Winnipeg, Manitoba, Canada
June 20, 2008
Government ruled in violation
of Charter of Rights and Freedoms
The federal government contravened
the Charter of Rights and Freedoms in banning the
CWB from participating in the
debate over the future of grain marketing,
a federal
court judge ruled yesterday.
The Honourable Mr. Justice Roger Hughes also ruled, in a written
decision, that the federal order was issued for an improper
purpose. The ruling upholds farmer control of the CWB, stating
that the CWB’s board of directors – not government – has the
responsibility to ensure farmers’money is well spent.
“The Minister... argues that he has a duty to safeguard the
funds of producers that may be at risk. I do not find such a
duty set out directly or by reasonable implication to the Act,”
the decision reads. “To the contrary, the provision of a board
of directors, 10 of 15 of whom are elected by the producers,
places the duty to safeguard the producers interests’ with the
board, not the Minister.”
Larry Hill, chair of the CWB’s board of directors, said he was
pleased that a federal court has once again reaffirmed that
farmers control the CWB through their elected farmer directors.
“The government’s argument was that the CWB is not, in their
view, controlled by farmers but remains subject to significant
government control. As both a farmer and an elected director of
this organization, I find that attitude very troubling,” Hill
said. “It is also inconsistent with what the vast majority of
producers want for their marketing organization – which is to
control it themselves.”
Hill also said it is important, at a time when there is
extensive public debate about the future of the CWB, that
farmers have access to as much information as possible about the
purpose, role and value of their marketing organization — and
the realistic scenarios for its future.
“Producers deserve the benefit of a free and open debate.
Instead, while the CWB has been silenced on this issue, others
have continued to actively promote their own positions.”
In finding that the direction impinges on freedom of free of
expression and violates the Charter, Justice Hughes wrote:
“There has been no demonstration of any pressing or substantial
economic objective, the only true objective to constrain the
advocacy of the Board against government policy. Given the true
objective, there is no rational connection to economic
considerations. The impairment of the Board’s activities may be
minimal, but the clear public interest against stifling public
debate overwhelms that consideration.”
The CWB had also challenged a government directive ordering the
CWB to compensate interim CEO Greg Arason at a level set by the
federal government. This case was heard concurrently. Justice
Hughes ruled this issue to be moot, as Arason has since been
paid and is no longer employed by the CWB.
“Although we are disappointed, we believe that the ruling on the
advocacy directive has achieved a similar objective, since it
has affirmed the principle of farmer control through the CWB
board of directors,” Hill said. Controlled by western Canadian
farmers, the CWB is the largest wheat and barley marketer in the
world. One of Canada’s biggest exporters, the Winnipeg-based
company sells grain to over 70 countries and returns all sales
revenue, less marketing costs, to Prairie farmers.
EXCERPTS
The following are excerpts from
the written decision of the Honourable Mr. Justice Roger Hughes,
delivered on June 19, 2008. The
full decision
is also available.
- “It is hereby declared
that the Governor in Council acted contrary to law by
issuing said Direction for the improper purpose of
prohibiting the Canadian Wheat Board from making public
statements opposing the Government of Canada’s policy
regarding the future of the Canadian Wheat Board and from
communicating with western Canadian producers regarding the
Wheat Board’s statutory object.”
- “The Minister… argues that
he has a duty to safeguard the funds of producers that may
be at risk. I do not find such a duty set out directly or by
reasonable implication to the Act,” the decision reads. “To
the contrary, the provision of a board of directors, 10 of
15 of whom are elected by the producers, places the duty to
safeguard the producers interests’ with the board, not the
Minister.”
- “It is a fundamental tenet
of a free and democratic society that the citizens of a
country agree to be governed and obey the laws if proper and
fairly imposed, and that the government conduct itself in
accordance with those laws and the principles of natural
justice and jurisprudence. It is a bargain that must be kept
by both sides.”
- “The direction is couched
in terms of expenditure of funds, however nowhere in the
record is there any evidence that genuine consideration was
given to the nature or extent of funds that were in issue or
at risk.”
- “It is entirely clear…
that the directive is motivated principally to silencing the
Wheat Board in respect of any promotion of a ‘single desk’
policy that it might do. There is no mention in the
direction to any promotion that the Wheat Board might do,
for instance, to support the Minister’s preference for an
open market or market choice. If the Minister were truly
concerned about the cost of such promotions, and there is no
evidence of any genuine grounds for concern, then surely the
Minister should have dealt with promotion for or against the
Minister’s preferred position, and not just against.”
- “... (T)o restrain the
Board in one respect only, that is, from advocating a
position contrary to the policy of the government in power,
is inconsistent with any aim or objective established in the
Wheat Board Act. If advocacy was of serious financial
concern, then all advocacy, for or against, would be the
only sound basis for dealing with that concern.”
- “... (A) direction that is
not in accordance with the objects and purpose of the Act,
as I have found, and impinges on freedom of expression, is
in violation of section 2(b) of the Charter and I so find in
these circumstances.”
- “There has been no
demonstration of any pressing or substantial economic
objective, the only true objective to constrain the advocacy
of the Board against government policy. Given the true
objective, there is no rational connection to economic
considerations. The impairment of the Board’s activities may
be minimal, but the clear public interest against stifling
public debate overwhelms that consideration.”
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