|Montreal, November 23, 2002 / No 114
by Harry Valentine
At the beginning of November, the Canadian news media carried a story about a pro-free-market Canadian farmer who began a 25-day prison sentence. He committed the heinous crime of donating two sacks of barley to a Montana 4-H club without an export permit from a regulatory agency, the Canadian Wheat Board. Jim Ness (age 58) and 12 other Western Canadian farmers stood up for their principles and their belief in a free-market systems, rather that pay a $1,000 fine to a state that remains committed to acts of economic obscenity. The premier of Alberta has since indicated that his government may launch a constitutional challenge against the Wheat Board and its practices.
The Constitution states that it is the supreme law of Canada as
well as that all citizens are equal before and under the law. Eastern
Canadian grain farmers are exempt from regulation by the Wheat Board, while
Western Canadian grain farmers are subject to the asinine dictates of this
regulatory tribunal. This situation is in clear conflict with all citizens
being equal before and under the law. By subjecting Western Canadians
to different laws than Eastern Canadians, the Canadian federal government
is practicing, defending and upholding economic apartheid. Further information
in this regard appears under the section "Review of Court Proceedings"
on the Farmers
for Justice Webpage. Economic apartheid is quite rampant across the
Canadian economic spectrum. Some producers are free to sell or donate their
produce or products, while others are forbidden from doing so by force
The Alberta premier's threat of a constitutional challenge to the authority of the Wheat Board runs the risk of having federal officials act to protect the tribunal, by extending its authority to include wheat farmers located in Southern Ontario and elsewhere in Eastern Canada. If Alberta's premier wants to launch a credible court challenge to the practices and existence of the Wheat board, he may first need to revise all forms of economic regulation within his own province, so they concur with the rights and freedoms in the charter. He would have to uphold the right of all producers and service providers to enjoy equal freedom of opportunity (equality under the law) with respect to market entry and trade, in all areas of entrepreneurial or business endeavour, that is, right across the economic spectrum. This would be the basis by which to undertake a constitutional challenge against the practices of the Wheat Board.
Under equality before and under the law, the state has to recognise that all citizens have to have the equal right and freedom of opportunity to enter any peaceful and productive area of entrepreneurial endeavour, business operations or profession of their own choosing, with equal right to market their products or services as do all other Canadians in all other professions or fields of service, without restriction by the state. This is their basic constitutional right. At no time since the repatriation of Canada's constitution has any level of government required any regulatory tribunal to conduct its affairs in strict accordance with statutes spelled out in the charter. Since the constitution's repatriation, citizens have been routinely denied market entry into several (regulated) areas of the economy, while players in those fields have routinely been restrained in their freedom to trade. Economic regulations are mainly drawn up by unelected bureaucrats. These are restraints on peaceful, productive activity by citizens and are routinely signed into law without ever being debated or voted upon by any elected body. This is no different to the governmental behaviour of a totalitarian state. A constitutional challenge to the practices of marketing tribunals like the Wheat Board, is long overdue.
Under the present regulatory regime, some sectors of the economy such as the information sector, are essentially devoid of any form of economic regulation. The state's misguided policy of making itself into a partner to this sector, contributed substantially to this sector's near economic collapse. Other sectors like agriculture are heavily regulated in some areas, while other areas are almost regulation-free. Under a regime of equality before and under the law, such a practice is unconstitutional since it discriminates between citizens, depending on which sector of the economy they are either producing goods or providing services. In a revised system of economic regulation, the state and its bureaucrats would be required to uphold equality before and under the law for all peaceful, creative and productive participants in the economy, regardless of their chosen economic sector. This means that the same rules of freedom of market entry and freedom of trade apply to everybody, without discrimination based on economic sector.
If the Alberta premier is serious about undertaking a constitutional challenge against a tribunal like the Wheat board, he may have to acquaint himself with some credible free-market economics as well as the failures of state economic control. His lawyers may point to the decimation of the federally regulated East Coast cod fish industry as an example of the failure of economic regulation as well as the failure of government management over a sector of the economy. They may also point to Canada's shortage of doctors and the delays citizens are experiencing in trying to obtain medical attention, that is, a failure of a state controlled and state regulated health care system that has become plagued with problems caused by state behaviour. They will need to prove to the Supreme Court that while state economic control and regulation may seem desirable in the short term, it invariably fails to achieve its original objectives in the long term. On this basis, an argument may be developed showing that the Wheat Board serves no useful purpose (if it ever did).
His federal adversaries will downplay the significance of federal economic failures in the East Coast cod fish industry and in health care. They will try to separate statutes in the constitution from economic matters, claiming that different areas and sectors of the economy operate differently, many providing different goods and services which are essential to the "greater good" and general well-being of Canadians and therefore need to be regulated differently, the rights and freedoms spelled out in the constitution's charter notwithstanding. The pro-regulation federal forces will have little choice other than to rest their case on such economic arguments, that is, on the belief that the free-market system is inherently flawed and is therefore in need of state regulation, the failures of state economic regulation and economic control notwithstanding. They may be expected to argue that matters pertaining to the economy not be subject to the charter of rights and freedoms or other related statutes in the constitution, for "the greater good."
The Albertans would have to show that not only is the concept of economic regulation inherently flawed, but that the belief in the free-market being inherently flawed is based on erroneous assumptions and on myths that can be dispelled. They may show that despite the vast diversity of areas and sectors in the economy, sectors that allegedly operate differently from each other, business people and managers in very diverse sectors of the economy receive essentially the same kind of higher education. Such business people essentially apply the same types of management principles, fiscal controls, accounting practices, customer relations, marketing techniques and business planning and general practices in a wide range of industries in very different, if not often unrelated sectors of the economy.
This is actually a kind of "equality" in the way most successful business enterprises are managed and is a manifestation of "natural law" in the field of economics and business. It is similar to the kind of "natural law" that has been discovered to exist in nature, in fields like chemistry and physics. The Albertans may even be able to illustrate to the Supreme Court that even unregulated sectors of the economy are still subject to "natural law," such as the regime of the law of the market. Unregulated businesses have been successfully operating under such a regime and providing essential goods and services to Canadians for many years, benefiting the well-being of Canadians and operating in the interest of the "greater good" over the long term. Under such a regime, Canadians will still have access to affordable wheat and wheat products.
The central argument
The central argument the Alberta team needs to present is not whether economic regulation is legitimate or not, but that the central issue is equality before and under the law. A credible case can be made showing that Canadians at large would suffer no ill-effects if all entrepreneurs, service providers and producers operated under a regime of equality before and under the law, meaning, the same rules and laws apply to all creative, peaceful and productive citizens, without discrimination or differentiation based on choice of profession or area of entrepreneurial endeavour.
The Alberta government will need to prove to the Supreme Court that Canadians will not be without bread if Western wheat farmers operated outside the scope of the Wheat Board, either under a revised non-discriminatory regulatory regime upholding equality before and under the law, or one that is free from economic regulation altogether. They may show evidence that despite employment steadily declining in the agricultural sector for decades, farms got bigger and more food was produced to feed a bigger population, a trend that was underway even before the Wheat Board came into existence. Only a continued drought would ultimately curtail wheat production in the West, under a regulatory-free regime.
There are two possible outcomes to the Alberta government initiating a constitutional challenge to the practices of the Wheat Board:
2) the case for Western secession will be strengthened on the basis that the federal government and its agencies refuse to uphold equality before and under the law for all Canadians, preferring to discriminate between and among peaceful citizens and based on their chosen field of productive endeavour.
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