[2000] 4 F.C. 479
A-364-97
Ron Archibald, Edwin Cawkwell, William Cooper, Rick Dobranski, Darrel Enger, Tim Harvie, Mike Jackson, Conrad Johnson, Gordon Keller, Wayne A. Kriz, Doug Miller, Art McElroy, Brian Olsen, Paul S. Orsak, Brian Otto, James M. Pallister, Kelly S. Patrick, Douglas Robertson, Greg Rockafellow, Buck Spencer, Wayne Tuck, The Alberta Barley Commission, and The Western Barley Growers Association (Appellants) (Plaintiffs)
v.
Her Majesty the Queen in right of Canada and The Canadian Wheat Board (Respondents) (Defendants)
Indexed as: Archibald v. Canada (C.A.)
Court of Appeal, Décary, Rothstein and Sharlow JJ.A. —Calgary, May 1, 2; Ottawa, June 12, 2000.
Agriculture — Canadian Wheat Board Act — Compulsory pooling under Wheat Board monopoly in designated area in Western provinces for stated purpose of securing orderly marketing, in interprovincial and export trade, of grain grown in Canada — Act not infringing appellants’ Charter rights, freedoms — In any event, demonstrably justified in free and democratic society.
Constitutional law — Charter of rights — Equality rights — Compulsory pooling under Canadian Wheat Board Act — No discrimination on basis of geography (place of residence and production of grain within designated area) as not analogous ground.
Constitutional law — Charter of rights — Fundamental freedoms — Freedom of association — Compulsory pooling under Canadian Wheat Board Act — Although Charter, s. 2(d), in some circumstances, protecting right not to associate, activity herein (marketing of grain) not constitutionally protected — Also, as activity not constitutionally protected, no constitutional basis for arguing appellants should be able to sell grain in voluntary association with others.
Constitutional law — Charter of rights — Mobility rights — Compulsory pooling under Canadian Wheat Board Act — Act law of general application in force throughout Western provinces (but only part of British Columbia) — Fact Act creating different marketing scheme for grain grown in designated area from that grown outside designated area not creating distinction constituting discrimination primarily on basis of province of present or previous residence.
Constitutional law — Charter of rights — Limitation clause — Application of Oakes test — Pressing and substantial objective: to secure orderly marketing, in interprovincial and export trade, of grain grown in Canada — Rational connection — Minimal impairment: no reasonable alternatives to Wheat Board monopoly in meeting Act’s objectives — Proportionality of effects test met: deleterious effects on appellants rights outweighed by salutary effects of orderly marketing of grain under Wheat Board — Weighing of competing interests — If any of appellants’ Charter rights breached by Act, reasonable limits in free and democratic society.
The appellants are owners and operators of farms in a designated area including Manitoba, Saskatchewan, Alberta and parts of British Columbia who grow wheat and/or barley. Under paragraph 32(1)(a) of the Canadian Wheat Board Act, the Canadian Wheat Board (CWB) is required to buy all wheat and barley produced in the designated area and offered for sale to the CWB by a producer at an elevator or in a railway car. The CWB is required to undertake to market such wheat and barley in interprovincial and export markets. The individual producers in the designated area are prohibited from selling their wheat or barley in another province or outside Canada.
The appellants say this system breaches their right to equality under the law under subsection 15(1) of the Charter; their right to freedom of association, and freedom from association under paragraph 2(d) of the Charter; their right, under paragraphs 6(2)(b) and 6(3)(a) of the Charter to pursue the gaining of a livelihood in a province by imposing barriers to sound farm administration.
This was an appeal from the Trial Division finding that the alleged Charter breaches were not well founded and that, in any event, such breaches would be demonstrably justified under section 1 of the Charter.
The appellants focus their appeal on the compulsory pooling aspect of the CWB scheme, which they say is economically disadvantageous for them, and which, by removing from them the right to market their wheat and barley and relegating them to the status of mere producers, affects their dignity, self-worth and personal autonomy.
Held, the appeal should be dismissed.
Equality rights
The appellants argued that the Act discriminated against them on the basis of geography, i.e. their place of residence and production of wheat and barley within the designated area.
The appellants have not demonstrated a cognizable analogous ground (analogous to those “immutable or constructively immutable personal characteristics” mentioned in section 15 of the Charter). Residence and location of a farm within the designated area were not an immutable characteristic nor a constructively immutable one. The effect upon the individual of whether one’s farm is located within or outside the designated area, i.e. whether there is or is not a requirement to sell wheat and barley to the Canadian Wheat Board, is not linked to the essential factors of dignity or personal identity that subsection 15(1) is intended to protect. Nor is there any evidence that producers who reside and farm within the designated area are, by reason of their location, members of a discrete or insular minority or have been historically subjected to discrimination or prejudice.
Freedom of association
The appellants say that pooled marketing breaches their guarantee of freedom of association in that they are compelled to associate with the CWB; they are compelled to associate with all other producers of wheat and barley in the designated area; and they are prohibited from voluntarily associating with other producers of their own choosing.
The first two complaints do not involve the freedom to associate but rather, the freedom not to associate, which, based on the reasoning of La Forest and McLachlin JJ. in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, may, in some circumstances, be protected by paragraph 2(d) of the Charter. However, freedom of association protects only the associational aspects of activities and not the activities themselves. If the activity is to be protected by the Constitution, that protection must be found elsewhere than in paragraph 2(d): Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 (CEMA). In this case, the prohibition to market wheat and barley grown in the designated area outside the CBW regulatory scheme cannot be used as a springboard to constitutionalize the foundational activity, i.e. the marketing of wheat and barley, under the guise of paragraph 2(d) of the Charter. The fact that individuals have associated for the purpose of carrying on activities does not give those activities constitutional protection if they are not otherwise constitutionally protected when done by individuals.
As to the third complaint, the simple answer is that the appellants cannot do in voluntary association what they are prohibited from doing individually. Since the individual activity, the marketing of wheat and barley, is not constitutionally protected, there is no constitutional basis for arguing that they should be able to sell their wheat and barley in voluntary association with others.
Mobility rights
The appellants say that the requirement to sell wheat and barley to the CWB breaches their right to pursue the gaining of a livelihood in the province in which they reside and produce wheat and barley; that the CWB Act is not a law of general application in a province; and that, in any event, the Act discriminates primarily on the basis of province of present residence.
The mobility right articulated in paragraph 6(2)(b) must be read in light of the discrimination provision contained in paragraph 6(3)(a). The magnitude of economic disadvantage is not a matter for consideration in the section 6 analysis, but is better left to section 1 of the Charter. However, an assessment of the impact of the impugned legislative distinction does have an important role to play in determining whether the ostensible purposes of the legislation are valid under paragraph 6(3)(a).
It is the difference in treatment in respect of the sale of wheat and barley between producers within and outside the designated area that triggers the mobility factor in pursuit of a livelihood.
The CWB Act is a law of general application in force in a province. The fact that the designated area does not coincide precisely with provincial boundaries per se, and that the area is characterized by large grain crops which distinguishes it from other areas of Canada, is further evidence that provincial boundaries are merely being used as a reasonably accurate marker for an economic reality which generally exists in those provinces: CEMA. While the Act creates a different marketing scheme for wheat and barley grown in the designated area from that grown outside that area, such distinction does not constitute discrimination primarily on the basis of province of present residence. That the designated area is characterized by large grain-growing regions which distinguish it from other areas of Canada is evidence that targeting the CWB’s mandate and activities to the designated area recognizes an economic reality. There are thus objective reasons for the operation of the CWB marketing scheme being limited to the designated area.
Limitation clause
Although the CWB Act did not violate the Charter on any of the grounds alleged by the appellants, a section 1 analysis was conducted in the interest of providing a complete analysis of the legal issues argued upon this appeal.
The legislation fulfilled a pressing and substantial objective: to secure the orderly marketing, in interprovincial and export trade, of grain grown in Canada. There was a rational connection between the objective of orderly marketing of grain and the means set forth in the CWB Act to achieve that objective. The CWB monopoly in the designated area was essential, and there were no viable alternatives which would permit the marketing of wheat and barley by producers in the designated area outside the CWB marketing scheme. Finally, the deleterious effects on the appellants’ rights were outweighed by the salutary effects of the orderly marketing of wheat and barley under the CWB. Parliament should be given significant deference in so far as the proportionality of effects test is concerned. Finally, if any Charter rights of the appellants have been breached by any of the impugned provisions of the CWB Act, the respondent has demonstrated that they constitute reasonable limits on those rights in a free and democratic society.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Canadian Wheat Board Act and to make consequential amendments to other Acts, S.C. 1998, c. 17, ss. 1, 9.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2, 6(2)(b), (3)(a), 7, 15(1), 32.
Canadian Egg Licensing Regulations, 1987, SOR/87-242.
Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646.
Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8.
Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2(1) “designated area” (as am. by S.C. 1998, c. 17, s. 1), “order”, “permit book”, “quota”, (3), (4), 17(3)(b), 20, 21, 23, 24 (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 6), 25 (as am. idem, s. 7), 26, 27, 28, 30, 31, 32 (as am. by S.C. 1995, c. 31, s. 2; 1998, c. 17, ss. 18, 28), 33 (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 8; S.C. 1991, c. 33, s. 2; 1994, c. 39, s. 1; 1995, c. 31, s. 3), 33.1-33.5 (as enacted by S.C. 1994, c. 39, s. 2), 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 (as am. by R.S.C., 1985 (4th Supp.), c. 37, s. 32), 44, 45 (as am. by S.C. 1994, c. 47, s. 48; 1998, c. 17, s. 28), 46(c) (as am. by S.C. 1994, c. 47, s. 49), (d) (as am. idem), (e), 47, 48(2), 55, 57, 60(1), 64, 65, 66(1), (2), 67, 68(2)(b), 72(2)(c), 75.
Canadian Wheat Board Regulations, C.R.C., c. 397, ss. 2 “applicant”, “application”, “assignable acres” (as am. by SOR/93-390, s. 1), 3, 4, 5, 6, 7, 8 (as am. by SOR/84-408, s. 1), 9 (as am. by SOR/89-282, s. 1), 14 (as am. by SOR/95-338, s. 1), 14.1 (as enacted by SOR/93-360, s. 2; 93-486, s. 2), 16(2) (as am. idem, s. 3), 21 (as am. by SOR/88-385, s. 1; 89-365, s. 1), 22, 23, 24 (as am. by SOR/93-390, s. 8), 25.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 5.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92, 121.
Farm Products Agencies Act, R.S.C., 1985, c. F-4.
Indian Act, R.S.C. 1970, c. I-6, s. 88.
CASES JUDICIALLY CONSIDERED
APPLIED:
Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; (1991), 3 O.R. (3d) 511; 81 D.L.R. (4th) 545; 91 CLLC 14,029; 4 C.R.R. (2d) 193; 126 N.R. 161; 48 O.A.C. 241; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; (1998), 223 A.R. 201; 166 D.L.R. (4th) 1; 231 N.R. 201; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. 1; 38 D.L.R. (4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R. (2d) 97; 87 CLLC 14,021; 28 C.R.R. 305; 74 N.R. 99; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; [1990] N.W.T.R. 289; (1990), 72 D.L.R. (4th) 1; [1990] 5 W.W.R. 385; 49 C.R.R. 193; 90 CLLC 14,031; 112 N.R. 269; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490(1986), 26 C.R.R. 233; 6 F.T.R. 203 (T.D.); The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 417; 31 C.R.R. (2d) 189; 187 N.R. 1.
DISTINGUISHED:
Kruger et al. v. The Queen, [1978] 1 S.C.R. 104; (1977), 75 D.L.R. (3d) 434; [1977] 4 W.W.R. 300; 34 C.C.C. (2d) 377; 9 C.N.L.C. 624; 15 N.R. 495.
CONSIDERED:
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; (1997), 152 D.L.R. (4th) 577; 43 M.P.L.R. (2d) 1; 219 N.R. 1.
REFERRED TO:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Wong v. Canada, [1997] 1 F.C. 193(1996), 119 F.T.R. 306 (T.D.); Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, [1958] S.C.R. 626; (1958), 15 D.L.R. (2d) 145; 77 C.R.T.C. 322; Skapinker, Re (1983), 40 O.R. (2d) 481; 145 D.L.R. (3d) 502; 3 C.C.C. (3d) 213; 3 C.R.R. 211 (C.A.), revd Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 11 C.C.C. (3d) 481; 53 N.R. 169; 3 O.A.C. 321; Mia and Medical Services Commission of British Columbia, Re (1985), 17 D.L.R. (4th) 385; 61 B.C.L.R. 273; 15 Admin. L.R. 265; 16 C.R.R. 233 (S.C.); Demaere v. The Queen (Canada), [1983] 2 F.C. 755(1984), 11 D.L.R. (4th) 193; 20 Admin. L.R. 40; 52 N.R. 288 (C.A.); M. v. H., [1999] 2 S.C.R. 3; (1999), 171 D.L.R. (4th) 577; 238 N.R. 179; 121 O.A.C. 1; 46 R.F.L. (4th) 32; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115.
APPEAL from a Trial Division decision ([1997] 3 F.C. 335(1997), 146 D.L.R. (4th) 499; 129 F.T.R. 81) dismissing the appellants’ action for a declaration that the Canadian Wheat Board Act breached their rights and freedoms under paragraph 2(d), 6(2)(b), (3)(a) and subsection 15(1) of the Charter. Appeal dismissed.
APPEARANCES:
Loran V. Halyn for appellants.
R. Dale Gibson, Keith F. Groves and James N. Shaw for respondents.
SOLICITORS OF RECORD:
Sugimoto & Company, Calgary, for appellants.
Gibson, Dale Associates, Edmonton, Keith F. Groves, Calgary, Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
OVERVIEW OF APPELLANTS’ COMPLAINT
[1] This is an appeal from an April 11, 1997 judgment[1] of Muldoon J. of the Federal Court—Trial Division, dismissing the appellants’ action for a declaration that parts of the Canadian Wheat Board Act[2] breach their rights and freedoms under paragraph 2(d), section 6 and subsection 15(1) of the Canadian Charter of Rights and Freedoms.[3] The challenged portions of the Act and Regulations are set forth in Appendix “A”.
[2] The appellants are 21 owners and operators of farms in Manitoba, Saskatchewan and Alberta who grow wheat and/or barley, and two corporate entities with objects relating to barley. Under paragraph 32(1)(a) of the Canadian Wheat Board Act, the Board is required to buy all wheat and barley produced in the “designated area” (defined in subsection 2(1) of the Act as being Manitoba, Saskatchewan, Alberta and parts of British Columbia known as the Peace River District and the Creston-Wynndel Areas)[4] and offered for sale to the Board by a producer at an elevator or in a railway car.[5] The Board is required to undertake to market such wheat and barley in interprovincial and export markets. Under paragraph 45(c) of the Act, individual producers in the designated area are prohibited from selling their wheat or barley in another province or outside Canada.[6] [7] [8] [9] [10]
[3] The appellants say the requirement to sell their wheat and barley to the Canadian Wheat Board and the prohibition against selling it themselves to customers in domestic and export markets:
(a) breaches their right to equality under subsection 15(1) of the Charter by requiring them to sell their wheat and barley to the Canadian Wheat Board while producers of wheat and barley outside the designated area are free to sell their wheat and barley in domestic and export markets;
(b) breaches their right to freedom of association, and freedom from association under paragraph 2(d) of the Charter because they are forced to associate with the Canadian Wheat Board and all other producers of wheat and barley in the designated area against their will, and are precluded from either selling their wheat and barley individually or voluntarily associating with other producers of their choice to market their wheat and barley;
(c) breaches their right under paragraphs 6(2)(b) and 6(3)(a) of the Charter to pursue the gaining of a livelihood in a province by imposing barriers to sound farm administration.
[4] Muldoon J. determined that the alleged Charter breaches were not well founded. In addition, he went on to find that even if the Canadian Wheat Board Act did breach the Charter, such breaches would be demonstrably justified under section 1 of the Charter. Accordingly, he dismissed the appellants’ action.
[5] On appeal before this Court, the appellants say that they do not object to the existence or continued operation of the Canadian Wheat Board or the Canadian Wheat Board Act generally. The focus of their complaint is the compulsory pooling aspect of the Canadian Wheat Board scheme.
[6] The appellants describe compulsory pooling as the requirement to sell their wheat and barley solely to the Canadian Wheat Board and receive a pooled price from the Board after deduction by the Board of its expenses. They describe compulsory pooling in their notice of constitutional question in the following manner:
Under the scheme of the Act, producers, the delivery of whose wheat is accepted by or on behalf of the Board, receive an “initial payment” at the time of delivery, the amount of which is fixed by the Governor General in Council, or, with his approval, by the Board. Thereafter producers may receive a “final payment”, if and at some time after, the Board has succeeded in receiving payment to the Board for the Board’s sale of all its wheat of that type, grade and quality, and after deduction of the Board’s “expenses” which it associates with its operations.
Under the scheme of the Act, wheat delivered to the Board is treated thereafter as “pooled” into type, grade and quality by the Board, such that two or more producers delivering wheat determined by the Board to fall within the same type, grade and quality, and thus treated within the same “pool”, will receive pro rata the same payments, if any, from the Board.
[7] Some of the problems the appellants identified with the compulsory pooling system were:
1. They are burdened with the administrative costs of the Canadian Wheat Board which are deducted before returns are given to producers;
2. They are burdened with storage, elevation and transportation costs of the Canadian Wheat Board which they say they could reduce if permitted to manage these activities on their own;
3. They are precluded from maximizing their revenue from high quality wheat or barley because the Canadian Wheat Board does not recognize all of the highest grades and their wheat and barley is pooled into lower grades recognized by the Board.
4. They are unable to fully participate in the business of farming as they are deprived of participating in the marketing function for their wheat and barley.
[8] The appellants say that while there is an economic aspect to their complaint, their concerns are broader. They say that removing from them the right to market their wheat and barley and relegating them to the status of mere producers affects their dignity, self-worth and personal autonomy.
[9] While this brief summary of the appellants’ position does not attempt to exhaustively reflect the evidence at trial, it provides an overview of the reasons why the appellants brought their action and have now appealed from its dismissal by the Trial Judge.
THE “ECONOMIC” AND “TRADE AND COMMERCE” ISSUES
[10] Before addressing the merits of the appellants’ Charter claims, it will be convenient to deal with the appellants’ arguments in respect of two peripheral aspects of the judgment under appeal.
[11] The appellants submit that the Trial Judge erred in finding that the Charter does not recognize economic claims. They point to the discussion in his reasons under the heading “Economic & Property Rights Not Guaranteed” [at page 383 et seq.] and to one of his concluding remarks [at page 439] that:
… the initial and still current interpretation of the Charter, (in this Court’s view a correct one), is this: the Charter does not protect the individuals’ economic or commercial aspirations.
To the extent the learned Judge’s comments may be construed as disqualifying any Charter claim to which there is an economic or commercial aspect, I would have to disagree. Merely because there is an economic aspect to a Charter claim does not, for that reason alone, disqualify it. As appellants’ counsel has pointed out, there have been numerous Charter cases in which there was an economic component or implication to a claim.[11] On the other hand, where a claim is based solely on economic grounds, I think it unlikely that a Charter claim could succeed.[12]
[12] The appellants also take issue with the Trial Judge’s apparent conclusion that, notwithstanding the Charter, the Canadian Wheat Board Act is valid law because it is authorized under the federal government’s constitutional jurisdiction to regulate trade and commerce under section 91, class 2 of the Constitution Act, 1867.[13] By way of example, the appellants point to his conclusion [at paragraphs 191-192, pages 439-440] that:
… without any consideration of section 1, [of the Charter] the CWB Act and the Board’s monopoly are valid in law, and despite the Charter, in terms of the judgment of the Supreme Court of Canada in the Ontario Separate Schools Reference, [1987] 1 S.C.R. 1148, in regard to Parliament’s legislative jurisdiction under section 91, class 2 of the Constitution Act, 1867.
In Canada’s free and democratic society, Parliament, with its undoubted power to make laws within the class of subject [sic] of trade and commerce, must remain free to fix what is quintessentially a political problem, by freeing or regulating the market, virtually as it and the government see fit …. Such decisions are for Parliament and not for the Court, so long as Parliament infringes no Charter rights, or if it does, so long as the infringement be demonstrably justified, or if a constitutional imperative exacts the unimpaired integrity of a head of legislative power. [Emphasis added.]
[13] The respondents did not attempt to justify this aspect of the learned Judge’s reasons.
[14] The interpretation of provisions of the Charter may be assisted by reference to other parts of the Constitution.[14] However, if the words of the Trial Judge leave the impression that an enactment may be immune from scrutiny under the Charter by virtue of it being intra vires a jurisdiction conferred under section 91 or 92 of the Constitution Act, 1867, this would be a view to which I could not subscribe. Section 32 of the Charter states:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Thus, although the Canadian Wheat Board Act is valid federal legislation in the context of the division of powers between the federal and provincial governments,[15] it must still comply with the requirements of the Charter.
[15] The appellants submit that the errors made by the Trial Judge on these two points caused him to come to an erroneous result in dismissing their Charter claims. I do not agree. The Trial Judge’s conclusions are based on reasoning that is separate from and independent of these two opinions. For the reasons that follow, I concur with the result arrived at by the Trial Judge that the Canadian Wheat Board Act does not violate the appellants’ claimed rights under the Charter and, alternatively, that if a violation were found, it would be demonstrably justified within the meaning of section 1.
THE SUBSECTION 15(1) COMPLAINT
[16] Subsection 15(1) of the Charter provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[17] The appellants contend that the compulsory pooling system violates subsection 15(1) because it discriminates against:
… farmers in the designated area who are subjected to the CWB monopoly, being farmers producing wheat or barley for:
(a) export trade,
(b) domestic human consumption, or
(c) interprovincial trade as feed outside the designated area
as compared to farmers outside the designated area who are not subject to the CWB monopoly.
[18] They say that for purposes of subsection 15(1), their analogous ground of discrimination is geography; that the compulsory pooling system under the Canadian Wheat Board Act discriminates against them on the basis of geography, i.e. their place of residence and production of wheat and barley within the designated area.
[19] It is not necessary to conduct a thorough subsection 15(1) analysis in this case because, in my view, the appellants have simply not demonstrated a cognizable analogous ground.
[20] In Corbiere v. Canada (Minister of Indian and Northern Affairs),[16] McLachlin J. (as she then was) and Bastarache J. summarized the approach to be taken in identifying analogous grounds. At paragraph 13 [pages 219-220], they stated:
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15—race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics which too often have served as illegitimate and demeaning proxies for merit-based decision making. [Emphasis added.]
[21] The question is whether the appellants’ residence and location of their farms within the designated area is an immutable characteristic like race, or a constructively immutable characteristic like religion? For example, is there evidence that individuals who reside in and whose farms are located in the designated area, constitute a discrete and insular minority or a group that has historically been disadvantaged or discriminated against? Clearly, residence and location of a farm within the designated area is not an immutable characteristic. Is it a constructively immutable one?
[22] No authorities have identified place of residence as an analogous ground. To be sure, place of residence has not been ruled out (see R. v. Turpin).[17] However, in Corbiere, supra, the Supreme Court has signalled that residence, in the generalized sense, will not easily be recognized as an analogous ground. The majority in Corbiere, supra, accepted L’Heureux-Dubé J.’s conclusion in her concurring reasons that “off-reserve band member status” which the majority characterized as “Aboriginality-residence”, is an analogous ground. However, the majority also added that this finding is not to be interpreted as a finding that “ordinary residence” is an analogous ground. At paragraphs 14 and 15 [page 220], they stated:
L’Heureux-Dubé J. ultimately concludes that “Aboriginality-residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. We agree. L’Heureux-Dubé J.’s discussion makes clear that the distinction goes to a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band members only at great cost, if at all.
Two brief comments on this new analogous ground are warranted. First, reserve status should not be confused with residence. The ordinary “residence” decisions faced by the average Canadians should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible. The reality of their situation is unique and complex. Thus, no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground. [Emphasis added.]
[23] Corbiere implies that residence must be linked to something else that is fundamental to one’s identity, that is immutable, or is at least constructively immutable. Thus, it is insufficient for purposes of identifying an analogous ground that the location of an individual’s residence and farm is within the designated area or, indeed, at any place in Canada. Something more is needed.
[24] For purposes of argument, I will accept that there may be cultural and social aspects to being a farmer that may form part of a person’s identity. I will also accept that residence on a farm might, by some, be considered to be changeable only at unacceptable cost to personal identity. However, the appellants’ argument is not about being a farmer and its impact on their identity. Rather, their complaint is about the effect of residing and farming in the designated area. Indeed, at paragraph 225 of their factum, they state:
In the case at bar, the appellants are not singled out because they are farmers. They are singled out because they farm in the designated area and must grow barley or wheat. The analogous ground therefore is geography, the part of Canada where the appellants farm. [Emphasis in original.]
[25] The effect upon the individual of whether one’s farm is located within or outside the designated area, i.e. whether there is or is not a requirement to sell wheat and barley to the Canadian Wheat Board, is not linked to the essential factors of dignity or personal identity that subsection 15(1) is intended to protect. Absent any factors such as the vulnerability associated with being a member of a discrete and insular minority, or a historical pattern of discrimination or prejudice, subsection 15(1) is not intended to protect individuals from all perceived disadvantages incidental to where they live, even where the decision as to where to live might be influenced by factors beyond the individual’s control.
[26] There is no evidence that producers who reside and farm within the designated area are, by reason of their location, members of a discrete and insular minority or have been historically subjected to discrimination or prejudice. The appellants invoke “western alienation”. However, even accepting this phenomena, there must be some evidence of an historical pattern of discrimination against western Canadians, in order to establish that living in or farming in western Canada constitutes an analogous ground. The appellants have produced no such evidence. Their argument is based only on a very general assertion:
Canadian history is checkered with instances of the national government treating the western provinces and northern territories differently and less favourably than other parts of the country. Sometimes there have been valid historical reasons for this; sometimes not. “Western alienation” and “northern alienation” have roots in real and perceived stereotypes, resulting in paternalism and discrimination. Each case must be decided on its own facts, of course, but it is the appellants’ submission that in the case of the CWB Act, such differential treatment based upon geography is no longer acceptable, and is unconstitutional.
In oral argument they referred to political disadvantage or weakness.
[27] The fact that the appellants concede that “Each case must be decided on its own facts” suggests that even they do not consider that western alienation is a constant marker of an analogous ground. In any event, the general assertion of western alienation or political disadvantage is insufficient to prove an historical pattern of discrimination in the Charter sense against western Canadians and in particular, producers of wheat and barley in the designated area.
[28] In the context of identifying an analogous ground of discrimination, it is usually necessary to go beyond the subject-matter of the appellants’ Charter claim at issue. To find a discrete or insular minority or an historical pattern of discrimination, it is usually necessary to search for disadvantage, apart from, and independent of, the particular legal distinction being challenged.[18] The appellants say that the requirement to sell their wheat and barley to the Canadian Wheat Board affects their dignity and self-worth. It deprives them of the opportunity to engage in the free marketing of their products, which they say “strikes at the heart of their livelihood”. They contend that the ability to market one’s crop is essential to the realization of one’s identity as a “farmer” as opposed to simply a “grower”. However, the appellants have pointed to no evidence of producers of wheat and barley in the designated area being subject to disadvantage apart from the complaint about compulsory pooling in the Canadian Wheat Board Act.
[29] The appellants ask the Court to consider the comments of La Forest J. in Godbout v. Longueuil (City)[19] wherein he addressed the notion of residence in the context of section 7 of the Charter. He concluded at page 894 that:
… choosing where to live is a fundamentally personal endeavour, implicating the very essence of what each individual values in ordering his or her private affairs; that is, the kinds of considerations I have mentioned here serve to highlight the inherently private character of deciding where to maintain one’s home. In my view, the state ought not to be permitted to interfere in the private decision-making process, absent compelling reasons for doing so.
In Godbout, La Forest J. was writing for himself and two other members of the Supreme Court in deciding that a municipal resolution requiring city employees to reside within the city’s boundaries violated section 7 of the Canadian Charter of Rights and Freedoms. However, a majority of the Court expressly declined to make a section 7 determination, preferring in the circumstances to dismiss the appeal solely on the basis of the Quebec Charter of Human Rights and Freedoms.[20]
[30] The appellants argue that the statement of La Forest J. in Godbout assists their case on the basis that choosing to live as a farmer in a particular area is “hardly less significant than choosing which municipality a person is going to live in”,[21] and that they should not be penalized for the choice they have made.
[31] With respect to the opinion of La Forest J., in the face of the views expressed by McLachlin and Bastarache JJ. at paragraph 15 [page 220] in Corbiere that
… no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground,
I cannot not make use of the minority finding in respect of section 7 of the Charter in Godbout as a basis for deciding that residence is an analogous ground under subsection 15(1).
[32] For these reasons, I am unable to find that geography in general, or more specifically, that the residence and location of producers whose farms produce wheat and barley in the designated area, constitutes an analogous ground of discrimination. That being the case, it is unnecessary to go further. The subsection 15(1) claim must fail.
THE PARAGRAPH 2(d) COMPLAINT
Characterizing the Complaint
[33] Paragraph 2(d) provides:
2. Everyone has the following fundamental freedoms:
…
(d) freedom of association.
The appellants say that pooled marketing, as required by the Canadian Wheat Board Act, breaches their guarantee to freedom of association in that in order to market their wheat or barley:
(a) they are compelled to associate with the Canadian Wheat Board;
(b) they are compelled to associate with all other producers of wheat and barley in the designated area; and
(c) they are prohibited from voluntarily associating with other producers of their own choosing.
[34] It is immediately apparent that their first two complaints do not involve the freedom to associate but rather, the freedom not to associate. In other words, the complaint is that they are, contrary to their claimed right under paragraph 2(d), forced to market their wheat and barley in association with the Canadian Wheat Board and all other producers of wheat and barley in the designated area when they would prefer to do such marketing individually. Their third complaint is the more traditional one; that is, that they are prevented from voluntarily associating with other producers in the designated area for the purpose of marketing wheat and barley.
[35] It will be convenient to deal with the first two complaints together, as they essentially amount to one complaint.
The Freedom Not to Associate
[36] The question of whether paragraph 2(d) protects a right not to associate has not been definitively determined by the Supreme Court. However, in speaking for three of seven judges in Lavigne v. Ontario Public Service Employees Union,[22] La Forest J. indeed found that freedom from compelled association is recognized under paragraph 2(d). At pages 317-318, he stated:
The question, then, is whether the protection of this community interest and the antecedent individual interest requires that freedom from compelled association be recognized under s. 2(d) of the Charter.
In my view, the answer is clearly yes. Forced association will stifle the individual’s potential for self-fulfilment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships’ conviction and free choice. Instead, it can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community…. Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals.
[37] McLachlin J., for herself only, made no express finding on the point, but indicated an inclination that in some circumstances, forced association might breach paragraph 2(d). At page 343, she stated:
The next question is whether s. 2(d) includes a right not to associate. While it is not necessary for my purposes to resolve that issue, I am inclined to the view that the interest being protected by s. 2(d) goes beyond being free from state-enforced isolation, as contended by the interveners OFL and CLC. In some circumstances, forced association is arguably as dissonant with self-actualization through associational activity as is forced expression.
[38] In the case at bar, the learned Trial Judge was of the view that paragraph 2(d) protected the right not to associate.[23]
[39] Based on the reasoning of La Forest J. and McLachlin J. in Lavigne, I accept that in some circumstances, paragraph 2(d) may protect a right not to associate.
Distinguishing Between an Activity and the Associational Aspects of the Activity
[40] For purposes of this appeal, the most relevant authority on the right of association under paragraph 2(d) is Canadian Egg Marketing Agency v. Richardson,[24] (CEMA). Under relevant regulations pursuant to the federal Farm Products Agencies Act,[25] no eggs produced in the Northwest Territories could be lawfully marketed in interprovincial or export trade. Producers in the Northwest Territories challenged the constitutionality of the federal marketing legislation. One ground was that the scheme violated paragraph 2(d) of the Charter.
[41] Iacobucci and Bastarache JJ., for the majority, found no breach of paragraph 2(d). Pivotal to their conclusion was their finding that freedom of association protects only the associational aspects of the activities and not the activities themselves. At paragraph 105 [page 228], they stated:
However, underlying the cases on s. 2(d) is the proposition that freedom of association protects only the associational aspect of activities, not the activity itself. If the activity is to be protected by the Constitution, that protection must be found elsewhere than in s. 2(d).
[42] Counsel for the appellants concedes that if what is at issue is an activity, paragraph 2(d) does not assist them. He argues that it is not the activity of marketing wheat or barley which is at issue, but rather the forced associations with the Canadian Wheat Board and all other producers of wheat and barley that infringes the appellants’ rights. He says that the Canadian Wheat Board Act imposes these associations upon the appellants, for in the absence of the legislation, it would not be unlawful for individual producers to market wheat or barley in interprovincial or export trade. It is the requirement of the Act that producers in the designated area associate with the Board and each other that makes their marketing of wheat or barley individually unlawful. Thus, it is the associational aspects of the Canadian Wheat Board marketing regime that is at issue and, therefore, paragraph 2(d) is engaged.
[43] In my opinion, while the Canadian Wheat Board Act makes it unlawful to market wheat and barley grown in the designated area outside the Canadian Wheat Board regulatory scheme, such a legislated prohibition cannot be used as a springboard to constitutionalize the foundational activity, i.e. the marketing of wheat and barley, under the guise of paragraph 2(d).
[44] At paragraph 113 [page 232] of their reasons in CEMA, Iacobucci and Bastarache JJ. stated:
… s. 2(d) does not create a right to do in association what is unlawful for an individual to do …. Thus, whether it is said that the activity is foundational to the association or that the association is foundational to the activity, it comes to the same thing: what is being attempted is to bring under constitutional protection activities that are not constitutionally protected when done by individuals, simply by virtue of the fact that individuals have associated for the purpose of carrying on these activities.
[45] As the CEMA decision reaffirms, the corollary of the Charter-based right to freedom to conduct an activity in association is that there is a Charter-based right to conduct the activity individually. Although the argument in CEMA was concerned with the positive freedom to associate, in my view this corollary is equally applicable in the context of a negative freedom from association; if one seeks freedom from a compelled association under paragraph 2(d), there must be some interest at stake which is recognized by the Charter elsewhere than in paragraph 2(d). It is not sufficient to say that in the absence of legally compelled association, an activity would be lawful if done individually. For the associational argument to succeed, the individual activity precluded by the legally compelled association must be one that is protected by the Charter.
[46] For example, in Lavigne, supra, McLachlin J. characterized the interest at stake in that case as being:
… the individual’s interest in being free from enforced association with ideas and values to which he or she does not voluntarily subscribe. For the purposes of this case, I shall refer to this as the interest in freedom from coerced ideological conformity.[26]
Freedom from coerced ideological conformity, as described by McLachlin J., is recognizable in the Charter under paragraph 2(a), the freedom of conscience and religion, and paragraph 2(b), the freedom of thought, belief, opinion and expression.
[47] In the present appeal, there is no question that the appellants are compelled to sell their wheat and barley to the Canadian Wheat Board and to associate with all other producers of wheat and barley in the designated area. It is apparent that the interest the appellants seek to protect is the freedom to sell their wheat and barley under arrangements of their own choosing. Whether this is seen negatively as a freedom from compelled association or positively as a freedom to sell their wheat and barley on their own terms, the appellants must demonstrate how the Charter, beyond paragraph 2(d) itself, protects such an interest.
[48] In this respect, it is necessary to observe that not all activities performed by individuals are constitutionally protected. In CEMA, Iacobucci and Bastarache JJ. cite with approval the words of McIntyre J. in Reference Re Public Service Employee Relations Act (Alta.) [Alberta Reference]:[27]
The Charter does not give, nor was it ever intended to give, constitutional protection to all the acts of an individual which are essential to his or her personal goals or objectives ….
…
For obvious reasons, the Charter does not give constitutional protection to all activities performed by individuals. There is, for instance, no Charter protection for the ownership of property, for general commercial activity, or for a host of other lawful activities …. There is simply no justification for according Charter protection to an activity merely because it is performed by more than one person.
In citing Le Dain J. in the same judgment, they reaffirmed that not all lawful acts of individuals are protected by the Charter. They said [at page 230]:
He [Le Dain J.] commented further that the question was: whether [the] particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection are sought—the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer— are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring specialized expertise.
[49] Iacobucci and Bastarache JJ. acknowledged that no trade or profession can be exercised entirely by oneself. However, they explicitly rejected the proposition that all commercial relationships be constitutionalized under the rubric of freedom of association. At paragraph 109 [pages 230-231], they stated:
It cannot be said that freedom of contract and trade is a modern notion. Nevertheless, the regulation of trade, and in particular, trade in agricultural commodities, is an exercise that involves a balance of competing interests that requires specialized expertise. Yet the effect of the respondents’ submissions would be to constitutionalize all commercial relationships under the rubric of freedom of association. There is no trade or profession that can be exercised entirely by oneself. Following the reasoning of the Court of Appeal, all forms of government regulation of the economy that affect the ability of individuals to trade would, at least prima facie, infringe s. 2(d) and require justification under s. 1. As William Shores noted in a comment on the Court of Appeal’s decision in the case at bar:
An interpretation of the freedom of association that protects trade expands the role of the Charter in protecting commercial activity far beyond anything recognized by the courts to date. Such an interpretation will provide a sharp weapon for attack on a wide range of regulatory systems.
(“Walking Onto an Unfamiliar Playing Field—Expanding the Freedom of Association to Cover Trade” (1996), 6 Reid’s Administrative Law 1.)
Further, on this point that not all activities are constitutionally protected simply because they are undertaken in association, they cited Dickson C.J. in the Alberta Reference where, at page 366, he stated that the freedom to associate in paragraph 2(d) is:
… not an unlimited constitutional licence for all group activity. The mere fact that an activity is capable of being carried out by several people together, as well as individually, does not mean that the activity acquires constitutional protection from legislative prohibition or regulation.
[50] Finally [at paragraph 112, page 232], in adopting Sopinka J.’s synthesis of four propositions from the Alberta Reference in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner),[28] namely:
… first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.
they find that the CEMA case falls squarely within the second of the four propositions.
[51] They continued [at paragraph 113, page 232]:
Moreover, the converse of the fourth proposition, which is that s. 2(d) does not create a right to do in association what is unlawful for an individual to do, so applies. Thus, whether it is said that the activity is foundational to the association or that the association is foundational to the activity, it comes to the same thing: what is being attempted is to bring under constitutional protection activities that are not constitutionally protected when done by individuals, simply by virtue of the fact that individuals have associated for the purpose of carrying on these activities.
[52] In my respectful opinion, this analysis is dispositive of the paragraph 2(d) claim based on the freedom not to associate in the present case. What the appellants have attempted to do is to use paragraph 2(d) and their freedom not to associate argument to constitutionalize the activity of marketing wheat and barley interprovincially and in export trade individually. Even if paragraph 2(d) contemplates a right not to associate in some circumstances, that right cannot be used as a springboard to create a constitutional right to conduct an activity individually when there is no other Charter basis for protecting the activity.
[53] This leaves the appellants’ complaint that contrary to paragraph 2(d), they are prohibited from voluntarily associating with other producers of their own choice to sell their wheat and barley. The simple answer is that the appellants cannot do in voluntary association what they are prohibited from doing individually. Since the individual activity, the marketing of wheat and barley, is not constitutionally protected, there is no constitutional basis for arguing that they should be able to sell their wheat and barley in voluntary association with others.
[54] For these reasons, the appellants’ paragraph 2(d) challenge must be rejected.
THE SECTION 6 COMPLAINT
[55] Section 6 of the Charter provides:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
The Appellants’ Complaint
[56] The appellants say that:
(a) the requirement to sell wheat and barley to the Canadian Wheat Board breaches their right to pursue the gaining of a livelihood in the provinces in which they reside and produce wheat and barley;
(b) the Canadian Wheat Board Act is not a law of general application in a province; and
(c) in any event, the Act discriminates primarily on the basis of province of present residence.
The Supreme Court’s Observations on this case in CEMA
[57] Muldoon J. found that the Canadian Wheat Board Act did not breach section 6 of the Charter. His analysis focused on paragraph 6(2)(b) and predates the decision of the Supreme Court of Canada in CEMA in which the majority of that Court had occasion to comment on section 6 in the context of this case. Although the comments of the Supreme Court are obiter, they cannot be ignored.
[58] I interpret the reasoning of Iacobucci and Bastarache JJ. in CEMA, pertaining to the case at bar, as follows:
1. On the facts of this case, paragraphs 6(2)(b) and 6(3)(a) of the Charter are engaged.
To be clear, the mobility factor in pursuit of a livelihood was engaged in Archibald because producers in the designated area would be treated differently from producers in the non-designated area in attempting to tender the fruit of their labour in any province in Canada. [At paragraph 84, page 214.]
2. It was an error for Muldoon J. to examine paragraph 6(2)(b) in isolation; rather it is necessary to examine paragraphs 6(2)(b) and 6(3)(a) together.
This Court has recognized that the mobility right articulated in s. 6(2)(b) must be read in light of the discrimination provision contained in s. 6(3)(a) or else be manifestly too broad, given the heading “Mobility Rights”. Once this interpretive interdependence is recognized, it is more coherent to read the two sections together as defining a single right, rather than one right which is externally “saved” by another …. The discrimination provision should be fully integrated into an understanding of the purpose and scope of the mobility right described in s. 6(2)(b). [At paragraph 54, page 192.]
Muldoon J. found no violation of s. 6(2)(b) on the grounds that first, the degree of economic disadvantage was not sufficient to trigger s. 6(2)(b), and second that even if s. 6(2)(b) had been triggered because of some economic disadvantage, it was not sufficient to affect the mobility right which is the essence of s. 6. With respect, this reasoning reflects the danger of examining the right contained in s. 6(2)(b) in isolation from s. 6(3)(a). Together those sections make clear that legislation which discriminates primarily on the basis of residence in the pursuit of a livelihood is a violation of the mobility right, regardless of the magnitude of that impact. [At Paragraph 85, pages 214-215.]
3. The magnitude of economic disadvantage is not a matter for consideration in the section 6 analysis but is better left to section 1.
Whether the impact is so negligible that it does not warrant the protection of s. 6 is a matter better left to the justificatory analysis under s. 1. [At paragraph 85, page 215.]
4. However, an assessment of the impact of the impugned legislative distinction does have an important role to play in determining whether the ostensible purposes of the legislation are valid under paragraph 6(3)(a), i.e. whether or not laws or practices in force in a province discriminate among persons primarily on the basis of province of present or previous residence.
However, an assessment of the impact of the impugned legislative distinction does have an important role to play in determining whether the ostensible purposes of the legislation are valid. [At paragraph 86, page 215.]
[59] I infer from the comments of Iacobucci and Bastarache JJ. that while section 6 was engaged in this case, they were satisfied the Canadian Wheat Board Act was a law of general application and did not discriminate primarily on the basis of province of present or past residence. They stated at paragraph 87 [pages 215-216]:
When the impact of the laws applicable to a producer in the designated area is compared with its impact on a producer outside the designated area, it appears that the absence of a “great wall” arises from the fact that there are objective reasons for distinguishing the two areas, other than residential status.
Engaging the Section 6 Right
[60] In order to address the arguments made before this Court on appeal, I will add the following comments. To engage the right protected by paragraph 6(2)(b) as modified by paragraph 6(3)(a), the threshold is set at a low level. While one might not, at first blush, consider the requirement to sell wheat and barley to the Canadian Wheat Board as affecting a person’s right to pursue the gaining of a livelihood in any province, it is the difference in treatment in respect of the sale of wheat and barley between producers within and outside the designated area that triggers the mobility factor in pursuit of a livelihood. In CEMA, the majority stated at paragraph 84 [page 214]:
The discriminatory “laws … in force in the province” were the federal laws in force in the prairie provinces which, by their specific terms, distinguished between producers of origin provinces in setting the terms upon which they could make their goods available in destination provinces.
Law of General Application in a Province
[61] Section 6 having been triggered, it is necessary to determine whether the Canadian Wheat Board Act is a law of general application in force in a province and, if so, whether it discriminates among persons primarily on the basis of province of present or previous residence.
[62] The words of paragraph 6(3)(a) might be interpreted as suggesting that the laws or practices of general application in force in the province are provincial laws or practices. Indeed, the right in subsection 6(2) is to move and take up residence and to pursue the gaining of a livelihood “in any province”. The laws or practices that might be thought to restrain those rights would be laws or practices enacted or imposed by a province to favour its own residents. However, this is not to say that federal laws or practices might not also have the effect of creating differences in the conditions for the pursuit of a livelihood in different parts of Canada. As explained by Iacobucci and Bastarache JJ. at paragraphs 61 [page 198] and 75 [page 207] of CEMA:
Federal legislation, or cooperative federal-provincial legislative schemes, may also apply only in some provinces and, thus, create variable conditions for the pursuit of a livelihood in different provinces (Prince Edward Island Potato Marketing Board v. H.B. Willis Inc., [1952] 2 S.C.R. 392).
…
Section 6(3)(a) applies to “laws or practices of general application in force in a province”, which comprehend either federal or provincial laws in force in that province.
I accept that the Canadian Wheat Board Act is a law to which paragraph 6(3)(a) could apply.
[63] The Act is a federal law of general application in force throughout the provinces of Manitoba, Saskatchewan and Alberta (see CEMA, paragraph 75 [page 207]). However, it only applies to the Peace River District and Creston-Wynndel Areas of British Columbia.[29] Does this mean that the Canadian Wheat Board Act is not a law of general application in British Columbia because it does not apply uniformly throughout the entire province? The Supreme Court would appear not to think so.
[64] In commenting on the case at bar, Iacobucci and Bastarache JJ. expressly note at paragraphs 84 [page 214] and 87 [page 216] the limited geographical application of the Canadian Wheat Board Act in British Columbia:
In Archibald v. Canada, [1997] 3 F.C. 335T.D.), the Canadian Wheat Board Act, R.S.C., 1985, c. C-24, which applies only to Manitoba, Alberta, Saskatchewan, and a part of British Columbia, was challenged as a violation of s. 6(2)(b), s. 15(1) and s. 2(d) of the Charter.
…
The fact that the designated area does not coincide precisely with provincial boundaries per se, and that the area is characterized by large grain crops which distinguishes it from other areas of Canada, is further evidence that provincial boundaries are merely being used as a reasonably accurate marker for an economic reality which generally exists in those provinces. [Emphasis added.]
[65] Notwithstanding that the Act did not apply throughout British Columbia, the Supreme Court did not consider itself precluded from assessing whether the Act discriminated primarily on the basis of the province of present or previous residence, in so far as the province of British Columbia was concerned. (See paragraph 59 above.) Moreover, the fact that the application of the Act did not coincide precisely with provincial boundaries was seen as further evidence that the Act was not one that discriminated primarily on the basis of province of present or previous residence. (See paragraph 64 above.)
[66] There are other reasons why, in the context of paragraph 6(3)(a), a law of general application need not be applicable geographically throughout a province. It is readily apparent that laws enacted by municipalities cannot be applicable outside the boundaries of the municipality. Yet such laws are surely subject to the mobility provisions of section 6, even though they are not laws of general application throughout a province.
[67] By the same token, MacKinnon v. Canada (Fisheries and Oceans)[30] concerning federal licensing policies in the major fisheries management zones on the Atlantic coast points out that laws or practices will sometimes be made to apply to specified geographic areas not necessarily conforming to provincial boundaries because uniformity throughout a province or according to provincial boundaries as such may not be relevant to the law or practice.[31]
[68] I am satisfied that the Canadian Wheat Board Act is a law of general application in the geographic area to which it is considered relevant, the prairie provinces and specific grain-growing areas in British Columbia in which it was considered that the volume of wheat and barley production and the transportation and elevator systems which are fundamental to the operation of the Canadian Wheat Board marketing scheme are present.
[69] I am aware of the test provided in the Supreme Court decision in Kruger et al. v. The Queen,[32] wherein Dickson J. (as he then was) stated the first branch of a two-stage inquiry to see if a law was one of “general application” as follows:
It is necessary to look first to the territorial reach of the Act. If the Act does not extend uniformly throughout the territory, the inquiry is at an end and the question is answered in the negative.
[70] I further acknowledge that the Kruger test has been applied by some courts[33] (including the Federal Court of Appeal)[34] in the context of “general application” in paragraph 6(3)(a) of the Charter. However, in view of CEMA, the requirement of territorial uniformity as described in Kruger, an appeal in which the Supreme Court was interpreting a provision of the Indian Act[35] concerning the applicability of provincial laws to Indians, is not applicable in interpreting “laws or practices of general application … in a province” in paragraph 6(3)(a) of the Charter. The Supreme Court decided Kruger before the introduction of the Charter, and thus could not have considered or drawn any contextual comparisons between the wording concerning laws of general application used in section 88 of the Indian Act and paragraph 6(3)(a) of the Charter. In commenting on this case in CEMA, the Supreme Court did not refer to the Kruger test.
[71] Even if the Act were not considered to be a law of general application in British Columbia, it is apparent that the appellants do not seek to challenge the operation of the Act in that province. Indeed, none of the individual appellants resides in or produces wheat or barley in British Columbia. The appellants’ case is that the Act affects their right to pursue the gaining of a livelihood in Alberta, Saskatchewan and Manitoba. In those provinces, there is no question that the Canadian Wheat Board Act is a law of general application in force throughout each province where the appellants reside and pursue the gaining of a livelihood.
Discrimination Primarily on the Basis of Residence
[72] Is the Canadian Wheat Board Act a law that discriminates among persons primarily on the basis of present or previous residence? There is no allegation in this case that the Act discriminates on account of province of previous residence. The only issue is whether it discriminates primarily on the basis of present residence. Accepting that the existence of the Act creates a different marketing scheme for wheat and barley grown in the designated area from that grown outside the designated area, I am not satisfied that such distinction constitutes discrimination primarily on the basis of province of present residence.
[73] With specific reference to the case at bar, the Supreme Court in CEMA has said that there are objective reasons for distinguishing between production of wheat and barley within and outside the designated area. At paragraph 87 [page 216], Iacobucci and Bastarache JJ. stated:
The vast majority of grain is produced within the designated area, and that volume of production is precisely what creates the fluctuations in price which the Wheat Board scheme was intended to mitigate. To the extent that producers outside of the designated area may be favoured in some circumstances by having more control over the marketing of their grain, they are also disfavoured because they tend to grow less than their western counterparts and have little or no influence on the determination of the price of their grain. Western producers tend to have more at stake in the marketing of their grain, which means that the reasons for the mitigating effect of the Wheat Board scheme are greater in their case. In that sense, it is quite appropriate to observe that there is no “great wall” between individuals within and outside the designated areas.
As found by Iacobucci and Bastarache JJ., that the designated area is characterized by large grain-growing regions which distinguish it from other areas of Canada is evidence that targeting the Wheat Board’s mandate and activities to the designated area recognizes an economic reality. There are thus objective reasons for the operation of the Canadian Wheat Board marketing scheme being limited to the designated area.
[74] I conclude that the Canadian Wheat Board Act is not a law that discriminates primarily on the basis of province of present or previous residence.
[75] The section 6 claim must be dismissed.
SECTION 1
[76] Although he did not find that the Canadian Wheat Board Act violated the Charter on any of the grounds alleged by the appellants, Muldoon J. conducted an extensive analysis under section 1 of the Charter, applying the well-known tests laid out in The Queen v. Oakes.[36] This Court will review the findings of the Trial Judge in the interest of providing a complete analysis of the legal issues which were argued on appeal.
The Findings of the Trial Judge
[77] As to whether the legislation fulfilled a pressing and substantial objective, the Trial Judge reviewed the history of the Canadian Wheat Board commencing with its initial incarnation in 1919, through dramatically falling prices and surpluses of grain in the 1930s, the strategic importance of a stable wheat supply during the years of the Second World War, subsequent supply agreements with the United Kingdom, obligations under the International Wheat Agreements of the 1950s and 1960s, and when the Canadian Wheat Board legislation was renewed at intervals between 1953 and 1967, the importance, in the view of Parliament, of the stabilization of prices and the orderly marketing of grain. The marketing of western Canadian grain was a matter of national concern because of the significance of the grain industry to the national economy. Muldoon J. [at paragraph 157, page 423] characterized the objective of the legislation as being “to secure the orderly marketing, in interprovincial and export trade, of grain grown in Canada” and in his view, the pressing and substantial part of the Oakes test was satisfied.
[78] The Trial Judge had no difficulty accepting that there was a rational connection between the objective of orderly marketing of grain and the means set forth in the Canadian Wheat Board Act to achieve that objective.
[79] In his minimal impairment analysis, the Trial Judge noted that the appellants did not ask that the Canadian Wheat Board be dismantled; rather they only asked that they not be forced to sell their wheat and barley to it. He characterized the issue as being whether keeping the Canadian Wheat Board as a non-voluntary pool could be justified. He conducted a broad review of the evidence and concluded that the Canadian Wheat Board would not be viable in a dual market, i.e. where farmers could market their wheat and barley either through the Canadian Wheat Board or on their own, individually or in groups. He based his conclusion on the evidence of Dr. Murray Fulton, whom he considered to be “the most credible, if not sole, authority on co-operatives and pooling” [at paragraph 168, page 427]. The Trial Judge quoted at paragraph 169 [page 428] from a study done by Dr. Fulton which stated:
The reason why a completely voluntary pool cannot operate alongside a cash market is a direct function of pooling. Pooling is a system whereby high and low prices—prices received at different times of the crop year and in deferent [sic] markets—are averaged in some weighted fashion to give the pooled price. The consequence of the averaging process is that when market prices are rising, the pool price will generally lag behind. The lower price of the pool will result in farmers delivering to the cash market. In contrast, when prices are falling, the pool price will generally be above the cash price. This will provide an incentive for producers to deliver to the pool. The consequence of this behaviour is that the voluntary pool experiences either relatively small volumes being pooled or substantial losses in the pool if guaranteed initial prices are present.
[80] He then considered the appellants’ evidence of other dual commodity markets, but preferred Dr. Fulton’s rebuttal that the conditions of the western Canadian wheat and barley markets were different. He further referred at paragraph 174 [page 430] to the “free rider problem”:
The final major factor which would cripple a voluntary pooling agency for wheat and barley in western Canada is that the pool could not avoid deficits. This because of the “free rider problem”. The only way to avoid a deficit is by not offering an initial price. Consequently there is little incentive to deliver grain to the pool. To attract delivery, the pool could offer a high initial price. Woe to the pool should the market price be lower than divined! A deficit would ensue (Exhibit 73, at page 5).
[81] The learned Trial Judge then referred to evidence that a pooling system in an open market has not been successful in the United States and was not successful in Canada between 1935 and 1943. He also considered and rejected a “contractual pool” because of the reluctance of producers to deliver more than a portion of their crop, crippling the Wheat Board in its marketing of wheat and barley and the difficulties produced by contract default and associated costs of recovery.
[82] For these reasons, the Trial Judge concluded that a Canadian Wheat Board monopoly in the designated area was essential, and that there were no viable alternatives which would permit the marketing of wheat and barley by producers in the designated area outside the Canadian Wheat Board marketing scheme.
[83] In his proportionality analysis, Muldoon J. recognized that the pooling required by the Canadian Wheat Board Act did adversely affect the appellants in that they were not always rewarded for producing a high quality product, that they were impeded in maximizing their operations’ potential, that they did not always have immediate access to lucrative markets, that cash flow could be adversely affected and that they were subjected to the pooling of costs which, in some circumstances, was unfair and adversely affected their profitability.
[84] On the other hand, the evidence did not show that the appellants’ operations were being crippled or that they were being driven into bankruptcy as a result of compulsory pooling, although there was evidence of “frustration with an inflexible system”.
[85] For the learned Trial Judge, what tipped the balance in the proportionality analysis in favour of the legislation was:
… that the government has established, on a balance of probabilities, that the interests of all western Canadian farmers, and the potential impact on all Canadians, are treated with a view to alleviate what has proved to be a significant problem, i.e. the dramatic effects of the open market.[37]
Thus, the Trial Judge concluded that the deleterious effects on the appellants’ rights were outweighed by the salutary effects of the orderly marketing of wheat and barley under the Canadian Wheat Board.
Additional Arguments Before this Court
Pressing and Substantial
[86] In their written argument, the appellants argue that the Trial Judge wrongly identified price stabilization and orderly marketing as an objective of the scheme. They say that the imposition of a monopoly in the Wheat Board was not “for the orderly marketing of grain”, and more specifically, price stability, but was primarily motivated by objectives tied to exigencies such as supply requirements during World War II, the need to fulfil supply agreements with the U.K. in the period immediately after World War II, and later, to meet commitments made by the government under the International Wheat Agreements (which have since lapsed). This succession of exigencies reflects objectives for the Wheat Board legislation that are no longer pressing and substantial.
[87] In oral argument, the appellants conceded that orderly marketing was an objective of the Canadian Wheat Board legislation of 1967. However, the appellants seem to argue that price stability was not an objective of the Act. They also argued that the Trial Judge improperly ignored the impact of the legislation on the human dignity of those producers who would prefer to market their wheat and barley unconstrained by the Canadian Wheat Board monopoly.
[88] A review of the reasons of the learned Trial Judge demonstrates that he took all of these factors into account. While it is true that the legislation limits entrepreneurial opportunities to producers, that is an issue for consideration in the proportionality analysis.
[89] I find no error in the pressing and substantial analysis of the learned Trial Judge.
Rational Connection
[90] In oral argument, the appellants conceded that if the objectives of the legislation were found to be the orderly marketing of grain and price stability, there was a rational connection between the objectives of the Canadian Wheat Board Act and the means employed by the Act to achieve those objectives.
Minimal Impairment
[91] The appellants submit the Wheat Board legislation is a total, rather than minimal, impairment of their rights to sell their wheat and barley on their own terms. The appellants say that the learned Trial Judge failed to appreciate the specific rights of the appellants that they argue were breached and, therefore, did not properly analyse whether they were minimally impaired. They also argued that he failed to properly consider the alternatives of dual marketing and longer term contracts of supply between producers and the Canadian Wheat Board.
[92] The issue here is, whether the total monopoly of the Canadian Wheat Board over the marketing of wheat and barley grown in the designated area impairs the rights of the appellants no more than is reasonably necessary to achieve the objectives of the legislation,[38] or whether some lesser form of control would be possible.
[93] There was extensive evidence before the Trial Judge. He preferred that of Dr. Fulton. Dr. Fulton’s evidence rejected the dual marketing option and addressed difficulties with contractual supply agreements between producers and the Board. Irrespective of the term of such contracts, Dr. Fulton’s evidence was that they led to default and the associated costs of recovery. It was open to the Trial Judge to accept Dr. Fulton’s evidence and to conclude that there was no viable alternative that would impair any alleged Charter rights of the appellants less, than in accordance with the Canadian Wheat Board legislation.
[94] In RJR-MacDonald, supra [note 11], McLachlin J. (as she then was) stated at paragraph 141 [pages 334-335]:
… while appellate courts are not bound by the trial judge’s findings in respect of social science evidence, they should remain sensitive to the fact that the trial judge has had the advantage of hearing competing expert testimony firsthand. The trial judge’s findings with respect to the credibility of certain witnesses may be useful when the appeal court reviews the record.
The Trial Judge found at paragraph 168 [page 427]:
Of all of the agronomical experts proffered by both sides, Dr. Fulton was the most credible, if not sole, authority on co-operatives and pooling.
In reviewing the minimal impairment analysis of the Trial Judge and the record upon which it was based, I accept his credibility findings and the conclusions that he drew from the evidence that the Canadian Wheat Board would not be viable without a monopoly in respect of wheat and barley in the designated area. It follows that the dual market alternatives suggested by the appellants before this Court cannot be said to be “reasonable alternatives” to the Wheat Board monopoly in meeting the objectives of the Act.
[95] In RJR-MacDonald, McLachlin J. stated at paragraph 160 [pages 342-343]:
The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor the objective to infringement …. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.
[96] In this case, there does appear to be some tailoring in the legislation and the manner in which it has been applied by the government: the Board monopoly is restricted to wheat and barley and it applies only in the regions where those crops are most extensively grown. Furthermore, the Act and Regulations provides for the granting of licences for export[39] and interprovincial sales.[40] Producers can apply for these licenses to transport and sell wheat and barley themselves. There was evidence before the Trial Judge that the scheme is cumbersome and frustrating. Be that as it may, the government led evidence satisfactory to the Trial Judge to explain why a less intrusive and equally effective alternative was not available. I can see no basis for coming to a contrary conclusion to that of the learned Trial Judge on the issue of minimal impairment.
Proportionality of Effects
[97] The deleterious effects of the Canadian Wheat Board’s compulsory pooling system are numerous from the point of view of the appellants. They argue that producers are prevented from marketing their own wheat and barley in a manner which would permit them to optimize the return on their crops. They assert that the Wheat Board has not protected producers from low grain prices. While it is the Wheat Board’s exclusive marketing function which is at issue, the appellants argue that compulsory pooling affects just about every aspect of their farm operations. They also argue that the Wheat Board monopoly deprives them of the sense of entrepreneurship which they would otherwise enjoy as part of running their own farming businesses.
[98] The learned Trial Judge was attentive to those adverse effects alleged by the appellants, including the effect of denying them the right to exercise their entrepreneurial initiative. Against this, he balanced what Parliament considered to be a significant problem—the undesirable effects of an open market on the marketing of western wheat and barley.
[99] The Trial Judge found that the deleterious effects on the appellants’ rights were outweighed by the salutary effects of the orderly marketing of wheat and barley under the Canadian Wheat Board. He came to his conclusion with reference to the objectives of the Canadian Wheat Board Act and its salutary effects. I can see no error in the analysis of the Trial Judge with respect to his finding under the final branch of the Oakes test.
[100] I would add that there is also a good reason for the Court to adopt a deferential approach with respect to the proportionality of effects test. In legislating a Canadian Wheat Board monopoly in the designated area, Parliament is balancing competing interests—those of the producers in the designated area who support the Canadian Wheat Board and those who oppose it. While the appellants are of the view that the Canadian Wheat Board Act imposes deleterious effects upon them, other producers appear willing to forego the advantages of an open market for the benefits they see in the Canadian Wheat Board marketing their wheat and barley, arranging for transportation, and otherwise providing what they perceive are the benefits of receiving a pooled price for their crops. Parliament is in a better position to weigh the deleterious and advantageous effects of the Canadian Wheat Board monopoly than is the Court. I would thus accord Parliament significant deference in so far as the proportionality of effects test is concerned.
[101] The Trial Judge was critical of Supreme Court jurisprudence which he interpreted to require that only the original purpose of legislation was relevant for purposes of a section 1 analysis. Irrespective of the view he expressed, he relied on the purpose of the legislation when it was last re-enacted by Parliament in 1967. No issue arises from the learned Judge’s view expressed on this issue. Nor did the learned Judge’s comments with respect to section 91, class 2 of the Constitution Act, 1867, the federal trade and commerce power, affect the validity of his Oakes analysis.
[102] I agree with the Trial Judge that if any Charter rights of the appellants have been breached by any of the impugned provisions of the Canadian Wheat Board Act, the respondent has demonstrated that they constitute reasonable limits on those rights in a free and democratic society.
[103] I would take this opportunity to observe that in this case the appellants did not initially specify the provisions of the Canadian Wheat Board Act and Canadian Wheat Board Regulations that they alleged were unconstitutional. It was only after being requested to do so that they provided a list of impugned parts of the Act and Regulations that are indicated in Appendix A to these reasons. It is insufficient for a constitutional challenge to refer only to a concept or a process required by an enactment. The specific provisions being challenged must be specified.
DISPOSITION
[104] The appeal will be dismissed with costs.
Décary J.A.: I agree.
Sharlow J.A.: I agree.
APPENDIX A
Legislative provisions challenged
under paragraph 2(d), subsections 6(2)
and 6(3), or subsection 15(1) of the
Canadian Charter of Rights and Freedoms
1. The Canadian Wheat Board Act, R.S.C., 1985, c. C-24 (as in force on July 13, 1995)
INTERPRETATION (section 2)
subsection 2(1): “designated area”
“order”
“permit book”
“quota”
subsection 2(3)
subsection 2(4)
PART I—THE CANADIAN WHEAT BOARD (sections 3 to 22)
paragraph 17(3)(b): (This provision was subsequently repealed by S.C. 1998, c. 17, s. 9.)
section 20
section 21
PART II—CONTROL OF ELEVATORS AND RAILWAYS (sections 23 to 30)
all except section 29 [ss. 24 (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 6), 25 (as am. idem, s. 7)]
PART III—INTERPROVINCIAL AND EXPORT MARKETING OF WHEAT BY THE BOARD (sections 31 to 44)
all [ss. 32 (as am. by S.C. 1995, c. 31, s. 2), 33 (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 8; S.C. 1991, c. 33, s. 2; 1994, c. 39, s. 1; 1995, c. 31, s. 3), 33.1-33.5 (as enacted by S.C. 1994, c. 39, s. 2), 43 (as am. by R.S.C., 1985 (4th Supp.), c. 37, s. 32)]
PART IV—REGULATION OF INTERPROVIN-CIAL AND EXPORT TRADE IN WHEAT (sections 45 and 46)
section 45 (all references to “other than the Board” [as am. by S.C. 1994, c. 47, s. 48]
paragraph 46(d) (part) [as am. idem, s. 49]
PART VI—MARKETING PLANS (sections 48 to 60)
subsection 48(2)
section 55
section 57
subsection 60(1) (part)
PART VII—GENERAL (sections 61 to 77)
section 64
section 65
subsection 66(1) (part)
subsection 66(2)
section 67
paragraph 68(2)(b)
paragraph 72(2)(c) (part)
section 75
2. The Canadian Wheat Board Regulations, C.R.C., c. 397 (as in force on July 13, 1995)
section 2 “applicant”
“application”
“assignable acres” [as am. by SOR/93-390, s. 1]
sections 3, 4, 5, 6, 7, 8 (in respect of permit books) [s. 8 (as am. by SOR/84-408, s. 1)]
section 14 (in respect of licenses) (part)
sections 21, 22, 23, 24, 25 (in respect of assignable and quota acres) [ss. 21 (as am. by SOR/88-385, s. 1; 89-365, s. 1), 24 (as am. by SOR/93-390, s. 8)]
[1] [1997] 3 F.C. 335 (T.D.).
[2] R.S.C., 1985, c. C-24.
[3] Being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II No. 44].
[4] The reference to the “Creston-Wynndel Areas” was subsequently deleted from the definition of “designated area” in amendments to the Canadian Wheat Board Act, S.C. 1998 c. 17, s. 1.
[5] S. 32(1)(a) [as am. by S.C. 1998, c. 17, ss. 18, 28] provides:
32. (1) The Corporation shall undertake the marketing of wheat produced in the designated area in interprovincial and export trade and for that purpose shall
(a) buy all wheat produced in the designated area and offered by a producer for sale and delivery to the Corporation at an elevator, in a railway car or at any other place in accordance with this Act and the regulations and orders of the Corporation;
The definition of “designated area” in s. 2(1) provides:
2. (1) …
“designated area” means that area comprised by the Provinces of Manitoba, Saskatchewan and Alberta, and that part of the Province of British Columbia known as the Peace River District, and any other areas that the Corporation may designate under subsection (3).
[6] S. 45(c) [as am. by S.C. 1998, c. 17, s. 28] provides:
45. Except as permitted under the regulations, no person other than the Corporation shall
…
(c) sell or agree to sell wheat or wheat products situated in one province for delivery in anther province or outside Canada;
[7] By s. 16(2) [as am. by SOR/93-486, s. 3] of the Canadian Wheat Board Regulations, C.R.C., c. 397, feed grade wheat and barley for consumption by livestock or poultry for sale within Canada is not required to be sold to the Board. S. 16(2) provides:
16. (1) …
(2) Permission is hereby granted to any licensee, as defined in section 2 of the Canada Grain Act, to sell and buy feed grain, wheat products or barley products that are situated in Manitoba, Saskatchewan or Alberta for delivery for consumption by livestock or poultry at any place in Canada elsewhere than in the province of purchase, and to transport or cause to be transported the feed grain, wheat products or barley products to that place.
As the appellants’ complaint is with respect to the Canadian Wheat Board marketing scheme, reference in these reasons to wheat and barley will generally mean wheat and barley other than feed grade wheat and barley for consumption by livestock or poultry within Canada.
[8] However, by s. 46(c) [as am. by S.C. 1994, c. 47, s. 49] and (e), the Governor in Council may make regulations providing for the granting of licences for the export or interprovincial sale of wheat and barley. S. 46(c) and (e) provide:
46. The Governor in Council may make regulations
…
(c) to provide for the granting of licences for the export from Canada, or for the sale or purchase for delivery outside Canada, of wheat or wheat products, which export, sale or purchase is otherwise prohibited under this Part;
…
(e) to provide for the granting of licences for the transportation from one province to another province, or the sale or purchase for delivery anywhere in Canada, of wheat or wheat products, which transportation, sale or purchase is otherwise prohibited under this Part, and to prescribe the terms and conditions on which those licences may be granted or the terms or conditions of the permission granted in those licences;
Under ss. 14 [as am. by SOR/95-338, s. 1] and 14.1 [as enacted by SOR/93-360, s. 2; 93-486, s. 2] of the Canadian Wheat Board Regulations, C.R.C., c. 397, the Board is empowered to grant such licences under specified conditions. Ss. 14 and 14.1 provide:
14. The Board may grant a licence for the export, or for the sale or purchase for delivery outside Canada, of wheat, wheat products, barley or barley products if
(a) the export, sale or purchase of the grain or products for which the licence is sought does not adversely affect the marketing by the Board, in interprovincial or export trade, of grain grown in Canada; and
(b) the applicant pays to the Board a sum of money that, in the opinion of the Board, represents the pecuniary benefit enuring to the applicant pursuant to the granting of the licence, arising solely by reason of the prohibition of the export of that grain or those products without a licence, and the then existing differences between the prices of that grain or those products inside and outside Canada.
14.1 The Board may grant a licence for the transportation from one province to another, or for the sale or delivery anywhere in Canada, of wheat, wheat products, barley or barley products, but no fee shall be charged for such a licence.
[9] The marketing of wheat and barley grown in areas other than the designated area may be subject to a provincially regulated marketing scheme but is not currently subject to any marketing scheme under the Canadian Wheat Board Act or other federal legislation.
[10] Although ss. 32 and 45 refer only to wheat, their application is extended to barley by reason of s. 47(2)(a) of the Act and the Regulations. S. 47(2)(a) of the Act provides:
47. (1) The Governor in Council may, by regulation, extend the application of Part III or of Part IV or of both Parts III and IV to oats or to barley or to both oats and barley.
(2) Where the Governor in Council has extended the application of any Part under subsection (1), the provisions of that Part shall be deemed to be re-enacted in this Part, subject to the following:
(a) the word “oats” or “barley”, as the case may be, shall be substituted for the word “wheat”;
By Order in Council P.C. 1989-987, dated May 25, 1989, the Governor in Council passed SOR/89-282, s. 1, extending the application of Parts III and IV of the Act to barley. S. 9 of the Canadian Wheat Board Regulations provides:
9. Parts III and IV of the Act are hereby extended to barley.
[11] See for example R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
[12] See Wong v. Canada, [1997] 1 F.C. 193 (T.D.).
[13] 30 & 31 Vict., c. 3 (U.K.) [(as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]].
[14] For example, in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, at paras. 61-66 [pp. 197-202], the majority construed s. 6 of the Charter in view of the types of economic regulation authorized by ss. 91 and 92 of the Constitution Act, 1867, and s. 121 of the Constitution Act, 1867 dealing with the free passage of goods between provinces.
[15] Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, [1958] S.C.R. 626.
[16] [1999] 2 S.C.R. 203.
[17] [1989] 1 S.C.R. 1296.
[18] In R. v. Turpin, supra, note 17, at p. 1332, Wilson J. stated: “A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.”
[19] [1997] 3 S.C.R. 844.
[20] R.S.Q., c. C-12, s. 5.
[21] Appellant’s factum, para. 235.
[22] [1991] 2 S.C.R. 211.
[23] Supra, note 1, at para. 71 [pp. 378-379].
[24] Supra, note 14.
[25] R.S.C., 1985, c. F-4. The regulations pertaining to eggs at issue in the CEMA case were: the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646; the Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8; and the Canadian Egg Licensing Regulations, 1987, SOR/87-242.
[26] Lavigne, supra, note 22, at p. 344.
[27] [1987] 1 S.C.R. 313, at pp. 404-405.
[28] [1990] 2 S.C.R. 367.
[29] Subsequently, the Creston-Wynndel Areas were eliminated from the designated area. Supra, note 4.
[30] [1987] 1 F.C. 490 (T.D.).
[31] Ibid., at p. 504, Martin J. stated:
The geographical restrictions imposed upon the inshore fishing fleet are of general application to all fishermen of the fleet. The restrictions are imposed, not on the basis of the fishermen’s province of present or previous residence but on the basis of the areas where, historically, the fishermen of that fleet had previously pursued the fishery.
[32] [1978] 1 S.C.R. 104, at p. 110.
[33] See the decision of the Ontario Court of Appeal in Skapinker, Re (1983), 40 O.R. (2d) 481. In allowing the appeal of the Ontario Court of Appeal, the Supreme Court did not comment on the law of general application issue [[1984] 1 S.C.R. 357]. See also: Mia and Medical Services Commission of British Columbia, Re (1985), 17 D.L.R. (4th) 385 (B.C.S.C.), per McEachern C.J.S.C.
[34] Demaere v. The Queen (Canada), [1983] 2 F.C. 755 (C.A.).
[35] R.S.C. 1970, c. I-6, s. 88.
[36] [1986] 1 S.C.R. 103.
[37] Supra, note 1, at para. 183 [p. 434].
[38] See M. v. H., [1999] 2 S.C.R. 3, at para. 118 [p. 77], per Iacobucci J.
[39] See s. 14 of the Canadian Wheat Board Regulations, supra, note 8.
[40] See s. 14.1 of the Regulations, supra, note 8.