Thursday, February 27, 2014

Lesson #4: Freedom to Choose & Constitutionality

This is a continuation from Lesson #3:  Absolute Marketing Power.  It all starts at Lesson #1 

“The federal government passed the Agriculture Products Marketing Act in 1949.  The second section of this Act allowed the Cabinet to extend the same powers exercised by a provincial marketing board within a province outside the province for that portion of the product moving in interprovincial and export trade.
This was obviously a sly way of delegating federal powers to a provincial marketing board for controlling trade between two different provinces, as well as for export out of Canada.

So the Federal government adds additional powers to this independent provincial board, thereby making it more powerful than both the federal and provincial government.

Isn't that similar to Dr. Frankenstein when he created his monster.  Did we not learn anything from how well that worked out?

A pragmatic, industry standard for delegation of power and authority has 5 key steps:
  1. Clear expectations
  2. Provide or ensure access to all necessary power, authority, and resources.
  3. Ensure the delegate is responsible and capable to periodically and accurately measure the difference between those expectations and what has actually occurred.
  4. Ensure the delegate takes the necessary, timely, and effective corrective actions to close any gap between those expectations and current reality.
  5. Ensure that the delegate reports to stakeholders on a timely basis for any significant changes in risk, plans, actions, and other significant events.
Did either the provincial or federal government take any of these steps?   We have either none, vague, conflicting, or weak implementation of all 5 mandatory principles described above.  No wonder we have had  problems ever since.

Secondly, where do they get off with delegating their responsibilities to others?  In A.G. of Nova Scotia v. A.G. of Canada (see Supreme Court of Canada, [1951] S.C.R. 31, [1950] 4 D.L.R. 369), Chief Justice Rinfret said at page 34:
"The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of the protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. The country is entitled to insist that legislation adopted under section 91 should be passed exclusively by the Parliament of Canada in the same way as the people of each Province are entitled to insist that legislation concerning the matters enumerated in section 92 should come exclusively from their respective Legislatures. No power of delegation is expressed either in section 91 or in section 92, nor, indeed, is there to be found the power of accepting delegation from one body to the other; and I have no doubt that if it had been the intention to give such powers it would have been expressed in clear and unequivocal language."

I assume that in 1949, the Federal Government didn't yet understand this principle, or needed to be reminded of it in 1951, two years later, by this other lawsuit.  Either way, the principle stands.

Even today, on the basis of Farm Products Agencies Act, the Federal Government has only 20 issues which it can control through Farm Products Council of Canada or the Agencies under the Act; most of which are administrative in nature.  There is no direct nor ultimate control over the Federal Government's delegated powers, so it seems to be contrary to the requirements established by the Supreme Court of Canada.

We continue with Mr. A.G. Wilson's words:
"A board could now control the marketing of its product outside the province.  This legislation did not provide, however, any effective procedure for coordinating the activities of provincial marketing boards.  The legislation was subsequently tested in the courts and found intra vires.  It was later modified to provide a basis for the collection of levies, a form of taxation in effect, to raise funds for marketing purposes.”
So the Federal Government, by not including the mechanism for resolving or co-ordinating issues between provinces, thereby set the scene for the subsequent "Chicken and Egg War" that destroyed many farmers, and almost destroyed Canada with inter-provincial bickering.

On a second issue, here we have an indirect for of taxation via levies, which was also ruled unconstitutional by the Supreme Court of Canada. 

Let's continue:
"Coordination of marketing activities was found to be possible when individual provinces agreed to delegate their powers over the product produced within their borders to a national or regional board.  Such delegation of provincial powers allows the Canadian Wheat Board, a board established under federal legislation, to market the wheat, oats, and barley produced in the designated area.  Coordination was theoretically possible also if board legislation became consistent between provinces.  The political problems attached to such a course have been found to be insurmountable to date [1971].  The difficulties of coordinating the activities of the respective provincial boards have led those producers having the marketing of their products regulated on a provincial basis to agitate once more for federal legislation.  The present policy of the Canadian Federation of Agriculture reflects their views."
While the national board may have helped, inter-provincial disputes continued.  Many complained about unfair treatment, inefficiencies, trade restrictions, unconstitutionality, lowest cost/most efficient producer, loss of personal freedom, self-reliance, population shifts and many other related issues.

As long as the Federal and/or Provincial governments were creating artificial systems and rules, the people would be restricted and chafe under the imposed rules.

Alternatively, the governments could have ensured fair treatment in the marketplace through the Competition Act and similar consumer protection legislation, then let consumers decide the issues every time they buy (or refuse to buy) the products offered by the marketplace.  As technologies, organizations, and consumer tastes change, the whole system can immediately adjust to the latest trend, rather than having fossilized and inappropriate regulations in place long after their usefulness.

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