Canadian Farmers for Justice
web posted September 1997
Farmer fights charges by arguing constitutionality of Canada Wheat Board
Dave Bryan was charged recently with exporting barley without a CWB license. While Bryan admitted that he had indeed exported the barley illegally, he decided to turn the trial into decision on the CWB itself. Bryan filed a Notice of Constitutional Question to the Attorney General of Canada.
This means that the focus of the trial will be the constitutionality of the CWB Act. Bryan argues that although he is charged under the Customs Act, those charges depend on the authority of the CWB Act. He will also argue that the CWB Act, in preventing him from selling his grain to someone other than the Board, is expropriating the grain without the due process of law.
Finally, Bryan will argue that the CWB Act discriminates against farmers in the CWB's "designated area" (basically consisting of Western Canada - ed.) because farmers outside this area are not subjected to the CWB Act. Bryan wants to petition the court to rule that the CWB Act be amended to make it voluntary.
The constitutional challenge will look at whether the division of power between the federal and provincial governments infringes on the property and civil rights of farmers. While provinces have jurisdiction over property rights, the Constitution gives the federal government the right to control commerce and trade. Grain, it seems, is private property while being grown, and public property after its harvested.
The trail had been set to start August 20, but has been delayed indefinitely while lawyer Art Stacey familiarizes himself with the case. Federal Crown prosecutor Chris Mainella agreed to an adjournment to September 17 when he will return to court to see where the matter stands.
Bryan is facing a trial on four charges relating to an incident that took place in March 1996 at Lyleton, Man., where 39 farmers were charged after a border run. He also faces another eight Customs Act charges involving incidents in Manitoba and Saskatchewan and Criminal Code charges for dangerous driving and obstructing a peace officer.
Meanwhile, it's expected about two dozen farmers charged in 1996 at Lyleton who have decided to plead guilty will be sentenced November 7 in Brandon, Manitoba. The rest are facing a trial date in December in Minnedosa, Manitoba. A Federal Court Judge has already shot down one constitutional challenge of the wheat board's powers initiated by barley growers but that decision is being appealed.
Check back with ESR for updates about this latest fight for economic rights in Canada.
Single Desk Marketing a violation of property rights
The Calgary-based Canadian Property Rights Research Institute issued a statement early August pointing out what they call the systematic violation of the private property rights of Western farmers. It stems from the fact that Western wheat and barley producers are forbidden from selling their grains in the U.S. directly. Instead, they must sell through the Canadian Wheat Board or risk being fined, jailed, or having their farming equipment seized by border guards and the RCMP.
The Canadian Bill of Rights states that Parliament may not deprive a person of "the right to life, liberty, security of person and the enjoyment of property, and the right not to be deprived thereof except by due process of law." However, the right to own property is not recognized as a fundamental right for Canadians. In addition, the courts have no set rules in defining what it means to have the fundamental right to "enjoy" property.
"In this case, it seems to mean you can 'enjoy' purchasing seed, fertilizing, planting, irrigating, growing, spraying, harvesting, storing, and transporting your property," says Danielle Smith, Director of the Institute. "Everything -- except enjoying the actual sale and full proceeds of these efforts."
The judge presiding over a recent legal challenge to the CWB determined that the enactment of and amendments to laws passed by a majority of the elected House of Commons constitutes due process. Essentially then, Parliament can deprive Canadians of "fundamental" rights by a simple majority vote.
"This is a frightening precedent," said Smith. "Not just for producers of wheat and barley, but for all Canadians."
The common understanding about the role of the CWB is that it provides price stability. With pooled crops the Board is believed to have greater market power to protect against price fluctuations. However, Canadian wheat accounts for only 20 per cent -- and barley only 7 per cent -- of the global market. Thus, it is unlikely that the CWB has the power to influence prices. There is growing pressure for a more open market because farmers can actually get a better price from foreign multinational corporations than they can from the CWB.
The current rule -- that all grain sold in the United States must first be pooled then sold from a central agency -- creates an average, equal pay-out price. Farmers who could get a higher price in the open market are penalized while farmers who would get a lower price are protected. Essentially, one group of framers is forced to subsidize the other, who either have less efficient farming practices, lower quality grain, higher transportation costs, or less knowledge on how to access sales opportunities in the U.S. To export legally, farmers must first sell all their grain to the CWB, who sell it back at a marked-up price, before they can take it across the border. Any other method risks fines and prosecution.
Concluded Smith, "Western farmers would not be in this predicament if they had the right of ownership of their own sweat and toil. Until such time, entrepreneurial farmers will have to strain under the yoke of current policy."
Good enough for Ontario, not apparently for the West
While Western farmers continue to be fined and jailed in order to preserve the monopoly buying power of the Canadian Wheat Board, farm leaders and farmers in Ontario have quietly undertaken steps to solve the future of that province's Wheat Board in quite a different manner.
Ontario farmers will vote this fall on whether the Ontario Wheat Marketing Board should retain its monopoly into the 21st century. In what amounted to a surprise move to many Western observers, the Ontario Farm Products Marketing Commission just handed down the decision that if a minority of Ontario producers are unhappy with the Ontario Wheat Marketing Board, its single-desk status will make way for a new marketing environment. This procedure is a blatant contrast to the controversial barley vote conducted by the Canadian Wheat Board Minister Ralph Goodale, which not only denied farmers a vote on the issue most favoured -- dual marketing, but also failed to set out clear guidelines as to the value of the results.
OFPM Commissioner Gordon stated that the upcoming vote would require a minimum 2/3 of voting farmers to maintain the status quo. He also noted that the Commission decided to follow its long-standing policy that farmers should be be forced to sell through a single-desk system unless a substantial majority of farmers support it. If just one third of Ontario producers vote to remove the compulsory pools, the single-desk status of the board would disappear and be replaced by a de facto dual market.
"Consensus and compromise are used in liberal Ontario, and the rights of the individuals and minorities are recognized. But in the West, farmers are at the mercy of the Federal government, and have no recourse but acrimonious debates, expensive court litigation, protests and rallies. It is unfortunate that these tactics are now the only avenue productive farm business people have in order to get their rights recognized," says Jim Pallister of Portage La Prairie, Manitoba.
In a Western Canadian context, this 2/3 would have already spelled the end of the Canadian Wheat Board's buying monopoly on Prairie barley, as evidenced by the results of the recent barley vote. But while Ontario producers can actively decide their future in a process that is civilized, democratic and recognizant of the fundamental rights of farmers, some of the 38 per cent of Western grain growers who oppose the monopoly are being jailed to serve as an example to others.
CFFJ says "No" to handouts. Not a penny in aid, but billions in free trade.
At a press conference on August 8, CWB Chief Commissioner, Lorne Hehn said that current farm safety net programs aren't sufficient to make up for the drastic drop in grain prices. He went on to propose additional financial support for farmers from the Federal government.
CFFJ are urging Finance Minister Paul Martin to deny this ridiculous request which is just to offset the billions being held back from the Western economy by the CWB Act. Instead he should immediately go to the Prime Minister and ask for an end to the buying monopoly of the CWB.
Bernie Sambrook, a young farmer from Medora, Manitoba said, "Tens, even hundreds of thousands are being withheld from each Western farmer by the CWB Act. If we had a free wheat market I could sell my entire 30 bushel per acre durum crop for $7 a bushel, or CPS wheat for $5. Because of the CWB buying monopoly over me which works with restrictive quotas and only pays us a down payment, all I'll be able to sell this fall is about 5 bushels of durum for $3.83 or wheat at $1.88. Instead of grain revenue over $200 per acre, all I can get is $19." Sambrook concluded by saying that "farmers don't want government cheques, they want grain cheques."
Wawota, Saskatchewan farmer, John Husband stated, "The Canadian taxpayer is already overburdened with taxes. We don't need any handouts. What we need is an end to the Board's power over farmers. Many profitable opportunities in niche markets are missed by it because without competition its employees can be either incompetent or too lazy to search them out while having the power to jail farmers who take the initiative."
Last year the CWB withdrew from the market during the summer when prices were at their highest, fouled up shipping during the winter and now are reneging on their contracts with farmers forcing them to carry inventory into the new crop year when it will be sold for cut-rate prices.
CWB protests at Goodale's
The day before Hehn whined for more money, about 300 people turned up for a rally against the CWB, including newly minted leader of the Saskatchewan Party Dan D'Autremont. "While Saskatchewan farmers are receiving $3.82 for durum, in North Dakota the same wheat would put $6.12 per bushel in the pockets of farmers," D'Autremont said. "Spring wheat in N.D. is bringing in $4.65 a bushel -- here it's $2.26."
After the rally, about 50 farmers stacked sacks of barley in front of
the constituency office door of Wheat Board Minister Ralph Goodale, the
MP for Regina-Wascana. Security guards asked the group to leave after
one of the demonstrators slit open a bag, spilling some of the barley.
Goodale was on vacation at the time. 
Want to find out more about this group of farmers fighting for the right to keep the efforts of their production and the right of free trade? Visit CFFJ's site at http://www.cffj.com.