[1997] 3 F.C. 335
T-2473-93
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 (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada and The Canadian Wheat Board (Defendants)
Indexed as: Archibald v. Canada (T.D.)
Trial Division, Muldoon J.—Calgary, October 15, 16, 17, 18, 21, 22, 23, 24, 28, 29, 30, 31, November 1, 4, 5, 6, 7; Winnipeg, December 9, 10, 11, 12, 13, 1996; Ottawa, April 11, 1997.
Agriculture — Action for declaratory relief Canadian Wheat Board Act breaching plaintiffs’ Charter rights, freedoms — Individual plaintiffs grain farmers residing in “designated area” in Western provinces — Challenging Board’s monopoly as single-desk marketing agency in designated area — Rationale for monopoly under Act, s. 5 to secure orderly marketing, in interprovincial and export trade, of grain grown in Canada — Act not infringing plaintiffs’ rights.
Constitutional law — Charter of Rights — Fundamental freedoms — Freedom of association — Canadian Wheat Board Act compelling farmers living in “designated area” to sell grain to CWB in extraprovincial market — Freedom of association in Charter, s. 2(d) including right not to be compelled to associate — Plaintiffs not associated with Board, with each other, free to form preferred associations — Charter not protecting economic freedom, commercial or property rights.
Constitutional law — Charter of Rights — Mobility rights — Charter, s. 6(2)(b) guarantees right to pursue gaining of livelihood anywhere in Canada, not right to livelihood itself — Case law on mobility rights reviewed — Economic disadvantage not impairment of ability to pursue livelihood — Western farmers challenging Canadian Wheat Board, single-desk marketing agency — No denial of plaintiffs’ mobility rights to pursue gaining of livelihood — “Designated area” most natural, efficient, economic area to grow grain, not impeding mobility.
Constitutional law — Charter of Rights — Equality rights — Whether Canadian Wheat Board Act distinguishes between plaintiffs, farmers not residing in “designated area” — Residence in “designated area” not analogous ground under Charter, s. 15(1) — Plaintiffs not discreet, insular minority discriminated against on basis of irrelevant personal characteristics — Agronomic equality not Charter right — Legislation not violating plaintiffs’ human dignity, freedom.
Constitutional law — Charter of Rights — Limitation clause — Application of Oakes test — Deference essential aspect of s. 1 analysis — Objective of Canadian Wheat Board Act to provide for orderly grain marketing — Board given monopoly to avoid fluctuation of grain prices — Rational connection between objective, achievement of legislation — Minimal impairment of plaintiff’s rights — Deleterious effects of impugned legislation not outweighing salutary benefits provided by CWB monopoly — S. 1 test met.
Constitutional law — Distribution of powers — Charter cannot override head of legislative power distributed in original Constitution — Canadian Wheat Board Act valid exercise of Parliament’s power over trade and commerce under Constitution Act, 1867, s. 91, class 2.
This was an action for declaratory relief that parts of the Canadian Wheat Board Act infringe certain rights and freedoms guaranteed to the individual plaintiffs under the Charter. The latter are all grain farmers who reside in the “designated area” in Manitoba, Saskatchewan and Alberta, where wheat and barley are most efficiently and economically grown. The defendant, Canadian Wheat Board (CWB), enjoys a monopoly in said designated area by virtue of subsections 2(1) and (3) of the Act. The object of the legislation, as set out in section 5, is to market “in an orderly manner, in interprovincial and export trade, grain grown in Canada”. The Board’s monopoly is created by section 45 of the Act which provides that no person other than the Board shall export from Canada, transport from one province to another, sell or buy wheat or wheat products situated in one province for delivery in another province or outside Canada. The federal government created the first Wheat Board in 1919 to curb the fluctuation of grain prices. Since that time, it has renewed the Board’s monopoly on several occasions. This was done in World War II to fulfil Canada’s commitments to its war-time allies (particularly Britain) and renewed in 1950, 1953, 1957, 1962 and in 1967 when it was made permanent. While the plaintiffs did not ask that the CWB be dismantled, they do not want to be forced to market their wheat and barley through it. They argued that the CWB impedes, in various degrees, their ability to maximize potential profits from their operations. They find the “single-desk selling” system inflexible and unresponsive. This case raised a number of constitutional issues: whether the Board’s monopoly infringes the plaintiffs’ rights under: (1) paragraph 2(b) of the Charter; (2) subsection 6(2) of the Charter; (3) subsection 15(1) of the Charter; (4) whether the legislation is saved by section 1 if found to infringe any charter-guaranteed right; and (5) distribution of powers with respect to section 91, class 2 of the Constitution Act, 1867 (trade and commerce).
Held, the action should be dismissed.
(1) Freedom of association in paragraph 2(d) of the Charter includes the right, in some circumstances, not to be compelled to associate. Delivering grain, a commercial commodity, for sale to and remuneration from the CWB, is nothing akin to forming, or participating in, a trade union or an employers’ combination, or a commercial corporation. The law does not require any association between individual producers who must sell their export grain to the CWB. In Lavigne v. Ontario Public Service Employees Union, the Supreme Court of Canada provided a comprehensive framework for analyzing freedom from compelled association. Under that analysis, two questions must be answered: first, whether there is an associative act which results in an impairment of freedom and second, whether the association is “compelled by the facts of life”. The CWB’s monopoly is compelled by the facts of life since it requires the combining of efforts to a common end. The Board’s pooling system and its monopoly over grain export are part of the federal government’s economic policy which is an accepted “fact of life” in modern Canadian society. Not only is government control over the economy an accepted fact of life, the Charter should not and cannot be used as a shield to protect economic interest. In this case, there was no compulsory association, but rather an arm’s length statutory contract of sale of grain for money. The Charter is not an instrument to protect economic liberty or property rights.
(2) Paragraph 6(2)(b) of the Charter guarantees an individual’s mobility within Canada and that person’s ability to pursue a livelihood. It does not, however, provide a free-standing right to work which is an economic aspect of the right. None of the plaintiffs who testified complained about being prevented from pursuing the gaining of a livelihood. They speculated that they could each gain a better livelihood if only freed of the CWB’s monopoly. However, a disadvantage does not constitute an impairment of one’s ability to pursue a livelihood. A “livelihood” is not constitutionally guaranteed. The Canadian Wheat Board Act did not restrict any of the plaintiffs from pursuing the gaining of a livelihood in any province by virtue of their residence in one of the provinces in the designated area. The plaintiffs have not been denied the right to market their produce on a viable economic basis, in being required to sell through the CWB. There was no breach of the plaintiffs’ rights guaranteed by subsection 6(2) of the Charter.
(3) The plaintiffs made two submissions under subsection 15(1) of the Charter. First, that they were discriminated against on the basis of residence in the designated area, which is an analogous ground under subsection 15(1). Second, that the regional differentiation between Canadian farmers as created by the designated area under the Act amounts to agronomic or demographic discrimination and is an analogous ground under subsection 15(1). The first submission fails to prove that the plaintiffs’ residence in the designated area is an analogous ground which denies their human dignity or freedom. Parliament’s definition of the designated area does not single out western Canadian farmers in a manner which negatively impacts on their fundamental human dignity or freedom. There was no evidence that the plaintiffs, as farmers who reside in the designated area, were a discreet and insular minority who are discriminated against on the basis of irrelevant personal characteristics. Geographical distinction is not an analogous ground and agronomic equality is not a Charter right. Section 15 of the Charter is inapplicable.
(4) Where an inquiry is conducted under section 1 of the Charter, the government must establish that the objective of the legislation relates to concerns which are pressing and substantial in a free and democratic society and that the legislation itself is reasonable and demonstrably justified. Deference to socio-economic expertise of the government is an essential aspect of a section 1 analysis. The objective of the Canadian Wheat Board Act, for Charter purposes, is to provide for the orderly marketing of grain by controlling its purchase, sale and export through a single-desk marketing agency, the Canadian Wheat Board. The underlying purpose of the Act must be sufficiently important to warrant the abrogation, if any, of an individual’s Charter rights. The focus of the inquiry is on the purpose of the legislation at the time of its enactment. The rationale for the repeated Parliamentary renewals of the Board’s monopoly was the same: to curb the fluctuation of grain prices and to secure the orderly marketing of grain grown in Canada. Parliament knew well the problems associated with wildly fluctuating prices, the most obvious being the harm inflicted on farmers. The “harm” suffered by prairie farmers was also of national concern because of the role which grain played in the national economy. There is a rational connection between the objective of the legislation and what it is going to achieve. The Canadian Wheat Board has established that it facilitates the orderly marketing of Canadian grain. The issue of impairment to the plaintiffs’ rights is whether keeping the Board as a non-voluntary pool is justified. The defendants have proved that the Board would not be viable in a so-called “dual market”. The three advantages of pooling are the pooling of risk, removing the timing of sales as a factor in the market price and relieving the farmer of marketing responsibilities in order to concentrate on production decisions. Those advantages would be lost in a dual market. Should the Board’s monopoly breach the plaintiffs’ rights, it would be reasonable from a judicial point of view. The final aspect of the section 1 test is to determine whether the deleterious effects of the impugned legislative provisions outweigh its salutary effects. The salutary effect is the orderly marketing of grain so that the harmful effects of the open market on prairie farmers, and the resultant cost on all Canadians, are eliminated. On the other hand, any deleterious effects on the plaintiffs’ constitutional rights do not sufficiently outweigh the salutary benefits provided by the Board’s monopoly. Such monopoly is demonstrably justified in a free and democratic society.
(5) The Charter, being a new organ of the Constitution, cannot override a head of legislative power distributed in the original Constitution. The Canadian Wheat Board is a valid exercise of Parliament’s power over trade and commerce under section 91, class 2 of the Constitution Act, 1867. The legitimate legislative choice of the single-desk marketing system, if abolished, would abort Parliament’s exercise of its trade and commerce power and render nugatory its intent to regulate the saltfish, grain or any other trade.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend The Canadian Wheat Board Act, 1935, S.C. 1947, c. 15, Preamble, s. 2.
Canada Grain Act, R.S.C., 1985, c. G-10, ss. 2 “crop year”, 16(1) (as am. by S.C. 1994, c. 45, s. 5).
Canadian Bill of Rights, R.S.C., 1985, Appendix III, ss. 1(a),(e), 2(e).
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(a),(b),(d), 6(2),(3), 7, 11(d), 15(1).
Canadian Wheat Board Act, R.S.C. 1952, c. 44.
Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2(1) “designated area”, “permit book”, (3), 4(1),(2), 5, 6 (as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 2), 7(3), 24 (as am. idem , s. 6), 25 (as am. idem, s. 7), 26, 27, 28, 30, 31, 32(1) (as am. by S.C. 1995, c. 31, s. 2), (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), 34, 35, 45 (as am. by S.C. 1994, c. 47, s. 48), 46(c) (as am. idem, s. 49), (d) (as am. idem), (e), 47 (as am. by S.C. 1995, c. 31, s. 4).
Canadian Wheat Board Regulations, C.R.C., c. 397, ss. 3, 4, 5, 6, 7, 8 (as am. by SOR/84-408, 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), 23, 24.
Charter of the French Language, R.S.Q., c. C-11.
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], s. 91.
Criminal Code, R.S.C., 1985, c. C-46, s. 16(4).
Food and Drugs Act, R.S.C., 1985, c. F-27.
Marketing of Agricultural Products Act, S.A. 1987, c. M-5.1, ss. 15(1), 18(1), 26.
Prairie Grain Advance Payments Act, R.S.C., 1985, c. P-18.
Tobacco Products Control Act, S.C. 1988, c. 20.
War Measures Act, R.S.C. 1927, c. 206.
War Measures Act, 1914 (The), S.C. 1914 (2nd Sess.), c. 2.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
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.
APPLIED:
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; [1987] D.L.Q. 225; 74 N.R. 99; 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; 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; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; (1989), 96 A.R. 352; 58 D.L.R. (4th) 317; [1989] 4 W.W.R. 1; 66 Alta. L.R. (2d) 97; 38 C.R.R. 193; 98 N.R. 266; 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; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Miron v. Trudel, [1995] 2 S.C.R. 418; (1995), 124 D.L.R. (4th) 693; 29 C.R.R. (2d) 189; [1995] I.L.R. 1-3185; 10 M.V.R. (3d) 151; 181 N.R. 253; 81 O.A.C. 253; 13 R.F.L. (4th) 1; Wong v. Canada, [1997] 1 F.C. 193 (1996), 119 F.T.R. 306 (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; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; PSAC v. Canada, [1987] 1 S.C.R. 424; (1987), 38 D.L.R. (4th) 249; 87 CLLC 14,022; 32 C.R.R. 114; [1987] D.L.Q. 230; 75 N.R. 161; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; R. v. Chaulk, [1990] 3 S.C.R. 1303; [1991] 2 W.W.R. 385; (1990), 69 Man. R. (2d) 161; 62 C.C.C. (3d) 193; 2 C.R. (4th) 1; 1 C.R.R. (2d) 1; 119 N.R. 161; 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; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; (1987), 40 D.L.R. (4th) 18; 77 N.R. 241; 22 O.A.C. 321.
DISTINGUISHED:
Canadian Egg Marketing Agency v. Richardson, [1996] N.W.T.R. 201; (1996), 132 D.L.R. (4th) 274; [1996] 3 W.W.R. 153; 38 Admin. L.R. (2d) 49 (C.A.); leave to appeal to S.C.C. granted 18/10/96.
CONSIDERED:
Lochner v. New York, 198 U.S. 45 (1905); Malartic Hygrade Gold Mines (Quebec) Ltd. c. R. (Québec), [1982] C.S. 1146; (1982), 142 D.L.R. (3d) 512 (Que. S.C.); Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; (1988), 54 D.L.R. (4th) 577; 10 C.H.R.R. D/5559; 36 C.R.R. 1; 90 N.R. 84; 19 Q.A.C. 69; Milk Bd. v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279; (1987), 12 B.C.L.R. (2d) 116 (B.C.C.A.); leave to appeal to S.C.C. refused [1989] 1 S.C.R. xi; 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 (B.C.S.C.); 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; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 105 D.L.R. (4th) 577; 156 N.R. 81; R. v. Zundel, [1992] 2 S.C.R. 731; (1992), 95 D.L.R. (4th) 202; 75 C.C.C. (3d) 449; 16 C.R. (4th) 1; 140 N.R. 1; 56 O.A.C. 161; 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.
REFERRED TO:
International Association of Machinists v. Street, 367 U.S. 740 (1961); Queen (The) v. Klassen (1959), 20 D.L.R. (2d) 406; 29 W.W.R. 369; 31 C.R. 275 (Man. C.A.); leave to appeal to S.C.C. refused, [1959] S.C.R. ix; Winner v. S.M.T., [1951] S.C.R. 887; Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580 (H.L.); 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; R. v. S. (S.), [1990] 2 S.C.R. 254; (1990), 57 C.C.C. (3d) 115; 77 C.R. (3d) 273; 49 C.R.R. 79; 110 N.R. 321; 41 O.A.C. 81; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; (1990), 71 D.L.R. (4th) 68; 47 C.R.R. 193; 111 N.R. 161; 40 O.A.C. 241; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; (1996), 133 D.L.R. (4th) 1; 37 Admin. L.R. (2d) 131; 195 N.R. 81; Canadian Boardcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; (1996), 182 N.B.R. (2d) 81; 139 D.L.R. (4th) 385; 463 A.P.R. 81; 110 C.C.C. (3d) 193; 2 C.R. (5th) 1; 203 N.R. 169.
AUTHORS CITED
Etherington, Brian. “Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to not Associate” (1987), 19 Ottawa L. Rev. 1.
Gibson, Dale. The Law of the Charter: Equality Rights. Toronto: Carswell, 1990.
Hogg, Peter W. “A Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights” in G.-A. Beaudoin and E. Ratushny, eds. Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. (Supplemented). Toronto: Carswell, 1992.
House of Commons Debates, Vol. II, 2nd Sess., 27th Parl., 1967, at p. 1263.
Mandel, Michael. The Charter of Rights and the Legalization of Politics in Canada, Revised edition. Toronto: Thompson Educational, 1994.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “association”.
Oxford Latin Dictionary. Oxford: Oxford University Press, 1985, “associare”, “societas”.
Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 1988, “association”.
Stratas, David. The Charter of Rights in Litigation: Direction from the Supreme Court of Canada. Aurora, Ont.: Canada Law Book, 1996.
ACTION for declaratory relief that parts of the Canadian Wheat Board Act infringe certain rights and freedoms guaranteed to the individual plaintiffs under the Charter. Action dismissed.
COUNSEL:
Keith F. Groves, Bryan D. Newton, Loran V. Halyn, Tamara Bews and Katherine Fraser for plaintiffs.
Brian H. Hay, Glenn D. Joyal and Sharlene Hermiston for defendants.
SOLICITORS:
Sugimoto & Company, Calgary, for plaintiffs.
Deputy Attorney General of Canada for defendants.
The following are the reasons for judgment rendered in English by
Muldoon J.: The plaintiffs seek declaratory relief to the effect that parts of the Canadian Wheat Board Act, R.S.C., 1985, c. C-24 (the CWB Act, or the Wheat Board Act) result in breaches of one or more rights and freedoms guaranteed to the individual plaintiffs under the 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] (the Charter).
The Designated Area
The Canadian Wheat Board (the CWB) enjoys that which is commonly known in the grain trade and among grain growers, including several witnesses at the trial of this action, as the “Board’s monopoly”, the “Wheat Board monopoly” or “single-desk [buying and] selling”. The Board’s monopoly operates, according to subsections 2(1) and (3) of the CWB Act, in the “designated area”, being:
2. (1) …
“designated area” … comprised by the Provinces of Manitoba, Saskatchewan and Alberta, and those parts of … British Columbia known as the Peace River District and the Creston-Wynndel Areas, and such other areas as the Board may designate under subsection (3).
…
(3) The Board may, by order, designate parts of … British Columbia, other than the Peace River District and the Creston-Wynndel Areas, and parts of … Ontario lying in the Western Division that are included in the designated area for the purposes of this Act.
It may be noted, as many will know, that the designated area is that part of Canada in which wheat and barley are most efficiently and economically—as well as agronomically—grown. In fact an average of 41 502 000 acres were dedicated to those crops between 1985 and 1995 (CWB Annual Report 1994, Exhibit 10, at page 54).
The Corporate Parties
The plaintiff, the Alberta Barley Commission, is a body corporate, established as a “commission” within the meaning of that term under the Marketing of Agricultural Products Act, S.A. 1987, c. M-5.1, with its offices located in Calgary, Alberta (hereinafter sometimes the ABC). The ABC was established by the Lieutenant Governor in Council under subsections 15(1) and 18(1) upon the initiative of “a group of producers” having submitted “a proposed plan for the establishment … (d) of a plan that will be administered by a commission” … “where (a) a vote is in favour of the establishment of a plan referred to in section 15(1) … (d), or a plan referred to in section 15(1)(d) is exempted from the requirement of being submitted to a plebiscite”. Although the plaintiffs’ counsel indicated that they are financing this litigation through the ABC, the funds of that commission, their sources and the purposes for which they may be expended appear to be governed largely by section 26 of the above-cited provincial Act.
The plaintiff, the Western Barley Growers Association (the WBGA), is incorporated under Alberta law, as a society whose primary goal is the encouragement of the growth of barley for human and livestock consumption within, and sales of barley from the western provinces of Manitoba, Saskatchewan, Alberta and British Columbia. Its office is located in Calgary.
The defendant, the CWB, is:
(a) a body corporate established under Part I of the Wheat Board Act, subsection 4(1),
(b) an agent of Her Majesty the Queen in right of Canada, according to subsection 4(2) of the Wheat Board Act, and
(c) headquartered in Winnipeg.
The Wheat Board Act
Under the CWB Act and particularly under Part II, paragraph 28(f), the CWB is empowered to fix, and in fact fixes, from time to time, “quotas” of each kind of grain or any grade or quality thereof which may be delivered by producers to elevators or railway cars, within any period or periods, either generally or in specified areas or at specified delivery points or otherwise.
Part II of the Wheat Board Act applies only to grain produced in the designated area, but the provisions of that Act and regulations relevant to interprovincial and export trade apply equally throughout Canada. In regard to the delivery of grain to elevators in the designated area, section 24 [as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 6] of the Act is pertinent. It runs:
24. (1) Notwithstanding anything in the Canada Grain Act, except with the permission of the Board, no person shall deliver grain to an elevator, and no manager or operator thereof shall receive delivery of grain unless
(a) the person delivering the grain is the actual producer of, or is entitled as a producer to, the grain;
(b) at the time of delivery the person delivering the grain produces to the manager or operator a permit book under which that person is entitled to deliver the grain in the crop year in which delivery is made;
(c) the grain was produced in the crop year in which delivery is made on the lands described in the permit book or in any other crop year on any lands whatever;
(d) the grain is delivered at the delivery point named in the permit book; and
(e) the quantity of grain delivered, whether delivered for storage or sold, together with all grain of the same kind or grade previously delivered under the permit book during the crop year in which delivery is made, does not exceed the quota established by the Board for that delivery point for grain of the kind or grade delivered at the time it is delivered.
(2) Where grain is delivered by a producer to an elevator, the manager or operator thereof shall, immediately on completion of the delivery of the grain, truly and correctly record and enter the net weight in tonnes, after dockage, of the grain so delivered in the permit book under which delivery is made and shall initial the entry in the permit book.
Section 25 [as am. idem, s. 7] has like provisions governing delivery of grain into a railway car.
Currently, only wheat (including durum) and barley, by operation of section 47 [as am. by S.C. 1995, c. 31, s. 4] of the Act, are subject to the monopoly. These are commonly known as “Board grains”. Other crops, such as canola and oats, are often termed “off-Board grains”.
The “permit book” referred to in sections 24 and 25 is defined in subection 2(1) of the Wheat Board Act to mean “a Canadian Wheat Board delivery permit issued pursuant to this Act by the Board for a crop year”. The right of a producer to compel the CWB to issue him or her a permit book and the use of such book are provided for in the Wheat Board Act as follows:
26. (1) Subject to this Act, a producer may require the Board to issue a permit book authorizing delivery of grain produced on the land comprising the farm of the producer.
(2) The actual producer of grain on any land has the prior right to possession of the permit book in which the land is described but shall make the permit book available to any other producer entitled to deliver grain thereunder on the request of that producer.
(3) Not more than one permit book shall be issued in respect of land comprising any farm or group of farms operated as a unit.
(4) No permit book shall be issued to any person other than a producer.
Section 27 provides in subsection (1) that producers may deliver only their proper proportions of the quota, and in subsection (2) that a mortgagor, or a purchaser under an agreement for sale, is entitled to deliver his or her share of the grain in priority to any other producer.
The Board’s powers of administration include the following:
28. The Board may, notwithstanding anything in the Canada Grain Act, but subject to directions, if any, contained in any order of the Governor in Council, by order,
(a) prescribe the forms of and manner of completing applications for permit books, permit books and such other forms as may be necessary for the administration of this Act;
(b) prescribe the manner in which applications for permit books shall be made and permit books shall be issued;
(c) prescribe the manner in which deliveries of grain under a permit book shall be recorded in the permit book or any other entry may be made in the permit book;
(d) prescribe a place on a railway as the delivery point at which grain may be delivered under a permit book;
(e) determine whether, for the purposes of this Act, two or more farms are operated as a unit;
(f) fix, from time to time, quotas of each kind of grain, or any grade or quality thereof, that may be delivered by producers to elevators or railway cars, within any period or periods, either generally or in specified areas or at specified delivery points or otherwise;
(g) notwithstanding anything in this Part, prohibit the delivery into or receipt by an elevator of any kind of grain, or any grade or quality thereof, either generally or otherwise;
(h) exclude any kind of grain, or any grade or quality thereof, from the provisions of this Part, in whole or in part, either generally or for any specified period or otherwise;
(i) require any kind of grain, or any grade or quality thereof, in any elevator to be delivered into railway cars or lake vessels;
(j) prohibit the delivery of any kind of grain, or of any grade or quality thereof, out of any elevator into railway cars or lake vessels;
(k) provide for the allocation of railway cars available for the shipment of grain at any delivery point to any elevator, loading platform or person at the delivery point; and
(l) require any person engaged in the business of delivering, receiving, storing, transporting or handling grain to make returns to the Board of information relating thereto or of any facilities therefor, owned, possessed or controlled by that person.
…
30. The Governor in Council may, by regulation, apply this Part to grain produced in any area in Canada outside the designated area specified in the regulation and to producers in respect of that grain, and thereafter, until the regulation is revoked, “grain” in this Part means grain produced in the designated area and in the area so specified in the regulation and “producer” means a producer in respect of that grain.
31. Subject to section 40, in this Part, “pool period” means a crop year.
“Crop year” is a familiar term and it is defined in section 2 of the Canada Grain Act , R.S.C., 1985, c. G-10, as:
2. …
“crop year” … subject to any order of the Governor in Council made pursuant to section 115, the period commencing on August 1 in any year and terminating on July 31 in the year next following.
The Wheat Board Act and the Canada Grain Act in this subject are statutes in pari materia.
Sections 5 and 6 [as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 2] of the CWB Act set out the object and powers of the CWB. Its object under section 5 is to market “in an orderly manner, in interprovincial and export trade, grain grown in Canada”. The powers under section 6 allow the Wheat Board to carry out the mandate Parliament conferred on it.
The Canadian Wheat Board Regulations, C.R.C., c. 397, set out how a producer can apply for a permit book in sections 3 to 8 [s. 8 (as am. by SOR/84-408, s. 1)].
Sections 23 and 24 of the Canadian Wheat Board Regulations mandate that the Wheat Board determine the number of the quota acres for which each grain on a farmer’s application may be delivered to an elevator.
The backbone of the Wheat Board is its “pooling system”, which is set out in Part III of the CWB Act. When a farmer delivers grain to an elevator, that farmer is paid an initial payment, which will vary according to the type, (wheat, durum wheat, barley) and grade of grain. The initial payment is provided for in subsections 32(1) [as am. by S.C. 1995, c. 31, s. 2] and (2), which read:
32. (1) The Board 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 Board at an elevator or in a railway car in accordance with this Act and the regulations and the orders of the Board;
(b) pay to producers selling and delivering wheat produced in the designated area to the Board, at the time of delivery or at any time thereafter as may be agreed on, a sum certain per tonne basis in storage at a pooling point to be fixed from time to time
(i) by regulation of the Governor in Council in respect of wheat of a base grade to be prescribed in those regulations, and
(ii) by the Board, with the approval of the Governor in Council, in respect of each other grade of wheat;
(b.1) deduct from the sum certain referred to in paragraph (b) the amount per tonne determined under subsection (2.1) for the delivery point of the wheat to the Board;
(c) where, pursuant to paragraph (b), the sum certain payable to producers in respect of wheat of any grade is increased during a pool period, pay to any person the amount of the increase in respect of each tonne of wheat of that grade produced in the designated area and sold and delivered by that person as a producer to the Board during the pool period prior to the day on which the increase becomes effective; and
(d) issue to a producer, who sells and delivers wheat produced in the designated area to the Board, a certificate indicating the number of tonnes purchased and delivered and the grade thereof, which certificate entitles the producer named therein to share in the equitable distribution of the surplus, if any, arising from the operations of the Board with regard to the wheat produced in the designated area sold and delivered to the Board during the same pool period.
(2) Each sum certain fixed by the Board pursuant to paragraph (1)(b) in respect of a grade of wheat other than a base grade shall be an amount that brings the sum certain for that grade into proper price relationship with the sum certain for the base grade.
Section 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] provides for both interim and final payments to a farmer. At the end of a pool year, all producers who sold grain into a pool will receive the same price per tonne, notwithstanding what market prices were when the grain was actually delivered. Section 33 warrants notice but is too voluminous to recite here.
Sections 34 and 35 of the Act allow the Board to pay a premium to a producer if the wheat can be identified as having an “inherent quality characteristic that distinguishes it from any other wheat within that grade” (paragraph 35(a)).
If the CWB incurs losses, the farmer is nevertheless still guaranteed the initial price. Subsection 7(3) in turn guarantees parliamentary indemnification for the Board.
The grades in reference to which the CWB establishes the pools are set out by the Canadian Grain Commission, which by subsection 16(1) [as am. by S.C. 1994, c. 45, s. 5] of the Canada Grain Act, may, by regulation, establish grades and grade names for any kind of western grain and eastern grain and establish the specifications for those grades and set out a method or methods, visual or otherwise, for determining the characteristics of the grain for the purposes of meeting the quality requirements of purchasers of grain.
Part IV of the Canadian Wheat Board Act gives the Board some of the “teeth” to enforce its monopoly. Section 45 [as am. by S.C. 1994, c. 47, s. 48] runs:
45. Except as permitted under the regulations, no person other than the Board shall
(a) export from Canada wheat or wheat products owned by a person other than the Board;
(b) transport or cause to be transported from one province to another province, wheat or wheat products owned by a person other than the Board;
(c) sell or agree to sell wheat or wheat products situated in one province for delivery in another province or outside Canada; or
(d) buy or agree to buy wheat or wheat products situated in one province for delivery in another province or outside Canada.
It is this section and the regulation-making provisions for the granting of export permits (paragraphs 46(c) [as am. idem, s. 49], (d) [as am. idem] and (e)) which frustrate the plaintiffs and other like-minded producers from directly accessing allegedly lucrative extra-provincial markets without going through the CWB. The Act in Part VII provides Offences and Punishment as further “dentition”.
The Wheat Board’s licence granting powers are provided in sections 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 those Regulations:
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.
As it may not be readily apparent from the recitation of the foregoing legislation, the so-called “three pillars” of the Wheat Board warrant identification. The first is that it is a single desk marketer (by virtue of the monopoly over western Canadian wheat and barley). The second pillar is pooling of prices. The third is that the federal government underwrites the initial payment and guarantees the CWB’s borrowings (Exhibit 10, at page 4).
The Plaintiffs
It is admitted by the defendants that each of the individual plaintiffs is: a citizen or permanent resident of Canada; a producer of grain from land identified on Exhibit 1, a prairie provinces map, on which he resides, located in one of those provinces; a “producer” and “actual producer” of “wheat” and/or “barley” with the meaning of those terms (wheat and barley hereinafter called “grain”) as defined in the Wheat Board Act; ordinarily resident in the designated area in Manitoba, Saskatchewan or Alberta.
The individual plaintiffs are all grain farmers who reside in the designated area. Of the nineteen plaintiffs, six were called as witnesses. Their testimony illustrates a simple point: while each operation is unique and has its own particular challenges, for each it is only more or less practical (in some instances “necessary”), to come into contact with the Wheat Board.
Brian Otto farms just outside of Warner, Alberta. He is a school teacher by training and a farmer by choice (transcript: Vol. I, at page 163). He owns 2200 acres and grows wheat, barley and specialty crops (Exibit 2; transcript: Vol. I, at page 77). Wheat and barley are part of the rotation—the cornerstone of Mr. Otto’s farming continuous cropping operation—which provides ground cover for the land and controls some of the diseases to which specialty crops are prone (transcript: Vol. I, at page 77). Brian Otto currently grows Canadian Prairie spring and winter wheat. These are both particularly well suited to the geographic and agronomical circumstances of his operation (transcript: Vol. I, at pages 90-94). The barley, Harrington, is grown for the same reasons. Mr. Otto grows barley for the malt market. What is not accepted for malting is sold into the local feed market at lower price. Spring and autumn are the times of highest cash flow and careful management must be imposed to ensure obligations are met (transcript: Vol. I, at page 128).
Mr. Otto finds that the Board’s monopoly impairs his operation because he is unable to market his grain directly to the United States when American prices are higher unless he participates in a “buyback” (transcript: Vol. I, at pages 123-124). It is permissable for producers to export “Board grain” if they obtain an export permit by first selling grain to the CWB and then buying it back (section 14 of the Regulations). The same result happens when Mr. Otto wants to sell any feed grain outside of Alberta (transcript: Vol. I, at page 156).
Mr. Otto testified as to his perception of how the permit book and contract system work. He sees the permit book system as allowing him to deliver a certain number of bushels to the CWB every year for an assigned acreage. The CWB decides the quota (bushels/acre) (transcript: Vol. I, at page 149). Currently, it must take 1.7 bushels/acre if there is room in the elevator system. As typical production is 25-30 bushels of grain per acre, about 3-5% of production is required to be taken by the CWB. A permit book is needed to sell all “Board grain” in an export position (transcript: Vol. I, at page 150). Under the contract programs, there are four offerings: A, B, C and D. The “A” offering comes in October of the crop year. The farmer can make an offer to the CWB, and it can accept delivery over and above the quota (transcript: Vol. I, at page 152). The seller cannot deliver immediately. Delivery can only happen when the Canadian Wheat Board calls the contract. The Wheat Board may call all or part of the contract. If the contract is not called, the farmer must store the crop. In Brian Otto’s case, he must store the grain on his farm. He has enough space only for one full crop. There is little room for holdover (transcript: Vol. I, at pages 153-155).
Tim Harvie lives and farms just outside of Cochrane, Alberta, to the west of Calgary. On his 907 acres he grows barley, oats and canola (Exibit 5; transcript: Vol. I, at page 191). Most of his grains are grown for the feed market. What he can grow is restricted by the climatic conditions imposed by the high altitude of his farm, situated on the foothills of the Rocky Mountains. Mr. Harvie has also started a feed grain rolling enterprise. The feed grains are rolled, then delivered directly to the purchaser. In essence, he has added value “on site”. The balance of the feed grains are sold directly to local feed lots (transcript: Vol. I, at pages 179-180).
Mr. Harvie is the chairman of the Alberta Barley Commission, the corporate plaintiff (transcript: Vol. I, at page 191). The Alberta Barley Commission funded this litigation (transcript: Vol. II, at page 225). Mr. Harvie finds the pooling aspect of the Board’s monopoly does not reward producers for their top product. He does not want to share the value of his extra production effort with the pool (transcript: Vol. II, at page 255).
Mr. Harvie described how he is paid by the CWB for malt barley. The same process occurs for all so-called Board grains. When the barley is delivered, he is paid the initial price currently in force. Deducted from the initial payment are freight and handling, elevation, dockage and in the case of barley, a voluntary “check off” for the barley commission. What remains is Mr. Harvie’s farm gate price (transcript: Vol. II, at page 243). In terms of final payment, the CWB forecasts the pool return based on its analysis of the world market. Interim payments are made when it is feasible for the CWB to do so without jeopardizing the pool. The final payment usually comes in the January following the harvest (transcript: Vol. II, at page 244).
Mr. Harvie personally markets his canola a so-called “off-Board” crop. Generally, he does not want to sell his crop at harvest-time prices because canola’s value is often lower, due to the ample supply at that time. Mr. Harvie is fortunate because he lives near a large terminal facility in Calgary which has the capability of storing his entire crop. Usually he enters into a basis contract (called “the November basis contract”) with a grain company, in his case Cargill, the previous winter (November to January). The November contract assures him elevator space and is based on his estimate of fall harvest. After considering market prices, which he receives daily, Mr. Harvie signs the contract when the basis (the dollar number deducted from the contract) is narrow because there will be less deducted from the future contract for his price. After he signs the contract, Mr. Harvie is obligated to deliver the contracted amount (transcript: Vol. II, at page 264).
In terms of risk management, plaintiff Harvie essentially self-pools. He commits various percentages of his anticipated production, in 20 tonne lots, to guard against sudden price decreases and to share in any increases (transcript: Vol. II, at pages 266-267). Other tools he uses include options. He pays a premium when he buys a call option but establishes a floor price. If market prices decrease, the option will expire worthless. Only the premium is forfeited. If the market increases, the call options appreciate in value and he can sell them at any time in the future at the higher value. Mr. Harvie will also sometimes buy put options, which establish a maximum price and guard against falling markets (transcript: Vol. II, at pages 268-269).
The plaintiff Paul Orsak farms wheat, canola and peas near Binscarth, Manitoba. Wheat comprises about 50%, canola 30% and peas 20% of the land he farms (transcript: Vol. III, at page 379). Mr. Orsak and his father have a closely integrated operation, sharing equipment and labour (transcript: Vol. III, at page 375). The combined landholdings of Mr. Orsak and his father are about 3800 acres, with the plaintiff farming just over 2000 acres (Exibit 8). “Short seasoned” cereal crops are best suited to Mr. Orsak’s land, situated just west of the Riding Mountain escarpment. The higher altitude limits the number of frost-free days and September rainfall complicates harvest (transcript: Vol. III, at pages 380-382). Because of its disease prevention rôle, wheat is an important part of Mr. Orsak’s crop rotation cycle. It cannot be replaced by peas and lentils.
The highest cash outflow periods for Mr. Orsak are June/July and October/November. Cash inflow is difficult to manage because it depends on market conditions, space in the grain system to accept delivery of grain, price, and Wheat Board quotas and contract calls (transcript: Vol. III, at pages 404-405). Mr. Orsak has considered the buyback scheme but the amount of money which the CWB wanted to do the deal negated any price advantage which could have been realized through private export (transcript: Vol. III, at page 412).
Mr. Orsak enters the marketing chain either through a country elevator or by loading rail cars himself. After that, the grain is in the system and certain aspects, such as terminal elevators, cannot be avoided. When Mr. Orsak loads the grain onto rail cars himself, the costs of country storage are still paid because the storage costs are pooled and deducted from the final payments (transcript: Vol. IV, at pages 432-433).
One problem Mr. Orsak has with the CWB, he complains, is that it restricts his control over cash flow, the timing of sales vis-à-vis current market price and the effect this has on his so-called off-Board crops (transcript: Vol. IV, at page 470). To meet cash flow requirements Mr. Orsak is sometimes obliged to sell off-Board crops at inopportune prices in order to make ends meet. For example, in the autumn there exist few opportunities to deliver to the CWB. In order to pay taxes, custom harvesting costs and other payables, he has to rely on his canola and pea income. Other producers have to use similar measures and this puts pressure on the market price (transcript: Vol. IV, at page 471). Mr. Orsak has utilized the Prairie Grain Advance Payments Act, R.S.C., 1985, c. P-18, which can afford him price relief in the autumn (transcript: Vol. IV, at pages 496-500). The advance payments apply to all grain, even if sold into off-Board markets (transcript: Vol. IV, at page 505). The problem, Mr. Orsak says, is that he needs a permit book to apply for the advances. As well, interest accrues until the advance is repaid (transcript: Vol. V, at page 518).
Mr. Orsak was able to market all of his 1995 wheat production without a permit book because market conditions were favourable enough to allow him to sell all of his grain into the domestic feed market (transcript: Vol. III, at page 410). This is not always economically feasible. In his words: “I don’t want to cut off my nose to spite my face” (transcript: Vol. III, at page 410).
The plaintiff, Conrad Johnson, is a landed immigrant. He moved from Montana to his farm near Bracken, Saskatchewan, in 1975 (transcript: Vol. V, at page 525). His operation covers 37 quarter sections (5920 acres) and is primarily a family operation (transcript: Vol. V, at pages 530-532). The soil, brown loam, is very fertile but the farm’s limiting factor is moisture. This area receives very little moisture during the growing season. Autumn rains account for most of the moisture (transcript: Vol. V, at page 528). The crops most suited for growth on Mr. Johnson’s farm are wheat and barley: wheat, durum wheat, barley, lentils, canary seed and oats were sown in the 1996 crop year (transcript: Vol. V, at pages 530-534). In order to reduce handling charges, Mr. Johnson and some of his friends built an “inland terminal” (transcript: Vol. VII, at page 702). This was done to recover costs which would normally be incurred by the grain trader (transcript: Vol. VII, at page 707).
Mr. Johnson has been able to obtain a protein content of up to 17% in his best wheat (No. 1 Canada Western Red Spring). Any percentage above 14.5% is not recognized by the CWB (transcript: Vol. V, at page 556). Conrad Johnson has never successfully completed a buyback. The Wheat Board will not allow a buyback in excess of a farmer’s quota (transcript: Vol. V, at page 600; Vol. VI, at page 649). The problem he found with organizing a buyback was that large volumes had to be shipped in order to preserve their identity. The quota was a major factor in stifling the buyback attempt (transcript: Vol. VI, at page 648.)
Edwin Cawkwell farms just northeast of Nutt Mountain, Saskatchewan. His farm encompasses approximately 6000 acres. In 1996 wheat was grown on about 1 000 acres, barley on 2000, oats on 800, peas on 850 and canola on 900—1000 acres (transcript: Vol. VII, at page 733). Barley, especially malt barley, is well suited to the geographic conditions of his locale. Plaintiff Cawkwell farms in a four-year rotation, which includes factoring in various factors including residual chemical carryover (transcript: Vol. VII, at page 740). He has considerable experience with malt barley. To sell malt barley through the CWB, Mr. Cawkwell—as do all potential malt barley sellers—sends a sample to the elevator. The elevator forwards the sample to the purchasing company. At the time the sample is submitted, the producer signs a contract with the Wheat Board which commits it to buy the barley if that grain meets the maltster’s specifications. As with all grain, there is an initial and final payment (transcript: Vol. VII, at page 746).
Mr. Cawkwell testified that one of the effects which the CWB’s operations have on him and other producers has to do with allocation of freight cars. If he wants to sell so-called Board grain and has a sufficient quota or contract, cars are guaranteed. Car allocation for non-Board crops are allocated by lottery (transcript: Vol. VII, at page 800).
Richard Dobranski, another plaintiff, farms on 3520 acres outside of Roblin, Manitoba, some eight to ten miles north of Riding Mountain National Park. In addition to wheat, barley and various specialty crops, Mr. Dobranski also has a 110-head cattle and a 75-head bison operation. The area is very favourable to many types of crops, as it has consistent rainfall and about 95 frost-free days (Exibit 35). Mr. Dobranski has also had experience in running numerous voluntary pools for “off-Board” crops when he was employed with All State Grain (transcript: Vols. XI and XII, at pages 1180-1234).
Mr. Dobranski has successfully completed a “buyback” in order to sell grain in the United States. Mr. Dobranski has done this on two occasions, when the market prices in the United States were sufficiently lucrative to warrant the cost of the buyback (transcript: Vol. XII, at page 1253). The cost of the buyback is the difference between the initial price which the CWB pays the producer and the asking price for which the CWB sells in the particular market which the producer wants to enter (transcript: Vol. XII, at page 1289). In order to execute a buyback, the producer must arrange a sale to the Wheat Board and to a customer. This is usually done through an agent (transcript: Vol. XII, at page 1254). Mr. Dobranski’s description of his buyback experience can be summarized as frustrating. In both years he did a buyback, the CWB levied a storage and interest charge for the grain which he bought back even though the grain never left his farm. The Court has no reason to disbelieve Mr. Dobranski in this regard. After negotiation, these charges were eliminated (transcript: Vol. XII, at pages 1281-1282). During his last buyback attempt—unsuccessful—in 1994, the Wheat Board refused to eliminate these oppressive and artificial charges (transcript: Vol. XII, at page 1287). Mr. Dobranski’s other complaints with the Wheat Board are that his cash flow is cramped by its restrictions and that there is no negotiability of grain contracts.
One common fact which arises from the plaintiffs’ producer witnesses is that in order to farm successfully as a livelihood, they must grow crops which are under the CWB mandate. Geography, climate, agronomics and profitability are some of the factors which make the subject grain an integral part of their farming operations. There is no choice. That lack of choice, be it noted is not based uniquely on the Wheat Board Act’s provisions, but also on the agronomics and economics of each plaintiff’s grain production. The Board’s monopoly is not the sine qua non of the lack of choice. Nature is. It is the imposition of that monopoly which is at the heart of the Charter issues which in turn pose the constitutional questions in this litigation. The other common fact is that all are able successfully, i.e. profitably, to grow the so-called off-Board crops. All of the plaintiffs have ready access to daily market information (Mr. Harvie’s testimony, transcript: Vol. II, at page 265; Mr. Orsak’s testimony, transcript: Vol. IV, at page 456; and Mr. Cawkwell’s testimony, transcript: Vol. VII, at page 738) and potential buyers. Another common thread is that they are often capable of producing a high-quality product, the value of which is not always recognized by CWB’s pooling system. All of these witnesses find that the Canadian Wheat Board impedes, in various degrees, their ability to maximize the potential from their operations. They find the CWB inflexible and unresponsive. In some cases, such as the pooling of costs, the plaintiffs find the system unfair. These complaints demonstrate why the plaintiff producers do not like the Board’s monopoly. No doubt the plaintiffs have just cause to criticize some of the manner in which the CWB operates, but even if its operations were a complete shambles, which overstates the problems, the constitutional Charter questions would still be begged.
The individual plaintiffs, according to the testimony offered before the Court would like to break free from the Board’s monopoly, to be permitted to sell their grain grown on their lands as and to whom they choose within or outside of Canada. Each one is confident that he could do better—achieve a better price and profit—on his own, while engaging in “the fun of being a businessman” (transcript: Vol. 11-12-96, at page 3664) as an independent private entrepreneur, or as a participant in a coalition of his own choosing. They do not like having to dispose of their grain and be paid for it through the means of the CWB’s single desk selling operations. Almost to a plaintiff, the plaintiffs are philosophically antipathetic to this state-sponsored marketing of the grain produced in the designated area.
If the plaintiffs succeed in their opposition to the Wheat Board’s single desk monopoly by invocation of the Charter, it will mean that the Canadian state will be declared to be incapable of ever again creating such a marketing instrument no matter to whom the people entrust a parliamentary majority, no matter what be the will of Parliament. The federal power over trade and commerce will be gravely diminished, if not mortally drained.
A Dissenting Producer Witness
It cannot be supposed that the Wheat Board’s monopoly causes all the grain producers in the designated area to feel hard done by. One of the many who dissent from the plaintiffs’ views and their complaints is Nettie Wiebe. Her testimony was not less interesting or less elucidating than the plaintiffs’ testimony.
Ms. Nettie Wiebe is a producer, no less than the plaintiffs’ producer witnesses. Unlike the plaintiffs’ witnesses, however, Ms. Wiebe ardently supports the CWB. Ms. Wiebe, along with her husband and her family of children, farm south of Laura, Saskatchewan, a village about 70 km southwest of Saskatoon. She farms by choice and from the University of Calgary holds a Ph.D. (thesis: philosophical justification for human rights). The Wiebe farm is aptly described as a family operation (transcript: Vol. XXI, at page 2130). The family’s landholding is about 2400 acres, of which 1 113 acres were seeded to wheat, mustard and peas last year. The remainder is hay and pasture land (transcript: Vol. XXI, at page 2132). Normally wheat and barley comprise half of the sown acreage, with the remainder being a “pulse” crop such as lentils or peas and an oil seed, usually mustard. Some oats are grown for their (and their neighbour’s) horses (transcript: Vol. XXI, at page 2133). Their land, says Ms. Wiebe, “is on the whole a very productive place, with, of course, the proviso that we are always vulnerable to the weather pattern always.” (transcript: Vol. XXI, at page 2134). The Wiebe’s barley is often selected for malt.
Ms. Wiebe states that the Wheat Board gives her family’s operation “enormous advantages” (transcript: Vol. XXI, at page 2136). She believes that the CWB gives them a price advantage, particularly with respect to the premiums received for malt barley. Also important to Ms. Wiebe is that the marketing of their “Board grains” is taken out of their hands (transcript: Vol. XXI, at pages 2136, 2154 and 2171). The clientele is already in place (transcript: Vol. XXI, at page 2165). She testified that “We have a community in which we participate vigorously. We have many things to do, and it is a great advantage to us to have that marketing expertise at our disposal doing that work for us which the Canadian Wheat Board offers us” (transcript: Vol. XXI, at page 2136; and page 2154 of the same volume). Related to this is the benefit of knowing the initial price (transcript: Vol. XXI, at pages 2154 and 2171). Another advantage, in Ms. Wiebe’s opinion, is that the CWB is a predictable risk management tool. This is important to her because her farm’s production is at the mercy of the weather (transcript: Vol. XXI, at page 2138).
Ms. Wiebe does not like the added uncertainty and vulnerability associated with price fluctuations in the open market (transcript: Vol. XXI, at page 2147). She thinks that the Wheat Board’s monopoly provides an equitable and orderly system of moving grain for producers (transcript: Vol. XXI, at page 2154). To her mind, she has incurred no ascertainable disadvantage by choosing to reside in the designated area (transcript: Vol. XXI, at page 2162), thereby articulating her subsection 6(2) Charter rights. Being forced to sell Board-controlled grains does not impair her ability to market her commodities (transcript: Vol. XXI, at page 2165), and she makes no complaint of denial of the freedom expressed in paragraph 2(d) of the Charter.
Ms. Wiebe is the president of the National Farmers Union. The Union has a membership of about 10 000 members (transcript: Vol. XXI, at page 2160). The Court notes that this is out of the 867 000 farmers (of all stripes) in Canada as of 1991 (Exibit 16). In her words, “The farmers union has, always had a strong position in favour of orderly marketing, supply management, and the single-desk selling of the mandate of the Canadian Wheat Board.” (transcript: Vol. XXI, at page 2161). The members of the Union “like” the CWB’s single-desk status. They are certainly articulating their paragraph 2(d) freedom of association, (as are the plaintiffs in the Western Barley Growers’ Association).
It is Ms. Wiebe’s view that she, along with all farmers including the plaintiffs, would be better off if the CWB had control of all crops (transcript: Vol. XXI, at pages 2189, 2191-2192). When confronted by the plaintiffs’ lead counsel Mr. Groves about why she would want to force Mr. Harvie to commit canola to the Wheat Board, she replied “I assume it is a matter of an insight into what is a broader benefit for us farmers” (transcript: Vol. XXI, at page 2191). This comment brings everything into a full circle. The issue before the Court is not what is best for all farmers. Nor, as noted earlier, is who likes or dislikes the Wheat Board’s monopoly relevant. It is clear that farmers’ opinions regarding the existence of the Wheat Board’s monopoly encompass the entire spectrum, from the collectivist view to the unfettered enterprise view. The question of “what is best” for all farmers and whether “those who like” outnumber “those who dislike” the monopoly is one for Parliament. Whether Parliament’s “chosen instrument” infringes the plaintiffs’ Charter rights is the sole issue before the Court. It is for Parliament, not the Court nor the producers nor the Charter to prescribe what is best in economic terms for Canada and Canadians, voters and stay-at-homes alike.
Ms. Wiebe, in summation, was just as credible a witness as were the individual plaintiffs who testified. Although their views differed as to how this case should be decided all of the producer-witnesses were credible in the manner of their testimony.
Invocation of the Charter of Rights and Freedoms
The plaintiffs invoke the Charter’s following provisions:
2. Everyone has the following fundamental freedoms:
…
(d) freedom of association.
…
6. …
(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 to take-up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
…
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.
In common with all the other freedoms and rights expressed in the Charter, the above-recited provisions are, according to section 1 thereof, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Charter paragraph 2(d)
The provisions at issue under this prong of the plaintiffs’ case are section 45 and the combined effects of Parts III and V of the Act.
Freedom of association has everything to do with the meaning of “association”. In The Oxford English Dictionary, 2nd ed. 1989, Clarendon Press, the first and paramount definition of “association”, 1. a, is “The action of combining together for a common purpose; the condition of such combination; confederation, league.” It is obvious that the reference is to a confederation of persons, not things. In the 1985 update Petit Robert I: Dictionnaire alphabétique et analogique de la langue française, Paris, the first and third definitions convey the same thought: [translation] “1. The action of associating someone with something. Participation, collaboration, cooperation … 3. A group of persons who join together for a specified purpose …. “The purpose of a political association is to preserve the natural and inalienable rights of man.” Again, the joint combining of people, not things, for a determined objective.
Both official languages have the same derivation of “association” in the Latin language: associare, “To join (to), associate (with)”, and even more basic: societas: “1. The fact or condition of being associated for a common purpose, partnership … 2. A body of persons associated for a common purpose…. 3. Partnership (between peoples or sovereigns) in war, etc., alliances”. (Oxford Latin Dictionary, 1985, Oxford University Press.) Broad, ancestral definitions can lead one in many diverse directions, but here the point is that the kind of association whose freedom is guaranteed by the Charter, means an association of people, and not just people’s things, chattels, commodities or other property. The plaintiffs’ leading counsel conceded before the Court, without a shadow of doubt, that the grain which is a subject of this litigation is a commercial commodity (as is quite obvious, in any event), in fact, a thing, but not a person. Therefore Charter paragraph 2(d) has nothing to do with different producers’ grain being mixed together in rail cars, elevators and bins of any kind: grain, being inanimate and non-human, is incapable of “association” in the sense of paragraph 2(d) of the Charter. Having their grain mixed together does not thereby push the producers into any sort of constitutional association.
The plaintiffs, in being obliged by law to sell their grain through a Crown marketing agency are not thereby made to “associate” themselves with the state, because their grain is a commercial commodity. It is quite true that “freedom of association” comports with it the notion of freedom not to associate: Lavigne v. Ontario Public Service Employees Union , [1991] 2 S.C.R. 211. Delivering grain, a commercial commodity, for sale to and remuneration from the CWB, is nothing at all akin to forming, or participating in, a trade union or an employers’ combination, or a commercial corporation.
There is no question that the freedom to associate encapsulated in paragraph 2(d) of the Charter includes the right, in some circumstances, not to be compelled to associate. The seminal case on this point is Lavigne v. Ontario Public Service Employees Union, above cited. Using Lavigne as a starting point, there are several angles from which one can approach paragraph 2(d) of the Charter in this case. Simply put, they are as follows:
1. individuals are compelled by statute to associate with each other
2. individuals are prohibited from associating with each other for the purpose of exporting wheat and barley because to do so would be in contravention of statute
3. individuals are compelled by statute to associate with the Canadian Wheat Board.
Of these, only the third is pertinent, although it is also wrong. While a vague argument for a breach may be made under the first category, it fails because the law does not require any association between individual producers. It simply requires producers to all do the same thing, viz. sell their export grain to the CWB. Even though the producers all have a stake in the pool—a common stake—the resulting alleged, non-existent association centres around a purely economic interest, which is not protected by the Charter. (Despite the Northwest Territories Court of Appeal opinion in Canadian Egg Marketing Agency v. Richardson , [1996] N.W.T.R. 201 [hereinafter CEMA] (leave to appeal granted by the Supreme Court of Canada, October 18, 1996, S.C.C. Bulletin, at page 1571) to the contrary, which concluded that (a) there has been no Supreme Court opinion to the contrary, and (b) that in that case the association right was intimately connected with mobility rights, which do (purportedly) recognize certain economic rights, under paragraph 6(2)(b). This case is discussed below under “Charter subsection 6(2)”.) The second category, while seemingly a breach of the positive aspect of the right to association, as above formulated, is not grounded in the facts before the Court. Nevertheless, no one can be heard to complain about being thwarted in conspiring to carry out an unlawful act, unless the law operates in breach of the Charter, a premise which begs the question herein.
The third category may be said to constitute a breach. According to Lavigne the central question in forced association cases is whether there is an “associative act”. This is why the facts in Lavigne become crucial. Lavigne was a teacher at the Haileybury School of Mines and was a member of the academic staff bargaining unit represented by OPSEU, a union. He was at no time a member nor was he required to be a member of OPSEU. Lavigne, however, did have to pay OPSEU dues. Such compulsory payment is traditionally known as “check-off”. OPSEU paid a certain percentage of dues to various organizations, such as the Canadian Labour Congress and the New Democratic Party. Lavigne did not want his dues to go toward some of these organizations.
With these facts in mind, some preliminary remarks are in order. Lavigne has been the salient case before the Supreme Court which has considered compelled association. Mr. Justice La Forest, for Sopinka J. and Gonthier J., found that freedom from compelled association was a distinct facet of freedom of association and that there was a breach of Lavigne’s rights, but it was overridden under section 1. Madam Justice McLachlin, for herself alone, acknowledged in the form of obiter dicta, at page 342, what amounts to freedom from association, but on the facts found that Lavigne’s payments did not bring him into an association with ideas and values to which he did not voluntarily subscribe. There was, she held, no breach. Madam Justice Wilson, for herself and L’Heureux-Dubé J. and Cory J., found that there was no right to freedom from compelled association. Considering this break-down, not only Mr. Justice La Forest’s opinion is relevant, but apparently equally so is Madam Justice Wilson’s, when a question of compelled association comes before the Court.
Madam Justice Wilson, in Lavigne, articulated her rejection, at pages 262-263 of the notion of freedom from compelled association, basically, in these passages:
As soon as the Court is placed in the position of having to choose between so-called meaningful and trivial constitutional claims, an opening for the exercise of arbitrary line drawing has been created. On the other hand, it would be an abdication of this Court’s responsibility to ensure access to justice if it turned a blind eye to the problems which recognition of a right not to associate will generate. Cognizant of these problems commentators have proposed various approaches designed to curb constitutional excesses. In the United States, for example, Professor Cantor in his article “Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association” (1983), 36 Rutgers L. Rev. 3, argues at p. 25 that:
… moral affront or upset to conscience from being used as a financial instrument is not, by itself, a serious constitutional injury. Indeed, such incursions upon conscience through forced “support” of distasteful causes is an inevitable concomitant of living in an organized society. While it would be nice to avoid all spiritual and ideological affronts to persons forced by government to pay monies, the critical issue for first amendment purposes is whether the payor is required to associate with or appear to endorse in some fashion a distasteful cause selected by government. [Emphasis in original.]
In Canada, similar limitations have been proposed in relation to s. 2(d). Professor Etherington, for example, has argued in his article, “Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to not Associate” (1987), 19 Ottawa L. Rev. 1, that what lies at the heart of the claim not to associate are interests in the preservation of the democratic political system and in the protection of individual liberty. Professor Etherington envisions four ways in which these interests might be endangered by forced contributions which a freedom of non-association should guard against: (1) government establishment of, or support for, particular political causes; (2) impairment of individual freedom to join or associate with causes of his or her choosing; (3) imposition of ideological conformity; and (4) personal identification of the individual payor with causes which he or she does not support.
In my view, Professor Etherington’s and Professor Cantor’s analyses both contain necessary and desirable limitations which must be affixed to any negative right to associate. And indeed, adoption of either approach would minimize the problems to which negative association rights can give rise. However, I remain of the view that s. 2(d) should not be expanded to protect the right not to associate. As Mr. Nelson suggested, other Charter guaranteed rights and freedoms adequately protect the type of interests which underlie claims based on a right not to associate. As was evident throughout this appeal, the real harm produced by compelled association is not the fact of the association itself but the enforced support of views, opinions or actions one does not share or approve. To hold that s. 2(d) does not include the right not to associate does not leave those who do not wish to associate without redress for these harms. Sections 2(b) and 7 of the Charter, in particular, would seem to me to be available in appropriate cases.
Having found that s. 2(d) includes only the positive freedom to associate, the question remains whether Mr. Lavigne’s freedom of association has been violated in this case. The appellant has not been prevented from forming or joining associations of his choosing. It is my view, therefore, that the appellant’s right to freely associate has not been infringed and this ground of appeal must accordingly fail.
Madam Justice McLachlin, having found no violation of Charter paragraph 2(d), went on to discuss the interests protected by it, thus, at pages 343-345:
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 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. For example, the compulsion to join the ruling party in order to have any real opportunity of advancement is a hallmark of a totalitarian state. Such compulsion might well amount to enforced ideological conformity, effectively depriving the individual of the freedom to associate with other groups whose values he or she might prefer. As La Forest J. suggests, at p. 318, “Forced association will stifle the individual’s potential for self-fulfillment and realization as surely as voluntary association will develop it.”
In my view, freedom from compelled association, whatever its ambit, could not extend to the payments here at issue. Freedom not to associate, like freedom to associate, must be based on the value of individual self-actualization through relations with others. The justification for a right not to associate would appear to be 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.
It follows from this definition that negative associational activity falling under s. 2(d) is not to be determined by the type of the coerced activity impugned (e.g. mandatory payments), but by whether the activity associates the individual with ideas and values to which he or she does not voluntarily subscribe. This approach is similar to that taken toward the right of expression in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, where it was held that the test for whether conduct falls within s. 2(b) of the Charter was not the activity per se (e.g. speech or conduct), but whether the activity was one intended to convey meaning.
If one accepts that the interest protected by the right not to associate is the interest in being free from enforced ideological conformity, then one cannot assume that payments fall within s. 2(d) simply because they be used to support a group cause. It is necessary to go further and ask whether the payments are such that they associate the individual with ideas and values to which he or she does not voluntarily subscribe. Applying an objective standard, the final test is this: are the payments such that they may reasonably be regarded as associating the individual with ideas and values to which the individual does not voluntarily subscribe? This is not to suggest that public identification is an essential prerequisite to any involuntary association: the point, rather, is that before any involuntary association can be said to arise, there must be activity which can fairly be adjudged to bring an individual into association with ideas or values to which he or she does not voluntarily subscribe.
In Lavigne, it is clear, that while McLachlin J. favours the existence of a concomitant freedom from association, she found in the circumstances that it was not breached by Mr. Lavigne’s being compelled to pay the union check-off.
After determining that there is a community interest in sustaining democracy, of which associational activity is an “essential element”, Mr. Justice La Forest found that, at pages 317-318:
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-fulfillment 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’ convictions and free choice ….
Furthermore, this is in keeping with our conception of freedom as guaranteed by the Charter. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Dickson J. had this to say, at pp. 336-37:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting on his own volition and he cannot be said to be truly free.
(This Court is constrained to observe that what Dickson C.J. appears to have meant is absolutely free. Humans are truly free in a democratic society even although they are obliged to obey the criminal law, the highway traffic law, the liquor control law, their employers, and to pay taxes; but, although truly free, they are not absolutely free according to what Dickson C.J. actually wrote. There is no surprise in that because the rights and freedoms are not absolute, but are limited by “grinding” on each other: thus one is not absolutely free to associate when one forms a conspiracy to harm others: one is not free to speak when one thereby incites hatred and murder against others. Self-fulfilment pales, and state coercion is welcome, as against the inherent wickedness and horror of those crimes.)
It is clear that a conception of freedom of association that did not include freedom from forced association would not truly be “freedom” within the meaning of the Charter .
This brings into focus the critical point that freedom from forced association should not be viewed in opposition, one “negative” and the other “positive”. These are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations ….
…
Governmental tyranny can manifest itself not only in constraints on association, but in forced association. [At page 319.]
After finding that the Charter’s paragraph 2(d) included freedom from compelled association, La Forest J. went on to find that Lavigne’s association with OPSEU was an associative act within the meaning of the right. The test for finding an associative act is this: “An external manifestation of some link between the individual and the association is not a prerequisite to the invocation of the right; it is enough that the individual’s freedom is impaired” (Lavigne, at pages 322-323). In that case, the question was whether forced payment to the union impaired Lavigne’s freedom. To determine this, one of the four aspects of association laid out in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 [hereinafter Alberta Reference], has to be impinged. Those aspects are the right to establish, belong to and maintain organizations, and to participate in their activities. La Forest J. noted that in the context of compelled association, the obverse applies: “one does not have to be forced to establish, belong to, maintain and participate in an association before the freedom becomes operative. Being forced to do any one of these things is sufficient” (Lavigne, at page 323). Unlike the United States, where freedom of association is part of the freedom of expression, Mr. Justice La Forest states that in Canada “We are not constrained by the text to define association in terms of expressive activity. Nor do I think that we are so constrained by the purpose and values underlying the freedom” (Lavigne, at page 322).
Mr. Justice La Forest found that Lavigne’s forced financial contribution was a breach of his right not to associate. In his analysis, he does concede that this right is a qualified one and that “To hold otherwise would be to deny the realities of modern society and would open the door to frivolous claims” (Lavigne, at page 324). La Forest J. adopts Justice Douglas’ view in International Association of Machinists v. Street, 367 U.S. 740 (1961), that when a person’s association with others is “compelled by the facts of life”, the government can create an association, within prescribed limits. Two examples Justice Douglas notes are people who are forced to use public transportation or those who by necessity live in public housing: “Legislatures have some leeway in dealing with the problems created by these modern phenomena” (Lavigne, at page 324 quoting Douglas [at page 776]). So, in determining whether there has been a breach it is up to the Court to decide when government intervention is permissible. The Court must be satisfied that the “‘compelled combining of efforts towards a common end’ is required to ‘further the collective social welfare’”. (Lavigne, at pages 328-329). According to La Forest J. the question is “whether in a particular case it is appropriate for the legislature to require persons with similar interests in a particular area to become part of a single group to foster those interests” (Lavigne, at page 328). He continues, at page 329:
Where such a combining of efforts is required, and where the government is acting with respect to individuals whose association is already “compelled by the facts of life”, such as in the workplace, the individual’s freedom of association will not be violated unless there is a danger to a specific liberty interest such as the four identified by Professor Etherington above.
The interests identified by Professor Etherington [in “Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to not Associate” (1987), 19 Ottawa L. Rev. 1] all centre around the individual’s freedom to associate with ideological or political causes.
This does not mean that La Forest J. restricted a breach of the association right in only these circumstances. In fact, he avoided adopting them wholesale. With respect to Professor Etherington’s interest, Mr. Justice La Forest noted in Lavigne, at pages 328-329 that:
There is much to be said for this approach to the freedom of association. However, it may also be argued that the values identified by Professor Etherington are merely some of the core values protected by s. 2(d), and that other values less central to the freedom may, in proper context, merit Charter protection. In either case, I am of the view that such an approach is only applicable once one has overcome the threshold issue I have identified earlier, namely, whether in a particular case it is appropriate for the legislature to require persons with similar interest in a particular area to become part of a single group to foster those interests. To put it another way, one must, to use Professor Etherington’s words, first be satisfied that the “compelled combining of efforts towards a common end” is required to “further the collective social welfare”.
As noted earlier, Mr. Justice La Forest’s opinion is that in Canada, “We are not constrained by the text to define association in terms of expressive activity. Nor do I think that we are so constrained by the purpose and values underlying the freedom” (Lavigne, at page 322).
With respect to ambit of the meaning of the associative right encapsulated in paragraph 2(d), La Forest J. adopted Mr. Justice Le Dain’s view in the Alberta Reference case: “meaning can only be given to s. 2(d) of the Charter in the context of the wide range of associations and activities to which the right must be applied. The right must be interpreted ‘in this larger perspective’” (Lavigne, at page 333).
Lavigne provides a comprehensive framework for analyzing freedom from compelled association. The points which can be extracted from the case are these:
1. Freedom from compelled association is a part of the freedom to associate.
2. The analysis must be applied to a wide range of associations.
3. The test for an associative act is to query whether one has been forced to establish, belong to, maintain or participate in the association: has the individual’s freedom been impaired?
4. If there be an association, is it one which would be “compelled by the facts of life”, that which permits government intervention?
5. If the tests be met, does the legislation compelling the association pass section 1 of the Charter?
The difficulty Lavigne presents for this Court is that the framework set out in Mr. Justice La Forest’s discussion is very broad. Under this analysis, the first question—is there an associative act which results in an impairment of freedom?—seems to comprehend almost anything mandated by legislation. As La Forest J. recognized, this would be absurd. He added a threshold: is the association “compelled by the facts of life”? The first question necessarily relies on the second. What this does is to force the courts to decide policy in an almost quasi-legislative rôle. Interpretation of and under the Charter requires this posture, as opponents foretold before and since 1982. Under this analysis it is up to the courts to decide what associations are and are not compelled by the facts of life. This is an area where this Court must tread cautiously. In the absence of a clear case, which is not the present case, the Court ought to defer to the policies of responsible government reified in legislation adopted inter alia by the elected House of Commons to which the government of the day is responsible, not least in matters of trade and commerce, and economic policies.
In this case, the legislation compels farmers living in the designated area to sell their grain to the CWB if they want to sell their grain in an extra-provincial market. This meets only semantically the test for an associative act set out in Lavigne because the evidence shows that the farmer has been, for all practical purposes, forced to participate. In Mr. Justice La Forest’s words, the farmer’s “freedom is impaired”. This is semantically, only verbally analogous to the situation in Lavigne. Lavigne was compelled to pay union dues. He was not a member. Farmers are compelled to sell their grain through the CWB’s single-desk monopoly if they want to get the value for their crop which is not available on the domestic feed market. They are not “members” of the Canadian Wheat Board, nor for the purposes of forced association analysis do they need to be. The only thing necessary is an “associative act”, with an impairment of freedom, and in this case the forced sale of grain to and through the Board’s monopoly fulfils this requirement only if Lavigne be misconstrued. That the alleged “association” is economic might not of itself be sufficient to find no breach because of Mr. Justice La Forest’s comment “Nor do I think that we are so constrained by the purpose and values underlying the freedom” (Lavigne, at page 322) and perhaps by the Alberta Reference case. Thus a second step must be taken before a breach is found.
The second aspect is whether this association is “compelled by the facts of life”. As noted above it is inherently dangerous for courts to dictate public policy. In this case, the question is not difficult because the Court can refer to and to some degree rely on the general principle that the Charter ought not to protect economic rights. Simply put, this Court finds that the CWB’s monopoly is “compelled by the facts of life”: it compels the combining of efforts to a common end. While it is a hard fact that farmers are not simply producers but are producers and marketers (all off-Board crops are marketed by the individual farmer which is not a new concept ever since the advent of agriculture between the Tigris and Euphrates), the Wheat Board’s pooling system and its monopoly over grain export are part of the federal government’s economic policy. Canadian society has accepted that the federal government will determine economic policy. This is an accepted “fact of life” in modern Canadian society. Proof of this lies in the existence of Canada’s parliamentary system with a democratically elected House of Commons, to which the government of the day is responsible. Should the government of the day favour free enterprise for the grain trade, it is open for it to do so. Governments should not be hamstrung in developing economic policy, whether in favour of collective or individual rights. Economic policy should be able to change, at least in theory, every four or five years. Not only is government control over the economy an accepted fact of life, the Charter should not—nay, cannot—be used as a shield to protect economic interest. No economic philosophy, either of the “right” or of the “left”, should ever become constitutionally entrenched by operation of the Charter. The foregoing idea is the reason for, and the result of, the Charter’s utter neutrality in matters of economic policy and measures, and trade and commerce.
In Lavigne the plaintiff/appellant was compelled to pay the equivalent of membership dues to an association of individual humans among whom and whose partisan utterances, Mr. Lavigne appeared to be co-opted as an anonymous, voiceless individual, and so, he was held to be personally associated compulsorily in the collectivity. In the case at bar there is no compulsory association, but rather, an arm’s-length statutory contract of sale of grain for money. The plaintiffs are not by means of their commodity, their grain, associated with the Wheat Board. They are not compulsorily associated with each other, but are manifestly free to form their preferred associations. The Act and Regulations do restrict their freedom, but it is an unprotected, non-guaranteed, economic freedom, which the Charter ignores, but which Parliament’s legislation restricts by agreement with a responsible government’s policy on trade and commerce.
The Supreme Court’s position wholly supports this interpretation of the Charter. To quote the oft-cited view of Mr. Justice McIntyre in the Alberta Reference case, supra, at page 412:
It is also to be observed that the Charter, with the possible exception of s. 6(2)(b) (right to earn a livelihood in any province) and s. 6(4), does not concern itself with economic rights.
As will be seen below, paragraph 6(2)(b) also conforms to this rule, of not being concerned with economic rights, especially in present circumstances.
Once Canada was freed from the baleful influence of the Judicial Committee of the Privy Council on the federal power in trade and commerce, a true constitutional balance emerged which inter alia permitted Parliament the freedom to lean “left” or “right”. In particular the state marketing monopoly exercised by the Canadian Wheat Board was upheld by the Supreme Court of Canada, as being a constitutionally legitimate exercise of federal power in Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada, [1958] S.C.R. 626, and by denial of leave to appeal, [1959] S.C.R. ix, in Queen (The) v. Klassen (1959), 20 D.L.R. (2d) 406 (Man. C.A.).
If delivering grain for remuneration from the single-desk marketer be an association with the Crown, then so is engaging in any other compulsory relationship with the state, such as obtaining a driver’s licence, or a notice of compliance under the Food and Drugs Act [R.S.C., 1985, c. F-27]. Whoever, of his or her own free will, wishes to drive a vehicle on the public highway, manufacture any drug for human consumption, or produce and sell grain for human consumption must first comply with the law enacted to regulate the activity. Compliance with such a law does not an “association” make.
Economic & Property Rights
Not Guaranteed
Indeed, the Canadian Charter of Rights and Freedoms was never intended to be, nor is it an instrument to protect commercial or property rights.
Economic liberty and property rights are not enshrined in the Charter. In fact, they were knowingly excluded from its ambit. As Peter Hogg notes in his Constitutional Law of Canada, 3rd ed. (Supplemented), Toronto: Carswell, 1992, “The framers of Canada’s Charter of Rights deliberately omitted any reference to property in s. 7, and they also omitted any guarantee of the obligation of contracts” (at page 44-8). He notes that this was done to “banish” Lochner v. New York, 198 U.S. 45 (1905) from Canada. In that case the United States Supreme Court found that attempts to impose minimum wages, health and safety standards and maximum hours of work were an interference of factory owners’ liberty. Professor Hogg made this comment about Lochner, at page 44-8:
As Oliver Wendell Holmes pointed out in his brilliant dissenting opinions, the Court used the Constitution to enforce a laissez-faire economic theory that had been rejected by the elected legislators. The Court had taken sides in a political conflict that was suitable for resolution only by elected legislators.
The protection of economic rights does exist in the Canadian Bill of Rights [R.S.C., 1985, Appendix III] (subject to due process of law) and did exist in the first draft of the Charter, which was tabled as Bill C-60 in 1978. Professor Michael Mandel, in The Charter of Rights and the Legalization of Politics in Canada, revised ed., Toronto: Thompson Educational, 1994, stated at pages 308-309 that.
… property did not make it into the final version of the Charter for at least two reasons. First, provincial governments and the NDP (more on the behalf of the NDP government of Saskatchewan than on behalf of socialism) insisted that it be dropped. The provinces had the major jurisdiction over property, and they naturally feared federal judicial interference, especially in the realm of natural resources (Sheppard and Valpy, 1982:151) ….
The second factor was the ideology of the Charter itself, as it appeared, for example, in the brief of the Canadian Bar Association to the Joint Committee. Anticipating the Supreme Court of Canada in the Right to Strike cases, the lawyers argued that “economic rights are not appropriate for protection in a Bill of Rights, that this question, too, is fundamentally one for the legislatures” (Canada, 1980-81, Issue No. 44: 27).
In his chapter “A Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights” in Canadian Charter of Rights and Freedoms , 2nd ed., Beaudoin & Ratushny, eds., Toronto: Carswell, 1989, Professor Hogg made another pertinent observation, at page 16:
But the omission of property rights from the list of protected rights is certainly significant. Aside from any guarantee in the Bill or the Charter, there is no requirement of Canadian constitutional law that a compulsory taking of property be effected by a fair procedure or that it be accompanied by fair compensation to the owner. Section 1(a) of the Canadian Bill of Rights undoubtedly imposes a requirement of a fair procedure, and may also impose a requirement of fair compensation. The “due process” clause in the Fourteenth Amendment of the United States Constitution, which protects “life, liberty, or property”, has been held to impose a requirement of fair compensation for property expropriated. It is possible that Canadian courts would give the similar language of section 1(a) a similar interpretation. The Charter by contrast provides no guarantee of even a fair procedure, let alone compensation, for the expropriation of property. [Footnote omitted.]
Several things are clear. The Charter has never before and still does not protect economic liberty or property rights. A deliberate choice was made to exclude them from the document. No form of economics, laissez-faire or otherwise, is part of the Constitution. It is up to the democratically elected government of the day to decide under what economic system Canadians will conduct their business affairs.
Those who assert that the Charter guarantees Canadians freedom to deal with their own property as they wish are flying in the face of the unvarnished truth that the Charter does not even contain a freedom from state confiscation of Canadians’ property. The common law may exact compensation for forcible taking of property, but without Charter protection, could the common law withstand direct legislative abolition? Even if compensation be accorded, such forcible taking still amounts to expropriation. Where in the Charter is there a right to be free from expropriation? The Canadian Bill of Rights, R.S.C., 1985, Appendix III, expressed notably different provisions, such as:
1. … the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
…
(e) freedom of assembly and association; …
…
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
…
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
The Canadian Bill of Rights, if invoked, might have been relevant at first blush, if applicable ultimately, but the plaintiffs’ access to this Court without hinderance and their authoritative calling upon the defendants to respond to their claim, and the resulting trial would surely qualify as a fair hearing in accordance with the principles of fundamental justice, as well as due process of law. As to the latter, the open, public enactment of the CWB Act by a majority of the elected House of Commons, (the major organ of Parliament) in the usual course of legislation, ensures compliance with the above provisions of the Canadian Bill of Rights. Although paragraph 2(e) of the Canadian Bill of Rights appears to be of somewhat wider scope than that of the Charter’s section 7, yet if the procedural safeguards expressed in the Canadian Bill of Rights be observed, no valid complaint can be mounted under it.
Charter subsection 6(2)
The impugned provisions under this part are section 45 and Parts III and V of the Canadian Wheat Board Act.
It will be noted that the Charter’s paragraph 6(2)(b) guarantees the right to move around within Canada and to pursue the gaining of a livelihood, not the right to a livelihood itself. This is clearly the view of the Supreme Court of Canada. The two landmark cases on mobility rights are Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; and Black v. Law Society of Alberta, [1989] 1 S.C.R. 591. In Skapinker, the problem before the Court was whether a non-citizen could lawfully be prohibited from joining the Law Society of Upper Canada on the basis of his citizenship. The facts in the Black case were that a Calgary-based law firm wanted to join into a partnership with an Ontario-based law firm in order to establish an interprovincial law firm. This would mean that the Ontario-based lawyers would be non-resident members of the Law Society of Alberta. The Law Society of Alberta enacted two rules to prohibit this: members who ordinarily resided in Alberta could not enter into a partnership with anyone who was not an active member ordinarily resident in Alberta, and members of the law society could not be a member in more than one firm. In both the cases the rules prohibiting practice were alleged to have breached paragraph 6(2)(b) under the Charter.
The reason for the existence of the section 6 rights was succinctly put by Deschênes C.J.S.C., in Malartic Hygrade Gold Mines (Quebec) Ltd. c. R. (Québec), [1982] C.S. 1146; (1982), 142 D.L.R. (3d) 512 (Que. S.C.), at pages 520-521 (D.L.R.):
[translation] The purpose of this provision is undoubtedly to give Canadian citizenship its true meaning and to prevent artificial barriers from being erected between the provinces ….
…
In principle the Charter thus intends to ensure interprovincial mobility.
The above passage was approved by Mr. Justice Estey in Skapinker (at page 381) and by Mr. Justice La Forest in Black (at pages 615-616). As Justice La Forest noted (for a majority of the Supreme Court) in Black, at pages 610-611, the Supreme Court had already recognized that Canadian citizenship included an inherent mobility right which could not be denied by provincial legislation in Winner v. S.M.T., [1951] S.C.R. 887, which was the culmination of a line of cases stemming from Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580 (H.L.).
La Forest J. also found that one major reason for the existence of the right in the Charter was the federal government’s concern “about the growing fragmentation of the Canadian economic union” (Black, at page 612). More important, however, is the following statement: “But citizenship, and the rights and duties that inhere in it are relevant not only to state concerns for the proper structuring of the economy. It defines the relationship of citizens to their country and the rights that accrue to the citizen in that regard” (Black , at page 612).
Paragraph 6(2)(b) is clearly aimed at an individual’s mobility (Skapinker, supra, at page 380) and that person’s ability to pursue a livelihood. It does not, however, provide a free-standing right to work. In Skapinker, Mr. Justice Estey, speaking for a unanimous court, wrote, at page 380:
The concluding words of s. 6(3)(a), just cited, buttress the conclusion that s. 6(2)(b) is directed towards “mobility rights”, and was not intended to establish a free standing right to work. Reading s. 6(2)(b) in light of the exceptions set out in s. 6(3)(a) also explains why the words “in any province” are used: citizens and permanent residents have the right, under s. 6(2)(b), to earn a living in any province subject to the laws and practices of “general application” in that province which do not discriminate primarily on the basis of provincial residency.
While not expressly stated by Estey J., this Court notes that this position is entirely consistent with the Charter’s exclusion of economic and property protection as discussed above in the paragraph 2(d) discussion, notwithstanding Mr. Justice McIntyre’s obiter expression regarding the possible economic aspect of paragraph 6(2)(b) in the Alberta Reference, recited supra.
Respectfully, this Court disagrees with Madam Justice Hunt’s reasoning, but not the ultimate decision, in the Northwest Territories Court of Appeal, in the CEMA case, cited supra, where she stated, at page 225 that:
The “mobility” right in s. 6(2) necessarily has an economic content. It is a right that has been given constitutional protection. When an aspect of that right (which itself has an economic character) gives rise to the question of freedom of association, it would be wrong in principle to foreclose the associational right on the ground that it is economic. [Emphasis in original.]
With respect, there is no basis to meld an economic element into the right. As noted earlier, this Court has rejected the notion that economic and property rights are protected by the Charter. As the following analysis will show, this principle holds true for the paragraph 6(2)(b) right.
In the CEMA case, Madam Justice Hunt seems to have premised her assertion that paragraph 6(2)(b) has an inherent economic content on the judgment of the Supreme Court of Canada in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712. In Ford, which dealt with the Charter of the French Language, R.S.Q., c. C-11 (one of the sign law cases), the Supreme Court found no basis to exclude commercial expression from paragraph 2(b) of the Charter. The unanimous Court stated, at page 767 that:
Over and above its intrinsic value of expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfillment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.
Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. We are not asked in this case to deal with the distinct issue of the permissible scope of regulation of advertising (for example to protect consumers) where different governmental interests come into play, particularly when assessing the reasonableness of limits on such commercial expression pursuant to s. 1 of the Canadian Charter or to s. 9.1 of the Quebec Charter.
This should not be taken as anything more than a recognition that the economic aspect of the freedom of expression is important and that an economic component is not itself enough to disable the freedom of expression. More importantly, the fundamental questions which are asked when a paragraph 2(b) right is at stake vastly differ from those which are part of a paragraph 6(2)(b) inquiry. Freedom of expression and mobility rights are discreet and stem from very different historical underpinnings. For this reason, even if it can be said that the Supreme Court has decided to safeguard economic rights in the context of freedom of expression, this proposition should be restricted to that section. The CEMA case, relied on by the plaintiffs is rather far afield from the case at bar.
The plaintiffs’ counsel take comfort from Madam Justice Hunt’s assertion, at page 221 of the CEMA case that, despite the Supreme Court’s reiteration that forming an association is a guaranteed freedom, its activities are not so guaranteed (Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367, at page 402), “even without the right to strike, presumably the ‘association’ (the union) could accomplish other activities. In that context, the distinction between the association and the activity makes sense; in the context of this case it does not.” That conclusion is not abundantly clear, if at all. The egg marketers’ association could attempt to form public opinion, to lobby MPs, to press their case on the cabinet and to go to law, for a few examples, short of marketing eggs in the provinces. The plaintiffs argue that the judgment interprets the Charter to secure economic rights under paragraphs 2(d), 6(2)(b) and subsection 15(1). Respectful as this Court may be, it is not bound by the decisions of provincial or territorial courts of appeal, unless the Supreme Court of Canada has declined to accord leave to appeal which adds much weight to the decision of an intermediate appellate court.
There is no question that the right to pursue the gaining of a livelihood is closely linked to earning a living, which is fundamentally economic. If paragraph 6(2)(b) does not include a free-standing right to work—which is clearly an economic aspect of the right—and this is the opinion of a unanimous court in Skapinker , then the economic aspect of the right can and should be severed when the Court examines a complaint under this paragraph.
What then is a severable economic aspect of the paragraph 6(2)(b) right? To start, a brief coda to the previous discussion under paragraph 2(d) is helpful: property rights are not protected. Next, because Skapinker indicates that a free-standing right to work does not exist, that would be a severable economic aspect. Aside from these two examples, it is not for this Court to map out each and every possibility. Ultimately it will vary on the circumstances. In simple terms, paragraph 6(2)(b) protects one’s ability to try to earn a living. The right does not guarantee that one will succeed (or even not starve) or that legislation cannot be enacted which regulates how a person earns his or her living.
Justice Estey’s comments which define the paragraph 6(2)(b) right as a mobility right were echoed and approved by Mr. Justice La Forest in Black at page 622. Justice La Forest also made this pertinent remark, at pages 617-618:
The cases have raised a further issue, namely, whether a particular claim is protected by the phrase “to pursue the gaining of a livelihood”. Arnup J.A., dissenting in the Court of Appeal in Skapinker, supra, made passing reference to this at pp. 514-15. “The permanent resident who goes to another province, he stated, “has a right to pursue the gaining of a livelihood there, whether that person is a lawyer or a Class “A” mechanic, but must comply with the local laws concerning the qualifications of all lawyers or all mechanics (except laws discriminating on the basis of past or present province of residence).” I agree. Section 6(2)(b), in my view, guarantees not simply the right to pursue a livelihood, but more specifically the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents.
He went on to write, at pages 620-621:
What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries. The provinces may, of course, regulate these rights (as Skapinker holds). But, subject to the exception in ss. 1 and 6 of the Charter, they cannot do so in terms of provincial boundaries. That would derogate from the inherent rights of the citizen to be treated equally as a citizen throughout Canada ….
There is, however, no doubt that a person can pursue a living in a province without being there personally.
From Skapinker and Black, it can be taken that the Supreme Court’s view is this. Section 6 was included in the Charter to provide Canadian citizens the general right to move anywhere in the country to pursue a livelihood of their choosing. Legislation which restricts a person from attempting to pursue the gaining of one’s livelihood will breach paragraph 6(2)(b), unless it is saved by subsection 6(3). As well, one does not need personally to live in a province in order to pursue the gaining of a livelihood there.
In the CEMA decision, at page 219, Madam Justice Hunt held that the case of Milk Bd. v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279 (B.C.C.A.); leave declined [1989] 1 S.C.R. xi, might “at first blush” offer some guidance, but that it was to be distinguished. It was “decided very early in the life of the Charter and whatever it has to say about the Charter must be considered in the context of later Supreme Court decisions, especially the Public Service Reference” (cited as the Alberta Reference above). That “later decision” was rendered by the Supreme Court on April 9, 1987 (S.C.R., page 313), but the “earlier” decision to refuse leave in the Milk Board case is recorded to have been made on June 8, 1989. So more than two years after the Alberta Reference judgment, the British Columbia Appeal Court’s decision in the Milk Board case was affirmed by the refusal of leave to appeal to the Supreme Court.
The Milk Board judgment does indeed provide guidance. Mr. Justice Seaton for the Court outlined the issues ([1987] 4 W.W.R. 279, at pages 281, 284, 285, 288), thus:
The first [proceeding] (No. A851874) was started by the Milk Board against Clearview Dairy Farm Inc. on 6th August 1985. In that proceeding Toy J. ordered:
… that the Defendant be permanently restrained and prohibited from engaging in the marketing in British Columbia of any class or grade of qualifying milk, as defined by the Milk Industry Act, R.S.B.C. 1979, C. 258, and which is produced at the Clearview Dairy Farm, 8954-280th Street, R.R. #6, Langley, British Columbia, or elsewhere in the areas of production, as defined by the Milk Industry Act, unless and until the Defendant is in possession of a current licence issued by the Plaintiff.
The second [proceeding] (No. A851890) was launched by way of petition on 7th August 1985 by Clearview naming the Milk Board as respondent. Clearview sought a declaration that the system for regulating industrial milk contravenes the Canadian Charter of Rights and Freedoms, a declaration that the Milk Board could not withhold a producer’s licence from the petitioner, and an order in the nature of mandamus requiring the Milk Board to issue a producer’s licence to the petitioner. Toy J. dismissed the petition.
Clearview appeals from both decisions.
The Attorney General of British Columbia has intervened pursuant to s. 8 of the Constitutional Question Act, R.S.B.C. 1979, c. 63.
…
The tone of the argument on behalf of Clearview was established at the outset:
This appeal will determine whether residents of British Columbia are entitled to engage in the dairy processing industry (either as producers or as manufacturers of dairy products such as cheese) beyond the restrictions imposed on this industry by the Canadian Milk Supply Management Committee (”CMSMC”) and the Milk Board. These agencies have set in place a scheme whereby residents of B.C. are restricted to producing no more than 30% of the dairy products consumed in British Columbia. If that restriction is valid this appeal fails. However, if this Court declares that restriction to be invalid, a fundamental freedom will be restored not only to the Appellant but to a great many others—mostly young and eager entrepreneurs—who are waiting to create a new and exciting dairy processing industry in the Province of British Columbia.
The Milk Board is attempting, like King Knut, to hold back a tide which we say cannot be held back. That is the tide of free entreprise and economic growth in British Columbia. We say it cannot be held back because it is constitutionally invalid as an overreaching of federal authority, and also that it is contrary to s. 15 of the Charter which guarantees equality before the law to every Canadian citizen regardless of province of residence. We say that the allocation by the CMSMC of only 3.7% of the national industrial milk quota to B.C. is outrageously unfair and discriminatory, and cannot be saved by sec. 1 of the Charter. It is inconsistent with the basic tenets of a free and democratic society in which federal laws are meant to be applied evenly across the country without regional discrimination.
That vigorous attack on the Milk Board was not supported by the evidence accepted by the trial judge.
…
That section [95, Constitutional Act, 1867] seems to contemplate the sort of co-operation that the federal and provincial governments have been demonstrating. But decisions of the Privy Council, particularly Lower Mainland Dairy Prod. Sales Adjustment Ctee. v. Crystal Dairy Ltd., [1933] A.C. 168, [1932] 3 W.W.R. 639, [1933] 1 D.L.R. 82 [B.C.]; A.G. for Sask. v. A.G. for Can., [1949] A.C. 110, [1949] 1 W.W.R. 742, [1949] 2 D.L.R. 145; and Can. Fed. of Agriculture v. A.G. Que., [1951] A.C. 179, [1950] 4 D.L.R. 689, have severely restricted the section. Only the Supreme Court of Canada can revitalize it.
…
We must not reintroduce the inflexibility of the earlier Privy Council decisions or disregard the approval of a similar scheme in Ref. re Agricultural Prod. Marketing Act.
The Milk Board can also rely on provincial enactments. Whether the board arrives at a total volume of industrial milk by agreement with other provinces under the national scheme, or arrives at a total volume by assessing an unregulated market-place, it has the power to divide the result in the manner that it is now dividing it.
My tentative view is that the Milk Board is exercising provincial jurisdiction solely when it assigns M.S.Q. [quota] to individual farmers but, if that is wrong, the effect of the federal enactments is to add its jurisdiction thereunder to the power of the Milk Board derived from the province and the result is the same.
I would reject this argument.
VI
For Clearview it is said that the present scheme is contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms.
I agree with Toy J. that no s. 15(1) right is infringed. I do not agree with him that a corporation is within s. 15(1): first, because a corporation is not an individual; and secondly, because a corporation has no race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, nor any other comparable quality.
Finally, Clearview’s counsel brought together all the Charter arguments and all of the criticisms of the marketing system in an attack on the board’s interference with the freedom of Clearview to enter into contracts to sell milk where it sees fit. Together the arguments challenge regulation of industry. If accepted, they lead to the conclusion that unregulated free enterprise is entrenched in our Constitution. That, in the end, is what the Charter arguments amount to and I reject them.
VII
I would dismiss the appeal.
There was a clear invitation to the Supreme Court of Canada to hear an appeal on issues which the plaintiffs raise here, but the Supreme Court declined to hear the appeal, thus permitting the judgment of the British Columbia Court of Appeal to stand as an authority.
The facts before the Court are this: none of the producers pro and con who testified complained about being prevented from pursuing the gaining of a livelihood. The plaintiffs speculated that they could each gain a better or more affluent livelihood if only freed of the CWB monopoly. The defendants’ counsel elicited from each of the plaintiff witnesses the fact that nothing in the impugned, or any, law prevents such witness from taking up residence in any other province. It may not be wise or desirable for them to do so, economically or otherwise, but the Act does not prohibit this. If the plaintiffs choose to reside in a province covered by the designated area, they must abide by the rules which apply to the area, since they choose to pursue farming as a livelihood, as long as these rules do not, in effect, act to stifle an attempt to pursue their livelihood. On the evidence, the Court finds that the Wheat Board Act does not restrict any of the plaintiffs from pursuing the gaining of a livelihood in any province by virtue of their residence in one of the provinces in the designated area.
Here is the principal evidence given by plaintiffs in their testimony. Brian Otto admitted that he did not want to move from Alberta for sentimental reasons and because he did not want to relearn all of the nuances of farming in a new area (transcript: Vol. I, at page 65). Mr. Harvie freely admitted he could move (transcript: Vol. III, at page 346). Paul Orsak testified that nothing in the Canadian Wheat Board Act prevented him from moving out of the designated area (transcript: Vol. IV, at page 492). Conrad Johnson actually moved from the United States into the designated area, even though he did not know what exactly the Wheat Board was at the time, because good opportunity existed there (transcript: Vol. VII, at page 727). Plaintiff Cawkwell stated that there was no legal prohibition barring him from moving (transcript: Vol. VII, at page 810). Finally, Mr. Dobranski, after working as a grain trader in Surry, British Columbia, chose to move back into the designated area because land prices were lower. He was fully aware of the CWB’s monopoly (transcript: Vol. XIII, at pages 1316-1317).
There is one outstanding issue which must be addressed to dispose satisfactorily of the mobility plea. The facts are that the Wheat Board Act does mandate how Board grains are marketed. The plaintiffs have shown that they as individuals could do better on their own. Does any disadvantage constitute an impairment of one’s ability to pursue a livelihood? This is an issue because of the Mia and Medical Services Commission of British Columbia, Re (1985), 17 D.L.R. (4th) 385 (B.C.S.C.) case, which held that the Medical Services Commission of British Columbia’s refusal to issue a billing number to qualified physician could infringe the paragraph 6(2)(b) because the pursuit of gaining of a livelihood was interpreted as meaning “the right to practice on a viable economic basis” (Mia, at page 408).
It has been suggested by Madam Justice Hunt in the CEMA case that La Forest J. approved of this view in Black. Among Justice La Forest’s comments on Mia is this excerpt, at pages 618-619:
With respect to s. 6, he [Mr. Justice McEachern, now the Chief Justice of British Columbia] suggested that one need not be completely cut off from a particular livelihood for a violation to exist. It was sufficient if a person was disadvantaged in the pursuit of that livelihood …. The argument that the petitioner was not disadvantaged by the denial of a billing number because she could require her patients to pay her directly was quickly, and in my view, correctly rejected. It is unrealistic to expect patients who have medical insurance to obtain the services of a doctor whose services are not covered by the medical plan. The denial of a billing number realistically precluded the petitioner from pursuing her livelihood of choice in the place of her choice. The phrase in s. 6(2)(b), “to pursue the gaining of a livelihood” was construed to mean “the right to practice [sic] on a viable economic basis” (p. 408): see also Wilson v. Medical Services Commission of British Columbia (1987), 9 B.C.L.R. (2d) 350.
It is important for the courts to look at the substance of provisions, which on their face do not appear to affect the pursuit of the gaining of a livelihood and ensure that these provisions are not for practical purposes rendered impotent.
It is important to keep in mind the context in which the remark was made and the point La Forest J. was making. Justice La Forest prefaced the above statement thus [at page 618]:
Denying non-residents access to some fields cannot be condoned, for the purposes of section 6(2)(b), by the fact that some job positions are still left open to non-residents. The right to pursue this livelihood of choice must remain a viable right and cannot be rendered practically ineffective and essentially illusory by the provinces. The point may be illustrated by Re Mia and Medical Services Commission of British Columbia, (1985), 17 D.L.R. (4th) 385 …
It is this Court’s opinion that Mr. Justice La Forest did not interpret the right encapsulated in paragraph 6(2)(b) to include an assessment of how economically viable one’s pursuit of a livelihood will be. La Forest J. was using the facts in Mia, where the provincial government’s position that physicians who moved to British Columbia did not need billing numbers because they could be paid directly, was rejected, in order to illustrate the point that insincere pro forma attempts by a government to placate the Charter will result in a breach. It is an all or nothing proposition: is there, for all practical purposes, a denial of one’s mobility right to pursue the gaining of a livelihood? It cannot be “how economically disadvantageous is it for someone to pursue that gaining of a livelihood?”. That would open up innumerable provincial schemes to Charter scrutiny on a solely economic basis, which this Court has already rejected (above) as not being part of the paragraph 6(2)(b) right. How is the Court to determine what an “economic disadvantage” is? Do all Canadians have a constitutional guarantee to become wealthy? Or to avoid failing in the gaining of a livelihood? A “livelihood” is not constitutionally guaranteed.
Even if this approach be wrong and the degree of economic disadvantage should be weighed, the evidence brought before the Court has not shown that the plaintiffs have been denied the right to market their produce on a viable economic basis, by marketing through the CWB. It is far, far from confiscation, and certainly does not impinge one’s mobility into and out of the designated area.
The individual plaintiffs all produce grain in the designated area because, although some wheat and barley can be, and are, grown in Quebec, and perhaps also the Atlantic provinces and perhaps also on the western slopes of the Rockies and (west) coastal ranges, it is the designated area in which it is most natural, efficient and economic to grow that grain. All producers of grain in the designated area are treated alike—nay, the same—under the impugned law. To market their grain extraprovincially, they must simply do so through the Board, which markets the grain on behalf of all producers in the designated area. The designated area is no “great wall” and does not impede any mobility.
Clearly there has been no demonstrable breach of the plaintiffs’ rights guaranteed by subsection 6(2) of the Charter.
For these reasons, the Court finds no basis for the plaintiffs’ plea for declaratory relief, under paragraph 6(2)(b) of the Charter, to succeed.
Charter subsection 15(1)
The plaintiffs assert a third breach of their Charter rights under subsection 15(1). It is their plea that the subsection 2(1) definition of “designated area” and Parts III and V of the Act create a distinction between them and farmers who do not reside in the designated area. Subsection 15(1) of the Charter guarantees individuals equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. It 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.
The foundational approach to subsection 15(1) analysis was set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and refined by Chief Justice Lamer in R. v. Swain, [1991] 1 S.C.R. 933, at page 992:
The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, … the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
The first inquiry set out by Chief Justice Lamer is straightforward. Has the plaintiff been denied either equality before the law or under the law? The second inquiry has been gradually developed by the courts. Originally, in Andrews, at page 175, McIntyre J. held the grounds enumerated under subsection 15(1) “are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition”. The basis he developed for determining when a new ground would qualify as analogous was based on whether the discrimination was founded on immutable personal characteristics (page 175). In R. v. Turpin, [1989] 1 S.C.R. 1296, Madam Justice Wilson, relying on Justice McIntyre’s reasons at page 183 of Andrews, asked whether the person alleging discrimination was of a “discrete and insular minority” (page 1332). More recently, La Forest J. found judicially, if not anthropologically, that homosexuality is an immutable characteristic, in Egan v. Canada, [1995] 2 S.C.R. 513.
In the CEMA case Madam Justice Hunt followed the early approach of the Supreme Court in Turpin and Egan in finding that egg producers in the Northwest Territories were not a discrete and insular minority, and their residence was not an immutable characteristic (page 233). She based her finding on the fact that the egg producers were not a group which suffered from stereotyping or social prejudice, or had suffered historical disadvantage or historical prejudice.
The case of Miron v. Trudel, [1995] 2 S.C.R. 418, signalled a change in the general approach taken with respect to analogous grounds under subsection 15(1). Madam Justice McLachlin expressed dissatisfaction with what was becoming an overly categorical approach and made a return to what she identified as the underlying principle of indicia of analogous grounds under subsection 15(1). At page 497 she wrote:
… while discriminatory group markers often involve immutable characteristics, they do not necessarily do so. Religion, an enumerated ground, is not immutable. Nor is citizenship, recognized in Andrews; nor province of residence, considered in Turpin. All these and more may be indicators of analogous grounds, but the unifying principle is larger: the avoidance of stereotypical reasoning and the creation of legal distinctions which violate the dignity and freedom of the individual, on the basis of some preconceived perception about the attributed characteristics of a group rather than the true capacity, worth or circumstances of the individual.
The effect of Miron is that the Court is directed to consider whether the distinction will engage subsection 15(1) by preventing “the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance” (pages 486-487).
The plaintiffs make two submissions under subsection 15(1) of the Charter. The first is that they are discriminated against on the basis of residence in the designated area, which is an analogous ground under subsection 15(1). The second ground is that “farmers [the plaintiffs] whose highest and best crop (or the crop they must resort to for agronomic reasons) is [sic ] treated differently under law than other farmers in Canada whose highest and best crop is other than wheat and barley” (plaintiffs’ post-evidence memorandum of fact and law, at page 118). In other words, they assert that regional differentiation between Canadian farmers as created by the designated area under the Canadian Wheat Board Act amounts to agronomic or demographic discrimination and is an analogous ground under subsection 15(1).
The plaintiffs’ first submission is discrimination based on geographical location, which has been before the courts in the more specific form of “province of residence”. Province of residence has been acknowledged by the Supreme Court to be a possible analogous ground of discrimination, although to date it has not been successful. In Turpin, noted supra, Madam Justice Wilson found that a provision which allowed the accused in a murder trial in Alberta to elect a trial by judge alone, a provision not available in other provinces, denied the appellant’s right to equality before the law. Madam Justice Wilson, at pages 1332-1333 found this denial was without discrimination and was not an analogous ground because:
… it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427 of the Criminal Code in all the provinces except Alberta as members of a “discrete and insular” minority …. Differentiating for mode of trial purposes between those accused of s. 427 offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of s. 15 in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society.
She then stated that she “would not wish to suggest that a person’s province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination” (page 1333). The facts in Turpin were simply not persuasive enough. Noted also is R. v. S. (S.), [1990] 2 S.C.R. 254.
In Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, which dealt with Charlottetown Accord referendum, the appellant challenged the Quebec electoral law which did not allow people to vote who were not residents of Quebec six months prior to the referendum. The appellant also challenged federal legislation which denied him a chance to vote because he was not ordinarily resident in a polling division established for the federal referendum on the enumeration date. One of the appellant’s submissions was that a person’s place of residence was a personal characteristic which was an analogous ground of discrimination under subsection 15(1) of the Charter. Madam Justice L’Heureux-Dubé found for the majority of the Supreme Court that “Though this may well be true in a proper case, this case is not such a case. It would require such a serious stretch of the imagination to find that persons moving to Quebec less than six months before a referendum date are analogous to persons suffering discrimination on the basis of race, religion or gender” (page 1044, emphasis in original).
As noted above, the focus of the inquiry under Miron is whether the ground of discrimination a plaintiff asserts is analogous and results in a denial of his or her human dignity and freedom. To this Court’s knowledge, the only case to consider “geographical distinction” as an analogous ground post-Miron is Wong v. Canada, [1997] 1 F.C. 193(T.D.). The question in that case was whether a provincial disparity in pay rates under a collective agreement breached subsection 15(1) of the Charter. Province of residence was the analogous ground pleaded. In Wong, Mr. Justice Rothstein noted Professor Dale Gibson’s assertion [in The Law of the Charter: Equality Rights] that a province of residence may be immutable at an “unacceptable cost”, but found that this does not address the question of human dignity and freedom as stated in Miron. Applying Miron, Mr. Justice Rothstein found that it was “difficult to think that a challenge involving a provincial disparity in bargained rates of pay would, without some further evidence, raise a question of a violation of human dignity or freedom” (page 202).
Of particular interest to this case is that Rothstein J. found that “Notwithstanding that the argument is couched in terms of an arbitrary stereotype, the crux of the plaintiffs’ claim is purely economic” (page 203). He went on to write, at page 203:
… I have before me a claim under subsection 15(1) which is based on an economic disparity without any evidence of any further basis for a finding of discrimination. The Supreme Court has taken a clear position with respect to economic interest. As observed by McIntyre J. in Reference Re Public Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ….
In this case, the plaintiffs have shown that the “designated area” as defined in subsection 2(1) of the Canadian Wheat Board Act applies only to farmers resident in Manitoba, Saskatchewan, Alberta and the Peace River and Creston-Wyndel areas of British Columbia. This demonstrates that the impugned provision denies equality before the law because Part III of the Act applies only to farmers resident within the designated area who wish to market non-feed wheat and barley. The first inquiry set out in Swain, supra, is satisfied.
The plaintiffs’ first submission, however, fails to prove that their residence in the designated area is an analogous ground which denies the plaintiffs their human dignity or freedom. While the Court accepts that the “designated area” is sufficiently similar to a “province of residence” in terms of attempting to make out an analogous ground on the basis of geographical distinction, the facts in this case are no closer to making out a discrimination claim on the basis of geographical location than they were in Wong. Parliament’s definition of the designated area in no way singles out western Canadian farmers in a manner which negatively impacts on their fundamental human dignity or freedom. It must be said that the plaintiffs tendered no evidence which could establish such an impact.
Perhaps the plaintiffs would have been more successful if it were their position that their commitment to free market enterprise engaged a personal human dignity (akin to political belief) or that the freedom to market their wheat and barley in a manner of their own choosing was an analogous ground which ought to be protected under subsection 15(1). Leaving the economic aspect aside for the moment, the plaintiffs’ lead counsel denied that this was the case. Mr. Groves stated (transcript: Vol. I, at pages 33-34):
Colourful in my mind, My Lord, was the characterization of the plaintiffs or the attempt to characterize the plaintiffs as something called “absolutist libertarians”. My Lord, I ask Your Lordship to keep in mind both questions in relation to this characterization: Is this relevant? Is this true?
For the reasons that the defendants are raising it, I will call upon the Court to entertain in leading the evidence from the plaintiffs the roots that they have in the communities in which they live. And you will find they have very diverse political views and allegiances, that they are hockey coaches, that some of them vote Liberal, some of them vote Progressive Conservative, some of them Reform, some of them don’t vote at all, one doesn’t vote in Canada he is an American—landed immigrant American citizen. They are very diverse. They are active on the PTA. They are active in other ways, such as teaching.
Thus the plaintiffs disclaimed this possible analogous ground. Even if they had not, their claim would still be rooted in economic grounds, a proposition rejected in Wong and by this Court for reasons noted previously. “The fun of being a businessman” (transcript: December 11, 1996, at page 3664) is not a human freedom or dignity protected by subsection 15(1) of the Charter.
Even under the pre-Miron test the plaintiffs’ submission fails. There was no evidence brought before the Court which proved that the plaintiffs, as farmers who reside in the designated area, were a discreet and insular minority who are discriminated against on the basis of irrelevant personal characteristics. This is consistent with Madam Justice Hunt’s finding in the CEMA case, at page 233 that egg producers’ residence in the Northwest Territories was not an immutable characteristic and that:
… it would be fruitless to search for indicia such as historical disadvantage because what we are comparing is the position of egg producers in the Northwest Territories with the position of egg producers who live elsewhere. As in Turpin, it is my opinion that recognizing a s. 15 claim here would be to overshoot the actual purpose of the right or freedom in question.
On the facts of this case, this Court rejects the submission that geographical distinction is an analogous ground.
The plaintiffs’ second submission based on agronomic or demographic distinction is unprecedented in terms of whether it is an analogous ground, but as Madam Justice McLachlin emphasized in Miron, the categories of analogous grounds under subsection 15(1) of the Charter are not closed. The nuance in their position arises from drawing (or implying) a distinction between alleged geographically based discrimination, and discrimination based on the character of their occupations, or the agronomic character of their lands. In short, they seem to assert that the activity of farming is homogenous to an extent that it is repugnant to the equality guarantee in subsection 15(1) that one farmer should be treated differently from another on a national basis. Clearly, this argument cannot fail to be premised on primarily economic grounds. Common sense shows that the designated area is the principal grain-growing area of Canada. Agronomic equality is not a Charter right.
It is perhaps more difficult under this second ground than the first to see how the plaintiffs can make a link to the principles enunciated in Miron. Again, the plaintiffs have failed to lead any evidence which indicates that this effect the Canadian Wheat Board has on them in any way violated their “human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance” (Miron, supra, at pages 486-487). The plaintiffs’ testimony about their attachment to their particular farming land in the designated area, noted earlier above, tells also against their submissions here. They have lost no human dignity and they check their own freedom of mobility by attachment to their land, and declining to move anywhere else.
It is clear then to this Court that invocation of section 15 of the Charter, with its guaranteed equality before and under the law, its equal protection and benefit of the law, and its rendering unlawful of discrimination cannot be successfully raised here. As for analogous grounds regarding race, national or ethnic origin, colour, religion, sex, age or mental or physical handicap, such were not even raised by the plaintiffs, no doubt because they are non-existent grounds in the plaintiffs’ case.
Charter section 1
The plaintiffs’ action should therefore fail, but if the Court will be held to have misapprehended the law, there is alternatively, demonstrative justification in Canadian society for the law’s reasonable limits. Grain is an important commodity for domestic consumption in, and for export from, Canada. The history of the grain economy demonstrates in the evidence before the Court that a free market generates gluts and famines, high prices and low prices, and speculators having taken unconscionable advantage of the grain producers. Moreover the free market forces also generate counter-market production. Canada enjoys a worldwide reputation for non-corrupt, reliable marketing of grain, Canada’s great and important export.
This inquiry is conducted under section 1 of the Charter which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The orthodox guidelines of section 1 analysis were set out in The Queen v. Oakes, [1986] 1 S.C.R. 103, at pages 138-140, where Chief Justice Dickson created two steps. The government must establish on a balance of probabilities that the objective of the legislation relates “to concerns which are pressing and substantial in a free and democratic society” (Oakes, at pages 138-139). If it has met this first requirement, the government must then establish that the legislation is reasonable and demonstrably justified. This second branch has been called the “proportionality” test, and of the two branches, has created some debate over exactly what the government must demonstrate to discharge successfully the burden of justification. As laid out originally by Chief Justice Dickson in Oakes, at page 139, the proportionality branch is divided into three rigorous considerations. The Court must decide whether:
1. The means used to achieve the objective are rationally connected to the objective. The objective “must not be arbitrary, unfair or based on irrational considerations”.
2. The means, even if rationally connected, impair the right as minimally as possible.
3. There is a “proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’”.
In applying the proportionality branch, the Supreme Court has, over the years, thrown into question the appropriateness of maintaining a strict standard of justification. Deference to the legislature has been introduced where the burden on the government becomes too onerous because the underlying rationale of the legislation is, for example, politically oblique or is anchored in socio-economic choices which go beyond the traditional expertise of the Court. The underlying reason for deference under section 1 has been stated succinctly by David Stratas in The Charter of Rights in Litigation: Direction from the Supreme Court of Canada, Aurora, Canada Law Book, 1996, at page 6-3:
The risk that this branch of the test will impose too demanding a burden upon government and the fact that the test places the Court in the uncomfortable position of assessing what legislative alternatives are available to legislatures have prompted many Justices to require that legislation impair the right or freedom as little as reasonably possible. [Emphasis in original.]
The trend of the courts paying deference to government and relaxing the Oakes test seems to have originated in the case R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, where Chief Justice Dickson (for three Justices) stated at page 772:
… in regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy ….
…
Legislative choices regarding alternative forms of business regulation do not generally impinge on the values and provisions of the Charter, and the resultant legislation need not be tuned with great precision in order to withstand judicial scrutiny. Simplicity and administrative convenience are legitimate concerns for the drafters of such legislation.
From this point of origin, the principle has been applied by the Supreme Court in various contexts. In PSAC v. Canada, [1987] 1 S.C.R. 424, Chief Justice Dickson, though he was writing only for himself on the matter, (as the majority of the Court had found that the paragraph 2(d) of the Charter did not include a guarantee of the right to bargain collectively and the right to strike), stated the need for deference in the context of the economic sphere in vivid terms at page 442:
In my opinion, courts must exercise considerable caution when confronted with difficult questions of economic policy. It is not our judicial role to assess the effectiveness or wisdom of various government strategies for solving pressing economic problems. The question how best to combat inflation has perplexed economists for several generations. It would be highly undesirable for the courts to attempt to pronounce on the relative importance of various suggested causes of inflation, such as the expansion of the money supply, fiscal deficits, foreign inflation, or the built-in inflationary expectations of individual economic actors. A high degree of deference ought properly to be accorded to the government’s choice of strategy in combatting this complex problem. Due deference must be paid as well to the symbolic leadership role of government. Many government initiatives, especially in the economic sphere, necessarily involve a large inspirational or psychological component which must not be undervalued. The role of the judiciary in such situations lies primarily in ensuring that the selected legislative strategy is fairly implemented with as little interference as is reasonably possible with the rights and freedoms guaranteed by the Charter.
In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, the Supreme Court considered the context of a legislative prohibition on commercial advertising which targeted children below the age of thirteen. The majority of the Court found that the legislation breached paragraph 2(b) of the Charter. Referring to Edwards Books, the majority specified, at pages 993-994 that the Court will defer where a legislative choice inured in scientific and socio-economic expertise is required between competing interests of various groups:
When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature’s deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature’s representative function. For example, when “regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy” (Edwards Books and Art Ltd., supra , at page 772).
The Supreme Court approved this approach in a similar context with a different result, in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232.
In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Mr. Justice La Forest, writing for the majority, reiterated the need for deferring to the socio-economic expertise of the government with respect to the issue of mandatory retirement at a university. In finding that the policy was justified under section 1 of the Charter, La Forest J. characterized the issue as a “complex socio-economic problem” (McKinney, at page 302). While in McKinney the fact that the university was a closed system with limited resources which had to be allocated was a major factor, the principle of legislative deference in socio-economic affairs remained unchanged. La Forest J. noted, at pages 304-305:
I turn then to the question whether mandatory retirement impairs the right to equality without discrimination on the basis of age “as little as possible". In undertaking this task, it is important again to remember that the ramifications of mandatory retirement on the organization of the workplace and its impact on society generally are not matters capable of precise measurement, and the effect of its removal by judicial fiat is even less certain. Decisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components. They are decisions of a kind where those engaged in the political and legislative activities of Canadian democracy have evident advantages over members of the judicial branch, as Irwin Toy, supra, at pp. 993-94, has reminded us. This does not absolve the judiciary of its constitutional obligation to scrutinize legislative action to ensure reasonable compliance with constitutional standards, but it does import greater circumspection than in areas such as the criminal justice system where the courts’ knowledge and understanding affords it a much higher degree of certainty.
This approach of deference was further reinforced and perhaps broadened by Chief Justice Lamer, writing for the majority, in R. v. Chaulk, [1990] 3 S.C.R. 1303. At issue in Chaulk was subsection 16(4), the insanity defence provision of the Criminal Code, R.S.C., 1985, c. C-46 which had the effect of reversing the burden of proof contrary to paragraph 11(d) of the Charter. In finding that the provision constituted a reasonable limit on the right, the Chief Justice wrote, at page 1341 that:
… Parliament is not required to search out to adopt the absolutely least intrusive means of attaining its objective. Furthermore, when assessing the alternative means which were available to Parliament, it is important to consider whether a less intrusive means would achieve the “same” objective or would achieve the same objective as effectively. [Emphasis in original.]
In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Supreme Court reassessed the principle of deference under section 1. The Charter dispute in RJR-MacDonald, which took place alongside a dispute concerning division of powers, involved a challenge under paragraph 2(b) to certain provisions of the Tobacco Products Control Act, S.C. 1988, c. 20 which, with limited exceptions, prohibited tobacco advertising. The impugned provisions were held to be inconsistent with paragraph 2(b). By a 5 to 4 majority, the provisions were surprisingly found not to constitute a reasonable limit on the right of the manufacturers of a carcinogenic product, to advertise their lethal wares.
The Court was unanimous that deference is an essential aspect of a section 1 analysis. However, a split seems to have occurred in how the principle specifically tempers the orthodox proportionality branch stated in Oakes. In short, the Court offered a series of divided warnings about the principle of deference, what limitations it bears, and how it guides courts in undertaking the proportionality analysis.
Mr. Justice La Forest, writing in dissent on section 1, for Madam Justice L’Heureux-Dubé, Mr. Justice Gonthier and Mr. Justice Cory, stated that the Court below erred by adopting the rigorous approach of Oakes. Although La Forest J. did not reject Oakes outright, he clearly preferred a return to the actual words in section 1, stating at page 270 that the Oakes guidelines “should not be interpreted as a substitute for s. 1 itself.” He then went on strenuously to endorse the principle of deference, the basic rationale of which he understood to be founded on the necessary division between the judicature and the legislature. He stated, at page 277:
Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be. This is a role properly assigned to the elected representatives of the people, who have at their disposal the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups. In according a greater degree of deference to social legislation than to legislation in the criminal justice context, this Court has recognized these important institutional differences between legislatures and the judiciary.
On this footing, La Forest J. expanded the part of deference, and applied it, in full bloom, to the rational connection arm of the test. He deferred to Parliament’s choice in enacting the advertising provisions without being able to establish on scientific terms that advertising was linked to an increase or decrease of cigarette smoking, writing at page 275:
To require Parliament to wait for definitive social science conclusions every time it wishes to make social policy would impose an unjustifiable limit on legislative power by attributing a degree of scientific accuracy to the art of government which, in my view, is simply not consonant with reality.
Madam Justice McLachlin, writing for Mr. Justice Sopinka and Mr. Justice Major, with Chief Justice Lamer and Mr. Justice Iacobucci in agreement on the issue, concurred with Justice La Forest’s observation that Parliament should not be held to a standard of scientific proof (page 333). However, she took a less deferential approach, admonishing that “care must be taken not to extend the notion of deference too far” (page 332). She is reported at page 329, thus:
The bottom line is this. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning.
Madam Justice McLachlin examined at length the part which deference should play in section 1 analysis. She asserted more precisely the need to limit the application of deference, at page 332:
Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament’s choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.
She then stated the relation between deference and standard of proof under section 1, at page 333:
Context and deference are related to a third concept in the s. 1 analysis: standard of proof. I agree with La Forest, J. that proof to the standard required by science is not required. Nor is proof beyond a reasonable doubt on the criminal standard required. As the s. 1 jurisprudence has established, the civil standard of proof on a balance of probabilities at all stages of the proportionality analysis is more appropriate: Oakes, supra, at p. 137; Irwin Toy, supra, at p. 992. I thus disagree with La Forest J.’s conclusion (in para. 82) that in these cases “it is unnecessary … for the government to demonstrate a rational connection according to a civil standard of proof”.
Clearly, McLachlin J. pronounced that the broad deference espoused by La Forest J. is inappropriate under the rational connection arm. Subsequently, La Forest J., writing for the Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 and in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, relied on this contextual and flexible approach espoused by McLachlin J. in RJR-MacDonald case.
The question is what guidance can this Court draw from the jurisprudence to conduct a section 1 analysis of the impugned provisions of the Canadian Wheat Board Act? It seems that the Court must be “sensitive to the social and political context of the impugned law” and allow “for difficulties of proof inherent in that context”. On the other hand this Court must insist that Parliament cannot envelope its laws in the mists of socio-economics and thereby avoid demonstrating justification for the law infringing rights guaranteed by the Charter.
Indeed, this Court does not find it an impossible prospect to be sensitive to the difficulties involved in the government’s task of establishing the validity of laws in a context steeped in social science or macro-economics, while at the same time squarely meeting its responsibility of considering the reasonableness of the government’s position. There is, of course, no doubt that the rôle of managing the national economic environment, and coming to terms with the many complicated disciplinary perspectives which this seems to require, is the rôle of the government and not the courts. The government must perform this task within the limits articulated in the constitution, or if it does not, must demonstrate to the Court justification for going beyond them. The Court is not a panel of economists or sociologists: the Court is expert in law. Simply put, this Court must judge whether the government’s explanation for the Canadian Wheat Board Act is demonstrably justified, a task in which the Court should evince some expertise.
This Court, with due regard to the fact that the context of the Canadian Wheat Board Act is socio-economic encroaching on purely economic and commercial regulation, must now conduct an analysis under section 1 as articulated by Madam Justice McLachlin in RJR-MacDonald. She defined the test, at pages 330-331:
That the s. 1 analysis takes into account the context in which the particular law is situated should hardly surprise us. The s. 1 inquiry is by its very nature a fact-specific inquiry. In determining whether the objective of the law is sufficiently important to be capable of overriding a guaranteed right, the Court must examine the actual objective of the law. In determining proportionality, it must determine the actual connection between the objective and what the law will in fact achieve; the actual degree to which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions.
This test, as noted above, has been applied by the Court in Ross and CBC, above. The only modification is in the “balancing arm” of the proportionality branch: do the salutary effects outweigh the deleterious effects? (CBC, at page 512).
Pressing and Substantial
The legislative objective of the Wheat Board is found at section 5 of the Canadian Wheat Board Act. That section states “The Board is incorporated with the object of marketing in an orderly manner, in interprovincial and export trade, grain grown in Canada.” In Murphy v. Canadian Pacific Railway Company and The Attorney General of Canada , cited earlier above, the Supreme Court held, in essence, that the CWB was a valid exercise of Parliament’s power over trade and commerce (section 91, class 2 of the 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]). Mr. Justice Locke identified the purpose of the Canadian Wheat Board Act [R.S.C. 1952, c. 44] as being “to pool the amounts realized from the sale of these various kinds of grain in each crop year” (Murphy, at page 630). He went on to write that “it has apparently been considered by Parliament to be essential that complete control of exports should be vested in a body such as the Board.” This confirms that the objective, for Charter purposes, is to provide for the orderly marketing of grain by controlling its purchase, sale and export through a single-desk marketing agency, the Canadian Wheat Board.
This being the objective, the defendant must prove on a balance of probabilities that it relates “to concerns which are pressing and substantial in a free and democratic society” (Oakes, supra, at pages 138-139). In other words, the underlying purpose for Parliament’s enactment of the Canadian Wheat Board Act must be sufficiently important to warrant the abrogation, if any, of an individual’s Charter right.
In terms of how the Court is to discern the government’s objective, Madam Justice McLachlin, in R. v. Zundel, [1992] 2 S.C.R. 731, found for a majority of the Court at page 761 that:
… the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision: see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 334, in which this Court rejected the U.S. doctrine of shifting purposes. Although the application and interpretation of objectives may vary over time (see, e.g. Butler, supra, per Sopinka J., at pp. 494-96), new and altogether different purposes should not be invented.
For two reasons at least, this is a narrow, stultifying and illogical view, but, alas it is the law. That unfortunate rejection of “shifting” or keeping-up-to-date purposes, invincibly implies that Parliament, if it did not perceive the need to amend or re-enact long-standing legislation, would be insensitive, or perversely unwilling, to accommodate current social or economic exigencies of society. To what end then the judicial and political glorification of the relatively short-term, five-year, cyclical election of a new House of Commons? Must members of Parliament be deemed to be unaware of the current issues in the midst of which the electorate elects or re-elects them?
As to long-standing legislation, if and when they leave it alone and unamended, does it mean that the democratically elected MPs do not realize or do not care that it will continue to apply to emerged or emerging conditions? The second reason to grieve such a rigid “ancient purpose set in stone” interpretation is the obverse of the first. It requires that today’s shifted purposes, if any, be negated in favour of yesterday’s purposes, which a then democratically elected, but not then clairvoyant House of Commons intended to meet, and remedy as only yesterday’s exigencies. Yesterday’s or yesteryear’s laws will always come off hobbled and deficient if weighed according to present exigencies which the parties bring before the Court, unless the laws express eternal verities. However, the courts of Canada are bound to reject the shifting purposes which Parliament probably believes will be accommodated without the need of constant amendment. Parliament relaxes at the peril of being misunderstood if it evinces faith in the serendipity of an old statute continuing to cover new, unforeseen, exigencies.
Thus, the focus of the inquiry is on the purpose of the legislation at the time of its enactment. As noted in R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, by Mr. Justice Dickson (as he then was) at page 335:
Furthermore, the theory of a shifting purpose stands in stark contrast to fundamental notions developed in our law concerning the nature of “Parliamentary intention”. Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.
As if the law were meant for only momentary duration, such as “sunset” at noon! This, however, does not exhaust this topic. It must be emphasized that the popularity, or lack thereof, of the legislation among some western Canadian grain farmers is not a relevant consideration under this branch. Legislation can be unpopular yet have a valid purpose, e.g. income tax legislation.
Whether the purpose of the legislation was “pressing and substantial” when it was enacted is hotly contested by the parties and warrants close inspection. Another reason for careful examination is that the striking down of the impugned provisions at issue in this case would have the result of eviscerating the Canadian Wheat Board Act.
It is hardly a surprise that prices of agricultural commodities fluctuate. Grain production relies a great deal on climatological cooperation. It is almost a cliché to say that international grain markets are volatile (report of Dr. Rosemary Fennell, “Agriculture Policy in the Developed World”, Exhibit 71, at pages 5-6). The Court accepts as a historical fact, one not disputed by the plaintiff’s expert Dr. David Bercuson, that grain prices fluctuated wildly between 1917 and 1943. This evidence was led through the report and oral testimony of Dr. John Thompson, an expert in western Canadian agricultural history. The first federal response to price fluctuation was in 1917, when the government assumed control of all wheat for the crop years 1917-1918 and 1918-1919 and shut down the Winnipeg Grain Exchange’s wheat futures market because of escalating prices (report of Dr. John Thompson, “Farmers, Governments and the Canadian Wheat Board: A Historical Perspective 1919-1987”, Exhibit 47, at page 2). This resulted in the creation of the first Wheat Board on July 31, 1919, by Order in Council, P.C. 1589 made under The War Measures Act, 1914 , S.C. 1914 (2nd Sess.), c. 2, in order to market the 1919-1920 crop. For reasons which are disputed, that Board was suspended in 1920.
In the absence of a general federal wheat pool, prairie farmers created three voluntary pools in 1923-1924 and sold through the Central Selling Agency, headquartered in Winnipeg. In 1930, world wheat prices fell through the floor and Prime Minister Bennett’s government “guaranteed the pool’s bank loans and assumed control of 42 047 836 bushels of unsold wheat” (Exibit 47, at page 7). This continued for the next five years. By 1934 the federal government owned some 200 million bushels of wheat. In response to the suggestion by J. I. McFarland (who was Prime Minister Bennett’s appointee as head of the Central Selling Agency) that the whole thing should be turned over to a government monopoly, a voluntary non-monopoly Wheat Board was established. Without this, it is alleged that Canada’s market would have collapsed (Exibit 47, at pages 7-8). In 1938 the largest ever worldwide harvest again depressed wheat prices and was actually responsible for thwarting Prime Minister King’s attempt to return wheat to the open market. The initial payment set that year was 80 cents per bushel, and when the market prices dropped below this mark, farmers delivered what was practically the entire western Canadian wheat crop to the Board. The result was a $61.5 million loss (Exibit 47, at pages 11-12).
A sharp upswing in prices in 1943 had the effect of an under delivery to the Wheat Board. This threatened Canada’s commitments to its war-time allies (particularly Britain) and so as to ensure that these obligations could be met the government, by Order in Council P.C. 7942, under the War Measures Act, R.S.C. 1927, c. 206, gave the Wheat Board a monopoly until July 31, 1945. This Court accepts that this was done to further national interest in wartime, i.e. it ensured the supply of wheat, a strategic resource, and arrested inflation by keeping prices artificially low (Exibit 47, at page 14; affidavit of Dr. David Bercuson, Exhibit 53, at page 9; transcript: Vol. XVII, at page 1724). The monopoly was extended again by order in council.
In 1946, Canada entered into a four-year agreement with Britain to supply 160 million bushels of wheat in 1946 and 1947, and 140 million bushels in 1948 and 1949 in order to secure long-term markets and prices (Exibit 47, at page 15). The evidence shows that one reason for continuing Parliament’s decision to sustain the Board’s monopoly in 1947 was to secure a supply to fulfil these contracts, which were struck below world prices. (The price negotiated per bushel was $1.55; the market price was $2.00 per bushel. By the spring of 1947 it was $2.85 per bushel; Exhibit 53, at pages 11-12.) This is supported by two exhibits entered at trial. The first, Exhibit 88, is the memorandum of May 7, 1946, for the “Minister” (presumably Minister of Trade and Commerce, Hon. James MacKinnon). It reads:
May 7, 1946
MEMORANDUM FOR THE MINISTER:
Re: Canadian Wheat Board
Mr. Monk* informs me that a five-year agreement with the United Kingdom has been negotiated for the supply of 180 million bushels of wheat annually and that the Board considers that in view of this the Board will have to continue to monopolize the acquisition and legislation will be necessary for this purpose almost immediately.
[signed M. Mackenzie]
F.P.V.**
* Henry B. Monk, the CWB’s long time solicitor and counsel.
** Presumably, Fred P. Varcoe, deputy minister.
The second is the December 14, 1946 memorandum to the Cabinet’s wheat committee regarding the continuation of the Board’s monopoly powers (Exibit 89). The opening sentence runs:
In entering into the contract to sell wheat to Britain the Government has embarked on a policy which makes necessary the continued monopolistic control of marketing of wheat, and it can be expected that an attack will be made upon any legislation for the continuation of the present controls.
This rationale was also apparent in the legislation which renewed the Wheat Board’s monopoly. The preamble to An Act to amend The Canadian Wheat Board Act, 1935, S.C. 1947, c. 15 (assented to May 14, 1947) confirms this purpose of renewing the monopoly. It reads in part:
WHEREAS the Government of Canada has entered into an arrangement with the Government of the United Kingdom for the sale and delivery of substantial quantities of wheat to the Government of the United Kingdom annually for a period of four years ….
Section 2 of this Act also introduced the object of the Board, “marketing in an orderly manner, in interprovincial and export trade, grain grown in Canada”, which still remains today. Thus, in 1947 there is clear evidence that at least one cause for renewing the monopoly was to fulfil its international contractual obligations to Great Britain. The purpose was and is Parliament’s intention to exercise its power over trade and commerce in order to secure the orderly marketing, in interprovincial and export trade, of grain grown in Canada.
What is interesting and absolutely crucial to this case, is that the next time the monopoly was renewed, in 1950, the original preamble was deleted from the Act. This was the last major modification of the Act relevant in terms of using the text to identify whether the objective was “pressing and substantial”. The agreement with the U.K., which was the mainstay of the Wheat Board’s export market, was no more. Every time thereafter, 1953, 1957, 1962 and 1967, when the monopoly was made permanent, the purpose of “orderly marketing” remained. The purpose of fulfilling grain contracts with the U.K., or of protecting Canada’s international reputation as a grain supplier, if fulfilling these contractual obligations can be characterized this way, was no longer present in the Act and the historical record. It has been shed in so many words. No doubt, those who did that never foresaw the need for justification pursuant to section 1 of the Charter, but equally, no doubt, they would not have wished to see their legislation thwarted.
What was the pressing and substantial concern which warranted a unanimous parliamentary renewal from 1953 to 1967 (Exibit 47, at page 20)? The only answer the evidence leads to is this. Parliament knew well the problems associated with wildly fluctuating prices, the most obvious being the harm inflicted on farmers. The “harm” suffered by prairie farmers was also of a national concern because of the rôle which grain played in the national economy. In fact, it had bubbled up on several occasions. As Dr. Grace Skogstad stated in her report “Agricultural policy in Canada” (Exibit 56, at page 1), price stabilization programs (such as the CWB) have provided producers “the incentive and the means to stay in production”. Having learned this lesson, Parliament decided to keep the solution which landed in its lap as a result of war legislation to remedy the harm caused by the open market. The Hon. John Diefenbaker, leader of the opposition, wryly noted: “Many who opposed the wheat board as being a dangerous intrusion into private business have today become worshippers of the wheat board” (Exibit 47, at page 21; House of Commons Debates, 7 June 1967, at page 1263). This may be attributed to the purpose of maintaining Canada’s reputation as a grain supplier, or as Dr. Bercuson suggested, as a vehicle for advancing Canada’s position in the post-war world (Exibit 53, at page 10). This concern had already expired by 1967 and been replaced by a consensus that the interwar lessons requiring stabilization of prices had been learned. The notion of “orderly marketing” is, of course, still applicable to the international markets.
Proportionality
(a) Rational Connection
As noted above, to determine whether the first arm of the proportionality test is satisfied, the Court must look at the stated objective of the legislation and determine if there is a rational connection between the objective and what the law is going to achieve. In this Court’s view, the Wheat Board meets this test. The objective of the enabling legislation is to facilitate “orderly marketing” of Canadian grain. The defendant has established that the Canadian Wheat Board achieves this. It has no other raison d’être.
The nature of the legislation is such that the defendant needs only to establish that when the Act is applied and the CWB operates, it sells grain in an orderly fashion. The provisions of the Act, particularly sections 2 and 28, which allow the CWB to fix quotas and use a contract delivery system are the backbone of orderly marketing (Ward Wiesensel, “Will Say Statement”, Exhibit 76, tab 3, at page 6). Further, the actual sales of grain are co-ordinated by the Canadian Wheat Board’s annual sales plan (Exibit 76, tab 3, at pages 4-5). More particularly, the CWB has—by virtue of its monopoly—developed strong markets in countries such as China and Japan, and has increased Canada’s overall market share vis-à-vis the United States. (Dr. Schmitz, transcript: Vol. XXII, at pages 2236 and 2239; report of Dr. Schmitz, “Economic Performance of the Canadian Wheat Board: Myth and Reality”, Exhibit 63, at pages iii, iv and 13).
The CWB expends much effort and resources into marketing, and the evidence shows that this has accrued benefits. One example is found in Dr. Harley Furtan’s evidence. The Wheat Board has been able to keep Canada’s share in the Brazilian market since 1990, when Brazil went from a single-desk importer to a free market (a significant change in market dynamics). The CWB was actually able to increase its share as against the United States, which is Canada’s major competitor. The evidence is that Brazilian customers had developed some “brand loyalty” to the Wheat Board because of supply reliability and after-sale support (report of Dr. Furtan, “Performance Evaluation of the Canadian Wheat Board”, Exhibit 60, at pages 91-111). This is but one example which shows that there is a rational connection between the objective of the Act and what it achieves. Another example (Exibit 60, at pages 27-55) discloses that some buyers actually pay a premium to secure the CWB’s sure supply and quality of grain, even in the face of heavy American export subsidies.
(b) Minimal impairment
To meet this arm of the proportionality test the defendant must first delineate the actual degree to which the law impairs the plaintiffs’ rights. As laid out by La Forest J. for the Court in Ross, supra, at pages 882-883, citing McLachlin J. in RJR-MacDonald:
In RJR-Macdonald, supra, at p. 342, McLachlin J. reasoned that an impairment must be minimal to the extent that it impairs the right no more than is necessary. She stated:
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 objective to infringement ….
In order to meet the objective of the Act and the underlying pressing and substantial concern, Parliament chose to create a single-desk marketing agency, viz., the Canadian Wheat Board, whose “three pillars” are above described (Exibit 76, tab 3, at pages 2-3). It was given a monopoly over marketing of western Canadian grains.
As to the degree of impairment to the plaintiffs’ rights, a strong indication is found in the relief the plaintiffs seek. They do not ask for the CWB to be dismantled; they simply do not want to be forced to market their wheat and barley through it. Plaintiff Orsak’s testimony summarizes the nature of the relief (transcript: Vol. IV, at page 467):
My preference would be for a situation where I could use the Board as one of many choices. The Board presumably has expertise, they claim they have expertise in analyzing and accessing world markets and achieving prices, good prices. I believe I have those skills as well, as a business operator.
While, under this arm of the proportionality test, the government is no longer obliged to canvass all alternatives to the impugned legislation, a significant alternative advanced by the plaintiffs is that the Wheat Board would be able to exist in an open market, the effect being no impairment on their rights. If true, this would suggest that the impairment caused by the current legislation is unwarranted and therefore unreasonable.
Thus the issue of impairment in this case centres around whether keeping the Wheat Board as a non-voluntary pool is justified.
In simple terms, the effect of the Wheat Board’s monopoly, in particular, by operation of its “three pillars”, is to eliminate the “harm” which it was enacted to avoid. It follows that the next question to ask, by way of an alternative, is whether a so-called “dual market” might also reasonably avoid this harm. Through the evidence of Dr. Murray Fulton, the defendant has surely proved on a balance of probabilities that the Wheat Board would not be viable in a dual market. The three advantages of pooling are the pooling of risk, removing the timing of sales as a factor in the market price (price stabilization) and relieving the farmer of marketing responsibilities in order to concentrate on production decisions, (Dr. Carter’s rebuttal affidavit, Exhibit 23, at page 16). Those advantages would be lost (transcript: Vol. XXVII, at page 2706). In Dr. Fulton’s words, “a dual market would mean the end of the Canadian Wheat Board as we now know it” (transcript: Vol. XXVI, at page 2668). 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.
The reason why the CWB could not survive in a dual market as a voluntary pool can be put no more eloquently than Dr. Fulton’s words, at page i of his report “Dual Marketing and the Decision Facing Western Canadian Farmers for Wheat and Barley Marketing” (Exibit 72). He wrote:
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.
This was also identified by Dr. Furtan as the “free rider” problem (Exibit 60, at page 25). A dual market was characterized by Dr. Schmitz merely as “a transition to an open market” (Exibit 63, at page 69).
The plaintiffs’ expert, Dr. Colin Carter, who along with Dr. Al Loyns wrote “The Economics of Single Desk Selling of Western Canadian Grain” (Exibit “E” to the affidavit of Dr. Colin Carter, Exhibit 22, at page 56), pointed out that dual markets exist for rice and other commodities in California and for domestic Australian wheat. Dr. Fulton agreed with this statement, but testified that an analogy cannot be drawn to the western Canadian barley market. In his rebuttal report, he wrote: “Production and marketing systems are complex things, with all of the components linked together …. More specifically dual marketing requires certain characteristics at both the production and processing level in an industry if it to be viable” (Dr. Murray Fulton, “Rebuttal to Dr. Colin Carter”, Exhibit 73, at page 1).
Dr. Fulton points out that in Australia all wheat export is done through the Australian Wheat Board, a single-desk marketer (Exibit 72, at page 2). Because crops marketed by the CWB account for more than 85% of western Canadian grain exports (Exibit 63, at page 11), any sense of comparison between the domestic wheat dual market in Australia is lost, particularly in view of this fact.
In terms of rice, fruit and cotton pools, which exist in an open market in California, Dr. Fulton notes that the success of the pools is premised on three major factors. The pool must attract a significant market share. That share must be stable, and the pool must not have a deficit. In order to attract market share, seven factors should be present and include: (1) large capital investment for preprocessing and processing, (2) the presence of few growers who produce enough commodity to capture processing economies of scale, (3) crop production which requires fixed investment over several years, (4) the existence of flexibility for harvest and storage options, (5) the ability to establish grades and to pool prices over marketing periods, (6) the ability to spread marketing expenses over a longer season and (7) major marketing decisions do not need to be made frequently (Exibit 73, at page 2). Dr. Fulton states that some of these factors are absent in the case of the western Canadian wheat and barley market, specifically that access to market (especially the local milling market) does not require large volumes or incur great cost and that the fixed investments made by the western Canadian producers can be spread through all their crops (Exibit 73, at page 3).
In order to retain market share, successful co-operatives have been able to utilize economies of scale for purposes of packaging and advertising. Raisins and almonds are a good example. Dr. Fulton writes that the economies of scale are different for different commodities. In the case of a wheat and barley pooling agency, there would be no economy of scale to take advantage of because market access would be open to all (Exibit 73, at page 4). There is little “value added” processing similar to almonds or raisins which can be done less expensively by a co-operative.
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 (Exibit 73, at page 5).
Dr. Fulton’s conclusion that the Wheat Board would not be viable without a monopoly is supported by two uncontroverted facts. The first, according to Dr. Fulton, is that “no cooperative in the U.S. has successfully operated a wheat pool of any major size for any substantial period of time during the last 20 or 30 years. The evidence is very strong that wheat pooling has been tried and it has failed” (transcript: Vol. XXVII, at page 2696). This is in reference to pooling attempts in an open wheat market. The second is Canada’s own experience with the dual market between 1935 and 1943, and as noted above, particularly in 1938 and 1943. Even the plaintiff’s lead counsel assented to the voluntary Wheat Board’s failure when the defendant’s counsel re-examined Dr. Fulton (transcript: Vol. XXVIII, at page 2853):
Q. In the voluntary dual market which was operated in the late 1930s when the Canadian Wheat Board did not have a monopoly over exports, did it work?
Mr. Groves: I think it is quite clear that it did not, My Lord.
Dr. Fulton also considered the possibility of a contractual pool and found that it would not be able to exist in an open market either. While the free rider problem is eliminated, farmers would be willing to deliver only a portion of their crop to the pool in case they were unable ultimately to deliver. This would cripple the viability of the pool to market their grain. The other problem would be contract default and its associated costs of recovery (Exibit 72, at pages i, 6-9).
It was alleged that other results would occur if the Wheat Board were cast into an open market. They warrant brief mention. If the monopoly status were removed, all market development efforts made by the CWB for the purpose of marketing western Canadian grain would be lost and this would stifle the marketing objective of the Board (Exibit 76, tab 3, at page 4; transcript: Vol. XXX, at page 2942). Further, the ability to discriminate in price between markets, and therefore to extract premiums, which Dr. Furtan’s report (Exibit 60) established existed, would be lost. Related to this would be the loss of the CWB’s ability to respond to competing countries’ export subsidies (Exibit 60, at pages iv-v, 28-29, 42-47; Exhibit 63, at pages v-vi, 59-67).
The result of a non-viable Wheat Board is apparently this. Those who are skilled and/or lucky enough sometimes to “win”, avoid the problems of the open market and probably would then greatly profit from it. Those who “lose”, inevitably suffer the harms which the CWB was created to prevent. The ultimate result of the failure of the Wheat Board would mean a return to an open market which, Parliament has determined, is not an unalloyed benefit to Canada. Thus, on a balance of probabilities, Dr. Fulton’s conclusion, and Dr. Schmitz’s characterization of the scenario, are reasonable: a dual market is indeed a merely transitional market. Should this be the case, everything would return to square one: an open market which Parliament has recognized as causing (sometimes massive) problems. In the event that the CWB monopoly creates a breach of the plaintiffs’ rights, it is reasonable from a judicial point of view. Of course, there are always staunch “rightwingers” who hold that the absence of the open market is always unreasonable and there are always staunch “leftwingers” for whom the absence of the regulated market is always also unreasonable. It is the democratic electoral process which from time to time rationalizes such disparate credos.
Proportional Effects
The final aspect of the section 1 test, as articulated by Mr. Justice La Forest in Ross, supra, at pages 884-885, is to determine whether the deleterious effects of the impugned legislative provisions outweigh the salutary effects. This is clearly a fact-based inquiry.
The evidence, cited above under “pressing and substantial” and “minimal impairment”, has shown that the actual benefit which the Canadian Wheat Board Act is calculated to achieve is the orderly marketing of grain so that the harmful effects of the open market on prairie farmers, and the resultant cost on all Canadians, are eliminated. While the Wheat Board is arguably not so responsible or so efficient as some producers desire, the evidence has shown that it achieves its objectives. This is the salutary effect.
What are the deleterious effects on the plaintiffs’ rights? What effects do alleged forced association, the alleged prohibition or alleged severe disability to pursue the gaining of a livelihood with the risks and “fun” of business, or being actually subject to the Act by virtue of geographic circumstance (i.e., in one way or another forced to market wheat and barley through the CWB) really have on the plaintiffs? The evidence cited earlier, under the description of the plaintiffs, discloses some effects. One is that they are not always rewarded for producing a high quality product. Another is that the monopoly impedes the plaintiffs’ ability, in various degrees, to maximize their operations potential. The plaintiffs are not able to achieve the highest value for their crops because they are denied ready and immediate access to lucrative markets. Much of the potential financial gain is lost when buybacks are executed and, if no buyback happens, when the prices are pooled. Cash flow requirements are not always satisfactory because of the Wheat Board operation. (As noted previously in the description by Mr. Orsak, this Court acknowledges both the availability of the Prairie Grain Advance Payments Act and its limitations.) They are also subject to pooling of costs, which in some cases seem quite unfair because any advantage of living close to the ultimate destination of delivery is eliminated. If grain is being shipped to Minot, North Dakota, the freight deduction received by a farmer in Dauphin, Manitoba and one in St. Albert, Alberta, are the same, according to Mr. Brad Vannan’s testimony (transcript: Vol. XIV, at pages 1420-1424). The foregoing, in truth, is only one side—the plaintiffs’ side—of the contestation before the Court.
At its simplest, the issue with which the Court is faced with is this. On one hand there is the objective which removes marketing uncertainty for all western Canadian wheat and barley producers. The government has attempted to demonstrate that while this may prevent them from achieving unlimited financial gain, there is market stability. On the other, the plaintiffs are often restricted from realizing the most from their operations. The evidence did not show that the Wheat Board was crippling or driving the plaintiffs’ operations into bankruptcy. Frustration with an inflexible system, however, is readily apparent.
What tips the balance in the Wheat Board’s favour is 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. The Canadian Wheat Board Act does nothing more than ensure that if one produces wheat and barley in the designated area, where the vast majority of both crops is produced, one and all must play by the legislated rules. Any deleterious effects on the plaintiffs’ constitutional rights do not sufficiently outweigh the salutary benefits provided by the existence of the CWB monopoly for the “orderly marketing” of grain. The defendant has sufficiently discharged its onus in proving that the Wheat Board’s monopoly is demonstrably justified in a free and democratic society, despite the Court’s initial conclusion that the plaintiffs’ Charter rights are not overriden.
The Distribution of Powers and the Charter
There is yet another basis for putatively infringing on the plaintiffs’ Charter rights, if such occurred, which is not directly exonerated under section 1. Here the Court must consider the plaintiffs’ assertion of those rights and freedoms which they choose to assert, in juxtaposition with Parliament’s exercise of its trade and commerce power of regulation granted under section 91, class 2 of the Constitution Act, 1867. The Charter, being a new organ of the Constitution, cannot here override a head of legislative power distributed in the original Constitution. So it has been held by the Supreme Court of Canada in Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 (hereinafter Ontario Separate Schools Reference).
In the last-mentioned judgment of the Supreme Court, the question before that Court was, at page 1149:
Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?
The Supreme Court was unanimous in answering this question negatively, but for various reasons, of which one is singularly germane. Madam Justice Wilson wrote for herself and Chief Justice Dickson and Messrs. Justices McIntyre and La Forest, in part as follows, at pages 1158, 1166, 1197-1198:
The preamble to Bill 30 indicates that its purpose is to implement a policy of full funding for Roman Catholic separate high schools in Ontario.
…
The position advanced by many of the appellants was that the minority of the Court of Appeal was correct in law and that Bill 30 was therefore ultra vires. By providing Roman Catholics and Roman Catholic schools with financial benefits not made equally available to other taxpayers and other religious schools, Bill 30 violated the equality guarantee in s. 15(1) of the Charter. The public funding of denominational schools, they submitted, also violated freedom of religion as guaranteed by s.2(a). The Bill could not be justified as a reasonable limit under s. 1.
…
It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise. Section 29, in my view, is present in the Charter only for greater certainty, at least in so far as the Province of Ontario is concerned.
To put it another way, s. 29 is there to render immune from Charter review rights or privileges which would otherwise, i.e., but for s. 29 be subject to such review. The question then becomes: does s. 29 protect rights or privileges conferred by legislation passed under the province’s plenary power in relation to education under the opening words of s. 93? In my view, it does although again I do not believe it is required for this purpose. The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The section 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e. in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province’s plenary power to enact that legislation. What the province gives pursuant to its plenary power the province can take away, subject only to the right of appeal to the Governor General in Council. But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools. This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982.
Further in the Ontario Separate Schools Reference, Mr. Justice Estey wrote for himself and Mr. Justice Beetz, in part, as follows, at pages 1206-1207:
It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights …. Section 93 is a fundamental constitutional provision because it is a part of the pattern of the sharing of sovereign power between the two plenary authorities created at Confederation. The importance of this provision is underlined by its separate existence outside the catalogue of powers in ss. 91 and 92.
Once section 93 is examined as a grant of power to the province, similar to the heads of power found in s. 92, it is apparent that the purpose of this grant of power is to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner with respect to education whether or not some segments of the community might consider the result to be discriminatory. In this sense, s. 93 is a provincial counterpart of s. 91(24) (Indians, and lands reserved for Indians) which authorizes the Parliament of Canada to legislate for the benefit of the Indian population in a preferential, discriminatory, or distinctive fashion vis-à-vis others.
The role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada which includes all of the documents enumerated in s. 52 of the Constitution Act, 1982. Action taken under the Constitution Act, 1867 is of course subject to Charter review. That is a far different thing from saying that a specific power to legislate as existing prior to April 1982 has been entirely removed by the simple advent of the Charter. It is one thing to supervise and on a proper occasion curtail the exercise of a power to legislate; it is quite another thing to say that an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision. The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3) expressly contemplates that the province may legislate with respect to a religiously-based school system funded from the public treasury. Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867.
…
This conclusion, that Bill 30 finds its validity in the exercise of provincial power under s. 93 and that the exercise of this power cannot be abolished or truncated by the Charter, is sufficient to dispose of this appeal.
Here is, in part, what Mr. Justice Lamer, as he then was, wrote at page 1209:
… I would dismiss the appeal only on the basis of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867, for the reasons given by Wilson J. I also agree with Wilson J. as to the effect of the Canadian Charter of Rights and Freedoms on s. 93 of the Constitution Act, 1867.
If the Supreme Court of Canada still stands by the above pronouncements, then a valid analogy to the case at bar is obvious. One may substitute for Bill 30, the Canadian Wheat Board Act, and for section 93 in the Ontario Separate Schools Reference, the federal power under section 91, class 2. The appellants in that case complained of breach of their rights and freedoms guaranteed by paragraph 2(a) and subsection 15(1) of the Charter and the Supreme Court held that the impugned legislation, unlike the CWB Act, could not be justified as a reasonable limit under section 1.
Therefore, any infringement of those appellants’ and these plaintiffs’ rights and freedoms must, for the purposes of the jurisprudencial analogy, be considered not to be directly or indirectly exonerated under section 1. Thus, this Court holds that the scope of Parliament’s power “to make laws … in relation to all Matters … coming within [this class of subject] … that is to say—the Regulation of Trade and Commerce", under section 91, class 2, is not to be crippled by the plaintiffs’ assertion of the certain Charter rights herein pleaded (and discussed) against the Board’s single-desk monopoly granted by Parliament. The legitimate legislative choice of the single-desk marketing system, if abolished, would abort Parliament’s exercise of its trade and commerce power and render nugatory Parliament’s intent to regulate the saltfish, grain or any other trade. After all, the CWB Act is far, far from operating in a confiscatory manner, but even if it did, the Charter does not protect Canadians from the confiscation of their property. The common law has something to say about and against confiscation, but confiscation is not an issue in this case because the CWB pays producers for the grain which it takes to sell.
Conclusion
If nothing else, this case stands for three propositions. The first is that the Canadian Wheat Board Act does not breach any of the rights the plaintiffs pleaded, and even if it did it constitutes a justifiable limit on those rights. The second is 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. This is not to say that the Wheat Board is the best means of marketing western Canadian grain. Indeed, some of the evidence has shown that certain aspects of the Wheat Board’s operations seem unfair (burdensome cost of buybacks, unfair storage and handling costs), counterproductive (the loss of local value added processing by virtue of the Act’s operation) or even disingenuous (adding dockage at port terminals and then charging farmers for cleaning). (On the latter point, is the testimony of Mr. Cawkwell, transcript: Vol. VII, at pages 786-789.) The point however is that the Charter is not the proper instrument to fix what is quintessentially a political problem.
Finally, third, without any consideration of section 1, 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 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. The CWB is an instrument of state regulation of the interprovincial and export market of grain produced in the designated area. Tomorrow, a differently constituted Parliament and government might decide in terms of economic policy to deregulate that market, and again in the future Parliament, directed by the elected government of that day, might yet again decide to reregulate that market. 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 demonstratively justified, or if a constitutional imperative exacts the unimpaired integrity of a head of legislative power.
For the foregoing reasons, this Court dismisses the plaintiffs’ action with costs payable by them in the defendants’ favour.