Judge’s Decision Hardly Democracy

Commentary, Marketing Boards, Frontier Centre

Fuzzy thinking and heated politics surround the latest near-death experience of the Canadian Wheat Board.

In a Federal Court decision last week, Madame Justice Dolores Hansen ruled the government could not exclude barley from CWB control by changing the regulations though it could (and did) include it under board control by regulatory change. Exclusion, she said, required a legislative amendment to the Wheat Board Act. At once, Aug. 1 changed from “barley freedom day” into another day of monopoly domination.

Opponents of removing barley from the board monopoly are well known. First in line are the bureaucrats employed by the CWB whose self-interest is evident. They were joined by the NDP governments of Manitoba and Saskatchewan and the nervous Nellies of the Farmers’ Union who have long been afraid to compete. Filled with nameless fears, they did what such people often do — projected their own anxieties onto those with whom they disagreed and declared that the Harper government was following an “ideological agenda.”

In fact, it was not ideology that inspired the government to liberate the farmers of New Dayton or Kindersley from the bureaucratic serfdom imposed by the CWB, but the sound ethical and political belief that they were grown-up citizens, just like the farmers of Ontario. The CWB makes as much sense today as a Canadian lawyers board (CLB) staffed by plumbers or piano teachers that would set the maximum rates lawyers could charge and how many hours a day they could work. The CLB would, of course, apply only to the “designated area” east of the Ottawa River.

The effects of the decision were entirely predictable. Sellers had expected to dispose of around a half-million tonnes of barley on the international market directly, without having their grain handled by the CWB.

Now foreign farmers will supply it, which means a glut on the domestic market and explains why cash prices dropped 70 cents a bushel and futures fell $7.50 a tonne. One farmer reported he lost $40,000 on Aug. 1.

Another said he would send the board a sample of his fine malting barley along with the shipping receipt of its sale to a feedlot “where it’ll be turned into manure.”

Responses of the CWB supporters were also predictable. Board chairman Ken Ritter said the price depression was just “psychological.” No, Ken. It’s supply and demand, the way free markets, not coercive monopolies, work.

One of the silliest comments was by Manitoba Agriculture Minister Rosanne Wowchuk, who declared “democracy has prevailed.” Not to be outdone, a Toronto academic, Grace Skogstad, said that the government effort to free barley-growers “shows a callous disregard for democracy.”

What these self-styled defenders of democracy seem to have forgotten is that in a referendum last spring, barley producers voted almost two to one to market their own grain outside CWB tutelage.

In order to reach her decision, Hansen had first to accord great weight to the provision of the Wheat Board Act allowing inclusion of barley by regulation.

Because the Act was silent about excluding barley by regulation, she said this meant Parliament must have intended that barley could be excluded only by legislation. Second, she considered debates recorded in Hansard, which might give clues to the intentions of Parliament, to be unhelpful. Finally, she gave little weight to the commonsensical provisions of the Interpretation Act that stated that a power to make regulations includes the power to repeal them.

It is probably fair to say that another judge might have come to the exact opposite conclusion and decided that including or excluding barley from CWB control could be done equally by regulation.

There is another curious aspect to the decision. Hansen also could have given the government time to amend the Wheat Board Act to her satisfaction, as other judges have done with similarly ambiguous and politically controversial legislation. But this would have meant that, for a while, Canadian farmers could take part in an international barley market. When that happened in 1993, barley sales surged. It would have happened again, which might have eventually led to a free market in wheat.

All is not lost. The government can amend the Wheat Board Act and make it a confidence measure. At one stroke, it would put the Wheat Board out of its misery, remove the ability of the board to impose misery on others, and show the kind of decisive leadership that is invariably followed by increased popular support. That is what genuine democracy entails.