farmer’s interests.

    So they gave the power of determination to the Western wheat farmers in a bid to limit the influence of outsiders!

    Ironic isn’t it?

    In fact the whole reason the Conservatives are having trouble is because the majority of WESTERN farmers DON’T agree with them and haven’t in any plebiscite ever had on this topic with wheat farmers! And every farmer has a voice in the process, thus it is in my opinion more democratic in terms of this issue, than the current parliament! LOL

    No, I wouldn’t go down that road at all in terms of debate.

    There are far more fundamental principles that point to the right of self determination needing protection that trump the basic economic arguments in this case.

    • Anonymous

      “…I think these examples are terrible. They’re proving the exact opposite point to what he appears to want to make.
       
      Obviously he’s implying the majority of farmers shouldn’t be able to control the minority that wants to opt out of the Wheat Board, but he’s using examples of minorities dictating to majorities, which I don’t think applies here.”

      These aren’t examples of plebiscites that would be the equivalent of the one in s. 47.1.  They are examples of putting “poison pills” in legislation to fetter future governments from changing the law, which, according to Justice Campbell, is perfectly OK.

      • Phil King

        I think the whole discussion just avoids the obviously larger and more important principle of the right to self determination and freedom of association.

        All the Wheat Board has in its favour is a good economic argument, which pales in comparison to the larger principles at play.

        So personally I think delving into legalistic arguments at all is just silly. The judge is being silly, and the opposition is being silly.

        That said, given that the majority of Western farmers WANT a collective bargaining position, there should be as much effort being put into that as there is being put into ensuring the right to opt out.

        I don’t currently feel that is the case.

        • Garnet

          Freedom of association, but not freedom from association, I guess.

          • Phil King

            Yeah well I think we agree that they SHOULD be the same thing, and in effect are supposed to be!

            Cheers.

    • Hester Eastman

      Adam Smith ~ Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer. The maxim is so perfectly self-evident, that it would be absurd to attempt to prove it.

  • Anonymous

    “Mischievous interference in politics by judges should be castigated just as seriously, if we are to preserve the proper relationship between elected institutions and the bench….”

    There already exists a mechanism by which a judge’s opinion may be castigated in that an aggrieved  party might appeal to a higher court.

  • http://twitter.com/fiveare fiveare

    My biggest problem with Campbell’s ruling is that he buys the paper thin argument presented by Friends of the Wheat Board et al. that s. 47.1 should have a far broader interpretation than a straight reading would give it. They use the political rhetoric surrounding the 1998 amendment to argue that the CWB has to be consulted over any significant change to the act; however, the wording of the section is not vague or complex enough to warrant such a treatment. Section 47.1 clearly refers to changes to the types of crops marketed by the board. The fact that he accepts such weak arguments suggests that he either has an axe to grind or he just wants to kick the can up to the Supreme Court.

    • Matt Ramsden

      from s47.1: 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… http://laws.justice.gc.ca/eng/acts/C-24/page-19.html

      I think scrapping the CWB – thereby excluding all grains from the act – violates the above.

      • http://twitter.com/fiveare fiveare

        They aren’t scrapping the CWB, they’re making participation in it voluntary. Theoretically the CWB could continue to operate exactly as it does now.

        • Matt Ramsden

          True – careless language on my part… but I still think that removing the core of the act is, for all practical purposes, equivalent to removing all grains from the act.

  • Anonymous

    Are you not overlooking the fact that 47.1 itself could have been repealed by regular statute?

    • Phil King

      Yeah, there’s that too eh?

      Why is it the CPC has to make a fuss out of everything?

      Somehow I suspect they want it to be this way.

      Keeps the base agitated eh?

    • Hester Eastman

      I have wondered about this. Judge Campbell is gormless but I also wonder why Cons just didn’t change the statute and save us from nonsensical judges. Stories recently make it seem like amateur hour at PMO and a fundamental ignorance about how Parliament works.

      Canadian Press ~ Nov 2011

      “The Conservative government faced accusations of snoozing at the legislative wheel after trying to introduce 11th hour changes to their big crime bill — changes that they rejected only a week ago when they were proposed by the opposition.”

  • Anonymous

    I’m not going to dig it up, but it would sure interesting to read the debate from 2nd and third readings and Committee evidence and the advice provided to SREGS committee by DOJ about the language being used and its implications for future change at the time the Bill was passed. We pay a lot of people a lot of money to avoid these kinds of problems.

  • Anonymous

    Wow, and people talk about how CBC has bias.

    If you go by what Colby says, he suggests the judge refuses to consider if it’s a manner and form argument from the CPC, then goes on to say it is.  As usual, however, Colby has it ass-backwards, because people who actually know how to read understand that you read paragraph 9 before paragraph 10.

    To wit, in paragraph 9 the judge says that the legislation contains restrictions about how things are to be done and these are known as manner and form arguments.

    Then in paragraph 10 he says that the CPC is attempting to argue that these are *not* manner and form arguments at all, but nobody’s ruled on that yet, so, since the law was passed by parliament and that portion of it remains unchallenged, we have to assume that it’s valid.

    And of course, Colby leaves out paragraph 34..

    34) The first effect is that a lesson can be learned from what has just occurred. Section 47.1 speaks, it says: “engage in a consultative process and work together to find a solution.”  The change process is threatening and should be approached with caution.  Generally speaking, when advancing a significant change to an established management scheme, the failure to provide a meaningful opportunity for dissenting voices to be heard and accommodated forces resort to legal means to have them heard. In the present piece, simply pushing ahead without engaging such a process has resulted in the present Applications being launched. Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary.  Judicial review serves an important function; in the present Applications the voices have been heard, which, in my opinion, is fundamentally importantly because it is the message that s. 47.1 conveys.

    • http://www2.macleans.ca/category/blog-central/canada-blog/colby-cosh/ Colby Cosh

      Not sure what purpose is served by highlighting the self-congratulatory therapeutic drivel in paragraph 34, but OK. I guess my piece wasn’t boring enough on its own.

      • Anonymous

        I know, it sucks when someone puts out some rhetoric drivel to balance out your own, doesn’t it? How the hell can you sway people’s emotions if you don’t get the field all to yourself. I understand.

Previous

Next

From Macleans