Does it matter if our laws are passed illegally?

By Peter H. Russell

Globe and Mail
Dec. 30, 2011

On Dec. 15, the Governor-General gave royal assent to Bill C-18. This means that the Marketing Freedom for Grain Farmers Act, the legislation that ends the Wheat Board’s monopoly of wheat and barley sales, is now the law of Canada – or is it?

The question arises because on Dec. 7, Federal Court judge Douglas Campbell ruled that the way Bill C-18 was introduced into Parliament violated the Canadian Wheat Board Act. Section 47 of the act requires that the Minister of Agriculture not introduce in Parliament a bill that would end the Wheat Board’s control of all wheat or barley sales without first consulting the board and holding a vote to determine whether farmers favour such a change.

In the May election, the Conservatives ran on a platform that promised to end the Wheat Board’s monopoly. When polls indicated that a majority of both wheat and barley farmers favoured retaining the Wheat Board’s “single desk,” the government realized it might fail to honour its election commitment if it followed the procedure laid down in the act.

The government could have avoided this issue by asking Parliament to repeal the entire Wheat Board Act, or at least Section 47. Instead, it took the position that it did not have to comply with the act’s requirements because one Parliament cannot bind another. So, in its view, it could simply ignore legislation passed by a previous Parliament.

The government has defended its action constitutionally under the banner of parliamentary sovereignty. But against this position is the view that Parliament can bind itself as to the “manner and form” of future legislation, a view supported by many constitutional scholars in Canada and other Westminster parliamentary democracies. Taking this view does not mean that Parliament can never change its mind and rescind legislation passed by previous Parliaments. But if it is going to depart from a process of law-making that an earlier Parliament committed to, it must do so explicitly and repeal the legislation.

Canadians should understand that at stake here is not just a technical point of law, but the integrity of parliamentary government. In placing Section 47 in the Wheat Board Act, Canada’s 36th Parliament made a commitment to grain growers that it would not consider changing the rules for marketing their crops without their consent. To hold that such a promise means nothing once another party has a majority in the House of Commons is to deny Parliament the capacity to make such commitments to citizens whose interests are so directly affected by legislation.

A full debate in Parliament on the merit of that promise may well result in its repeal. But those of us who believe in parliamentary democracy would think that a better way to honour the institution of Parliament and avoid its becoming simply a ratifying agency for the majority party.

Legal challenges are reportedly under way – which isn’t surprising when you consider we have an act that has been judicially found to have been illegally introduced in Parliament. We should watch the outcome of this litigation with interest and concern.

Peter H. Russell is professor emeritus of political science at the University of Toronto.

Circa 1930s