China and the CWB: Twinned Ideology

(The CWB’s Twin Sister)

Roundup Ingredient A Choker

http://www.scientificamerican.com/article.cfm?id=weed-whacking-herbicide-p

Weed-Whacking Herbicide Proves Deadly to Human Cells

Used in gardens, farms, and parks around the world, the weed killer Roundup contains an ingredient that can suffocate human cells in a laboratory, researchers say

By Crystal Gammon and Environmental Health News

WEED KILLER: New research has found that an 'inert' ingredient in the herbicide Roundup can kill human embryonic, placental, and umbilical cord cellsAVIXYZ/FLICKR

Used in yards, farms and parks throughout the world, Roundup has long been a top-selling weed killer. But now researchers have found that one of Roundup’s inert ingredients can kill human cells, particularly embryonic, placental and umbilical cord cells.

The new findings intensify a debate about so-called “inerts” — the solvents, preservatives, surfactants and other substances that manufacturers add to pesticides. Nearly 4,000 inert ingredients are approved for use by the U.S. Environmental Protection Agency.
Glyphosate, Roundup’s active ingredient, is the most widely used herbicide in the United States. About 100 million pounds are applied to U.S. farms and lawns every year, according to the EPA.
Until now, most health studies have focused on the safety of glyphosate, rather than the mixture of ingredients found in Roundup. But in the new study, scientists found that Roundup’s inert ingredients amplified the toxic effect on human cells—even at concentrations much more diluted than those used on farms and lawns.

One specific inert ingredient, polyethoxylated tallowamine, or POEA, was more deadly to human embryonic, placental and umbilical cord cells than the herbicide itself – a finding the researchers call “astonishing.”

“This clearly confirms that the [inert ingredients] in Roundup formulations are not inert,” wrote the study authors from France’s University of Caen. “Moreover, the proprietary mixtures available on the market could cause cell damage and even death [at the] residual levels” found on Roundup-treated crops, such as soybeans, alfalfa and corn, or lawns and gardens.

The research team suspects that Roundup might cause pregnancy problems by interfering with hormone production, possibly leading to abnormal fetal development, low birth weights or miscarriages.

Monsanto, Roundup’s manufacturer, contends that the methods used in the study don’t reflect realistic conditions and that their product, which has been sold since the 1970s, is safe when used as directed. Hundreds of studies over the past 35 years have addressed the safety of glyphosate.
“Roundup has one of the most extensive human health safety and environmental data packages of any pesticide that's out there,” said Monsanto spokesman John Combest. “It's used in public parks, it's used to protect schools. There's been a great deal of study on Roundup, and we're very proud of its performance.”

The EPA considers glyphosate to have low toxicity when used at the recommended doses.
“Risk estimates for glyphosate were well below the level of concern,” said EPA spokesman Dale Kemery. The EPA classifies glyphosate as a Group E chemical, which means there is strong evidence that it does not cause cancer in humans.
In addition, the EPA and the U.S. Department of Agriculture both recognize POEA as an inert ingredient. Derived from animal fat, POEA is allowed in products certified organic by the USDA.

The EPA has concluded that it is not dangerous to public health or the environment.
The French team, led by Gilles-Eric Seralini, a University of Caen molecular biologist, said its results highlight the need for health agencies to reconsider the safety of Roundup.
“The authorizations for using these Roundup herbicides must now clearly be revised since their toxic effects depend on, and are multiplied by, other compounds used in the mixtures,” Seralini’s team wrote.
Controversy about the safety of the weed killer recently erupted in Argentina, one of the world’s largest exporters of soy.

Can You Identify This Town?

Velling

I swear that childhood food remains in a person's subconscious, and when you're really sick, or when you're recuperating, food is persnickety and "iffy", but absolutely essential, yet, no amount of coaxing will get the majority of waning appetites to tie into a slice of, er, liver, or brussels sprouts, or hot curry.

And then there's velling.

It's essentially rice washed repeatedly, cooked slowly in milk, until thick like porridge, and topped with a touch of cinnamon, and it is essentially the Swedish cure for all that ails the stomachache and heartache. It' s like having Grandmamma kissing it all better; you remember the feeling, don't you? Food isn't just about nutrition, you know, it's innately tied to memories and affection and caring, and that's an important thing for farmers to understand when they sell into specialty markets. As silly as it sounds, I send tempting munchable goodies to people I care about, and some of you reading this post have for sure, untied a package or two.

Well, today I'm off again to deliver a bowl full; I got my orders for a pot of velling and it looks and smells delicious. It'll work its' magic. It always does. Pars

Art Enns' Commentary: Multiple Sclerosis and a Story of Love and Caring and Hope

All of us at some time or another own an experience that includes love and anxiety, both actively in play at the same time. Nothing is more powerful than reciprocal love, is there?

Art Enns, a farmer from Manitoba sent this a few days ago whilst I am dedicated to my sister's cancer struggle, and consequently have not been posting. For those farmers, or anyone for that matter, seeking treatment for MS, this story is very informative, and thank you Art for sharing it. Your writing skills, as always, are clear, imaginative, and informative. Your caring is inspiring. Pars


Sharing a story!‏
From:Art Enns
Sent:June 27, 2009 11:08:19 PM
To: parsley2008@live.ca
Hi Carol:

A long time we chatted via email about a procedure that my brother was going through on the treatment for MS progressive. You encouraged me to write something for your web site. I struggled with it. Time wise and also if a web site was the correct place. So I now have put my thoughts together on the whole procedure. So am sending this to you. As you will see. It is not finished. It is longer than I had thought. Yet how do you abbreviate it. We are now awaiting for the results. How long who knows. Forgot. He has made the return trip since we talked and has the implant done. Let me know what you think of the description. If it might help others. I think it is well worth the read. I will let you be the judge. If we need to change it let me know.


A journey of Hope!

In the summer of 2007 my brother was diagnosed with MS progressive. He was stunned and taken aback when he heard the results. There was no history of any such medical issues in our family history. Where did it come form etc. My brother Karl and I farm in a partnership. By the summer of 2008 the effects of the disease was taking it’s toll on his health and his ability to farm. He was a very frustrated person. He had always been farming and was the handy man on the farm. No issue was unsolvable, broken machine unfixable or a device had t ob designed and build to solve the problem – then let’s make it. So when he got the word there was nothing medicine at present could do for his situation he was devastated.

In early December of 2008 he was listening to CTV news and they had an interesting item about a new experimental procedure that a girl from Toronto had done for her MS progressive with amazing results. Following is the site that you can go to and read about Louise Zylstra : http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20081116/ms_treatment_081116/20081116/

This article was just the hope my brother needed. He made a few quick calls to Tel Aviv. Got email contacts and got a long list of information and questions answered from the doctor on the procedure itself. He was able to contact Louise and listen to her story. A very remarkable recovery. So far.

So the end of January had the two of us on a plane to making the first part of the journey of Hope to Tel Aviv. To start the procedure. The first part of the procedure involved a consult and if agreed with the procedure an extraction of bone marrow. The sample is then processed in the lab and then reinserted at a later date. One slight problem. If you are not a citizen of Israel – the doctor cannot do the injection there. Yup even under their medical system there are politics. The return would be either Istanbul, Turkey or Athens, Greece.


Following is a journal I did of the meeting with the Doctor.


Dr. Shimon Slavin is the doctor that heads this field. If you want to find out who he is. Do a search on the internet. Depending on the search engine you use - you can get 27,000 hits for him. Papers written, lectures, research, guest lectures, stem cell research and universities studied. You may also want to check out this site. http://www.repairstemcells.org/

So we met with him. He practices in two buildings which are side by side. The main hospital which is run under a public system similar to our own system. The hospital that we visited would be very similar as the General in Winnipeg or any of the largest in the other provinces. Beside the hospital he also has a private clinic. So because this procedure is experimental it is handled out of the private side. Consultations are done in either place – depending on where his appointments are. We met today in the private one.

The man is the best in his field. If you read up on his bio – most impressive. So I quickly – Karl I think has know this before- saw this was the place to be. It is the only place in the world doing this type of research. You also saw quickly that he is surrounded by the best equipment and staff. Most impressive. When we met he was very professional yet personal. He put us all at ease quickly. OK it took Karl a bit longer. He was very nervous and up tight. He was fully interviewed and checked. He also took all the time we needed to get our questions answered.

He has a procedure based on the use of bone marrow derived from multipotential mesenchymal stromal stem cells (MSC) and such cells can regulate neuroinflammatory reactions and possible also serve as neurotrophic cells for stimulation of locally residing stem cells. The procedure is based on extraction of patients own bone marrow cells, cultivating to enrich the number of MSC from a low concentration of approximately 1 in 10,000 in the normal bone marrow to nearly 100% following 4-6 weeks of culturing in specifically designed Clean rooms. Following culturing, after confirming sterility and quality control, the cells can be injected . In MS cases they inject the cells intrathecally and intravenously because this is as best and close as we can get into the central nervous system without any dangerous invasive procedure. The hope is, in the best possible situation, that such cells will help induce neurogenesis, enhance remyelinization or perhaps even provide factors that will stimulate locally residing stem cells. In plain terms. Slow the MS procedure and help regenerate the damaged nerves. By helping to stimulate your own cells and some cells from bone can regenerate nerves.

This is a relatively new procedure. When Karl first started he had done about 25 procedures. He has added many more by now. Still the numbers are small it is hard to determine a qualified success rate. The procedure has had no side effects in testing. So is considered safe. As he said when he joked with us. All you have to loose is time and money. The results have varied. In all but 2 cases there has been an improvement. Age, effects of the disease and severity are determining factors. He emphasises that this is an experiential process and results are not guaranteed. What impressed me the care and due diligence they take. After the cells are grown in the Clean Rooms. They are frozen and then tested for purity. To make sure no other germ material is injected into the body. Once the sample is certified clean is it injected into the body. A small sample is retained for future use. As technology changes in various ways these samples can be used again if there is a relapse or better forums of treatment through new technology can increase the results.

So after the consult Karl agreed to the experimental procedure. We arrived the next day to have the procedure done in his private clinic. Karl was ushered into the procedure room where three individuals where there to get him ready. A nurse to monitor the instruments, an antitheist , and then other - an attendant. They got Karl all ready. Hooking up the instruments. When all was ready - Dr. Slavin came in to do the procedure. Before he started he filmed Karl. Doing various movements and then asked him to walk for his file. Dr. Slavin was very laid back and answered any questions or made comments on the procedure. The place of the extraction was just on the left side just above the bum cheek. That is where the bone is closest to the surface. A needle is inserted and then the extraction begins. Karl is put under for about 20 minutes for this procedure. Karl stayed in the room for about another half hour. I was surprised at the size of the sample. For the medics. They say 200 – 300 milliters. Karl was a little woozy afterwards so we did not do much after the procedure except rest. Late the next day we flew home.

It took a lot longer than 6-8 weeks for the clinical regeneration. We had been warned it could take longer. Karl followed up with emails to the clinic. They asked him to be patient. Everything was on course. Karl is not a patient person. So when we finally got the call in the beginning of June it was a welcomed relief. Karl was accompanied by his wife Dianne on the return trip. I was still seeding on June 10th when they left. They asked Karl to come to Istanbul. Where the procedure was done in one of their hospitals. I want to make one thing very clear. The stem cell sample never left the hands of the Tel Aviv technicians. Two from Dr. Slavin’s team flew to Turkey with the sample that day. They waited in the room while the team got Karl ready for the implant. Dianne said the sample never left the hands of the Israeli team. She even held it as the neurologist with drew the sample into his syringe. It was then injected into his spinal cord. Twenty one million healthy stem cells had been cultured for this procedure. Karl then had his legs elevated to get the flow to the brain quicker. There are side effects – nausea and headaches. We had been warned not to book the return flight immediately after the procedure like the first time. Karl battled had headaches for a couple of days. He spent a night in the hospital. The room was his for a second night if necessary. He chose not to use it. Instead relaxing at a place they had chosen for some recovery time till returning on June 17th .

So now we wait. As has been mentioned this is an experimental procedure. What kind of results can Karl expect. As has been said it could be anywhere. I will be satisfied with much less than a ten out of ten. In other words to buy time as work continues. With stem cell research now moving forward quicker in the U.S. and hopefully in Canada who knows what might be available in a few years. It all starts with an experiment. In conclusion I want to once more emphasize that this procedure uses only your own stem cells. It is not embryonic which has some controversy surrounding it.

In sharing this I want to give hope to others. I know most families have someone or know of someone who has this forum of disease. I will try and keep you abreast of the results with Karl. I am sure it will take a while before we can say what effects this procedure has made. Yet right now the girl from Toronto – Louise has given Karl and many others hope. With the results she has received. That this disease also may some day be a treatable illness.

July 1, 2009

A pinch and a punch at the first of the month and no returns. Pars



Note: Paul Beingessner's funeral is tommorow. Scroll further down for obituary

Happy Canada Day, 2009 !

Canada Day Protocol 2009


1. Don't bake cookies using margarine, and then copy the list of ingredients used in the manufacture of that margarine and fasten that list to the cookie jar when you bring it for the pot luck at the family picnic. They'll think you're trying to poison everyone.

2. Don't feed warm beer to your aunty's washed & curled poodle. The white wool around the rump will turn brown when the poodle inevitably begins scouring. You won't be included in the will.

3. Shuffle through the purple bills in your wallet. Don't draw a moustache on Sir John A. McDonald's face. Instead, ask your nieces and nephews who he is. If they know, give them the ten dollar bill and let them fight over it. Good Canada Day entertainment.

4. Be direct with your next door neighbor,whom you have judged to be a sicko fruitcake, "I don't know how sick you are, but you need to know that I don't ever want you to ask me to do anything for you again." Don't worry, he'll get the message and never utter your name again.


5. Fly the Union Jack and write a letter to your MP so that he will become aware that you do not just blindly accept legislated change without a good reason forthcoming from him.

These are my proven June nuggets that I am sharing with you , and indeed, they may assist you in becoming a proud Canadian whom others may better relate to, and thereby help you achieve a memorable 2009 Canada Day. Pars

Wheat Board Bites the Dust in Court

Manitoba farmer aka Wheat Grower Penner phoned this afternoon, a 'pick-me-up' call of sorts, and it was a really welcome chat, as he knew I am spending a bit of time tending a family member who is ill with cancer. Besides, he's an interesting cuss.

He'd emailed a copy of the Government versus Wheat Board June 23, 2009 judgement. Looks like there is still one Justice in Canada well able to read for himself, aha, what the legislation itself says, as opposed to the Wheat Board telling a Justice what the Wheat Board's interpretation is.

Here is a copy of last week's decision. It publically pounds the initial decision of Justice Hughes' over the head, with words, and deservedly so: pars


Date: 20090623
Docket: A-446-08
Citation: 2009 FCA 214

CORAM: NOËL J.A.
EVANS J.A.
LAYDEN-STEVENSON J.A.

BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
THE CANADIAN WHEAT BOARD
Respondent



Heard at Ottawa, Ontario, on June 10, 2009.
Judgment delivered at Ottawa, Ontario, on June 23, 2009.

REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: EVANS J.A.
LAYDEN-STEVENSON J.A.

Federal Court of Appeal
Cour d'appel fédérale

Date: 20090623
Docket: A-446-08
Citation: 2009 FCA 214

CORAM: NOËL J.A.
EVANS J.A.
LAYDEN-STEVENSON J.A.

BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
THE CANADIAN WHEAT BOARD
Respondent

REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision of Justice Hughes (the Federal Court Judge), wherein he allowed an application for judicial review by the Canadian Wheat Board (the Wheat Board or the respondent) and declared that: Order in Council P.C. 2006-1092 dated October 5, 2006 (the Direction/Order) issued by the Governor in Council pursuant to subsection 18(1) of the Canadian Wheat Board Act, R.S.C., 1985, c. C-24 (the Act) was ultra vires the Act; violated the guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, c.11 (the Charter); and that there was no justification for the violation of that guarantee, and was therefore of no force and effect.
[2] The Direction/Order was issued as a result of a disagreement between the federal government (the government) and the Wheat Board as to the Board’s future role, specifically whether it should retain its statutory monopoly. The policy of the government is to give producers, who are divided on the issue, a choice to market grain through the Wheat Board or through other means. The Wheat Board, on the other hand, wishes to retain its monopoly powers.

BACKGROUND
[3] The Direction/Order prohibits the Wheat Board from expending funds on advocating the retention of its monopoly powers. It reads:

Her Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to subsection 18(1) of the Canadian Wheat Board Act, hereby directs The Canadian Wheat Board to conduct its operation under the Act in the following manner:

(a) it shall not expend funds, directly or indirectly, on advocating the retention of its monopoly powers, including the expenditure of funds for advertising, publishing or market research; and

(b) it shall not provide funds to any other person or entity to enable them to advocate the retention of the monopoly powers of The Canadian Wheat Board.
Sur recommandation du ministre de l'Agriculture et de l'Agroalimentaire et en vertu du paragraphe 18(1) (voir référence a) de la Loi sur la Commission canadienne du blé, Son Excellence la Gouverneure générale en conseil donne instruction à la Commission canadienne du blé d'exercer de la manière ci-après les activités prévues par cette loi :

a) elle n'engagera aucuns fonds, de façon directe ou indirecte, notamment à des fins de publicité, de publication ou d'étude de marché, pour prôner le maintien de ses pouvoirs monopolistiques;

b) elle ne versera aucuns fonds à quiconque – personne ou entité – pour lui permettre de prôner le maintien de ses pouvoirs monopolistiques.
[4] The Wheat Board maintains that this Direction/Order was issued without authority and is therefore illegal. The provisions of the Act, which are directly relevant to the authority of the Governor in Council to issue directions and the obligation of the directors and officers of the Wheat Board to comply with such directions, are as follows:

Duty to comply
3.12 (2) The directors and officers of the Corporation shall comply with this Act, the regulations, the by-laws of the Corporation and any directions given to the Corporation under this
Act.


Directions to the Corporation
18. (1) The Governor in Council may, by order, direct the Corporation with respect to the manner in which any of its operations, powers and duties under this Act shall be conducted, exercised or performed.


Directors
(1.1) The directors shall cause the directions to be implemented and, in so far as they act in accordance with section 3.12, they are not accountable for any consequences arising from the implementation of the directions.


Best interests
(1.2) Compliance by the Corporation with directions is deemed to be in the best interests of the Corporation.
…
Obligation particulière
3.12 (2) Ils doivent observer la présente loi et ses règlements, ainsi que les règlements administratifs de la Commission et les instructions que reçoit celle-ci sous le régime de la présente loi.


Décrets
18. (1) Le gouverneur en conseil peut, par décret, donner des instructions à la Commission sur la manière d’exercer ses activités et ses attributions.


Administrateurs
(1.1) Les administrateurs veillent à la mise en œuvre des instructions données à la Commission, mais ils ne peuvent être tenus pour responsables des conséquences qui en découlent si, ce faisant, ils observent l’article 3.12.


Présomption
(1.2) La Commission est, lorsqu’elle observe les instructions qu’elle reçoit, présumée agir au mieux de ses intérêts.

[…]
[5] The Regulatory Impact Analysis Statement (RIAS) which accompanied the issuance of the Direction/Order is also relevant:

REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order)

…

A commitment was made during the 2006 federal election campaign to give western Canadian wheat and barley producers the option of participating voluntarily in the CWB. The CWB has taken a public position opposing marketing choice. It is important that the CWB, as a shared-governance entity, not undermine government policy objectives. This Governor in Council order directing the CWB not to spend money on advocacy activity will ensure that the CWB carries out its operations and duties in a manner which is not inconsistent with the federal government’s policy objectives. Direction Orders of this type may be made pursuant to the authority found in section 18 of the CWB Act.


Alternatives
The alternative would be to allow the CWB to spend funds towards advocating publicly against the policy goad of the federal government to give western grain producers the freedom to make their own marketing and transportation decisions, and to allow them to participate voluntarily in the CWB.


Benefits and Costs
As the funds available to the CWB are the funds of producers, some of whom favour marketing choice, those funds should not be used for a campaign which is aimed at preserving the monopoly. Producers who are in favour of marketing choice will support action to protect producers’ funds from being used to advocate for retention of the monopoly. Producers who support the continuation of the monopoly and the CWB can be expected to oppose the Direction Order. The Direction Order will ensure that the Canadian values of conducting votes that are fair and democratic and that provide equal opportunity to all positions are respected by the CWB during the consultation process for determining the future direction of the CWB.


The Direction Order does not prevent the CWB from spending funds to carry out its object of marketing grain in an orderly manner nor does it infringe on the rights of individual directors or CWB staff to make statements in public in their own name and without financial support from the CWB. It would, however, prohibit the spending of funds by the CWB for the purpose of advocating the retention or its monopoly powers and would prohibit the CWB from funding third parties for that purpose.

…

RÉSUMÉ DE L’ÉTUDE D’IMPACT
DE LA RÉGLEMENTATION
(Ce résumé ne fait pas partie du décret.)

[…]

Pendant la campagne électorale fédérale de 2006, l’engagement a été pris de laisser aux producteurs de blé et d’orge de l’Ouest canadien le choix de recourir ou non à l’entremise de la Commission. Cette dernière a pris position publiquement contre le libre choix du mode de commercialisation. Or, il est crucial que la Commission, en tant qu’organisme à régie partagée, ne mine pas les orientations stratégiques du gouvernement fédéral. Le décret donnant instruction à la Commission de ne pas consacrer de fonds pour prôner le maintien de son monopole, permet de garantir que celle-ci exerce ses attributions et activités d’une manière qui ne va pas à l’encontre de ces orientations. Le pouvoir de donner des instructions par décret est prévu à l’article 18 de la LCCB.


Solutions envisagées
L’autre solution envisagée est d’autoriser la Commission à consacrer des fonds à une prise de position publique contre l’orientation prise par le gouvernement fédéral, de donner aux producteurs de grain de l’Ouest canadien la possibilité de choisir les modes de commercialisation et de transport qui leur conviennent et, par le fait même, la possibilité de décider s’ils veulent ou non commercialiser leurs produits par l’entremise de la Commission.


Avantages et coûts
Puisque les fonds que gère la Commission proviennent des producteurs — dont certains sont en faveur d’un libre choix du mode de commercialisation de leurs produits –, ces fonds ne devraient pas servir une campagne visant à maintenir le monopole de la Commission. Les producteurs en faveur d’un libre choix appuieront les mesures visant à empêcher la Commission d’utiliser leurs fonds pour prôner le maintien de son monopole. Les producteurs en faveur du statu quo et de la Commission s’opposeront vraisemblablement, quant à eux, au décret. Ce dernier fera en sorte que les valeurs canadiennes qui consistent à tenir des votes justes et démocratiques et à donner une importance égale à
tous les points de vue soient respectées par la Commission lors du processus de consultation visant à déterminer l’orientation future de la Commission.


Le décret n’empêche pas la Commission d’engager des fonds pour l’exécution de son mandat, qui est d’organiser la commercialisation du grain, ni ne restreint le droit des administrateurs ou des employés de la Commission de faire, sans être rémunérés par elle, des déclarations publiques en leur propre nom. Le décret interdit cependant à la Commission d’engager des fonds pour prôner le maintien de ses pouvoirs monopolistiques et de verser des fonds à des tiers à cette fin.

[…]


[6] It is useful to briefly consider the mandate of the Wheat Board, its operations and the circumstances which led to the present dispute.

[7] The Wheat Board is a marketing agency created by the Act which has been granted marketing and regulatory powers to market grain for producers. Based in Winnipeg, it has approximately 460 employees and represents approximately 75,000 grain producers (Measner Affidavit, Appeal Book, Vol. I, p. 76, para. 26). Pursuant to the object set out in section 5 of the Act, the Wheat Board has control over the interprovincial and export trade of all wheat and barley in Canada, as well as control over the interprovincial and export of wheat and barley produced in the “designated area” (Martin Affidavit, Appeal Book, Vol. III, p. 870, para. 10). The “designated area” consists of the provinces of Manitoba, Saskatchewan and Alberta, and that part of British Columbia known as the Peace River District.

[8] The Wheat Board pays producers an initial price set by regulation on delivery and may make adjustment payments, with the approval of the Governor in Council, as the crop production for that year is sold. The government is required to guarantee certain funds during certain periods. At the end of a crop year, or “pooling period”, the total receipts from selling the grain in the pool, less expenses of the Wheat Board associated with its operations attributable to that grain, are remitted to the producers. The Wheat Board determines what expenses are charged to the pool accounts and paid for by producers (Reasons, para. 36; Martin Affidavit, Appeal Book, Vol. III, p. 874, para. 17).

[9] Under the scheme, no one may move wheat and barley destined for domestic human consumption from one province to another, or for export, without the approval of the Wheat Board (Martin Affidavit, Appeal Book, Vol. III, p. 874, para. 18). These prohibitions combined with the Wheat Board’s obligation to market grain under Part III have historically been described as the “single desk” (Ritter Affidavit, Appeal Book, Vol. V, p. 1778, para. 10).

[10] The Act was amended in 1998 with the result that the Wheat Board ceased to be an agency of the Crown (the 1998 amendments). In particular, subsection 4(2) of the Act now expressly provides that the Wheat Board is not an agent of the Crown or a Crown Corporation. Pursuant to section 47.1 the designated Minister under the Act (the Minister) must consult with the board of directors and conduct a producer vote prior to the introduction of legislation to amend the application of Parts III or IV of the Act to particular grains.

[11] The 1998 amendments also provided for the establishment of a 15 member board of directors. Ten of the directors are elected directly by producers, four are appointed by the Governor in Council on the recommendation of the Minister and the remaining director, the President and Chief Executive Officer of the Wheat Board, is appointed by the Governor in Council, following prior consultation with the board of directors (Reasons, paras. 31 and 36). As a result, the majority of the directors are elected by producers.

[12] At the same time, the statutory authority of the Governor in Council to issue directions pursuant to subsection 18(1) was maintained by the 1998 amendments and subsections 3.12(2), 18(1.1), 18(1.2) were added (these are reproduced at the beginning of these Reasons).

[13] The Federal Court Judge describes the disagreement between the government and the directors of the Wheat Board as follows (para. 44):

… whether the Wheat Board should retain its monopoly powers, that is, operate as a “single desk”, a view taken by a majority of the board of directors of the Wheat Board, or whether there should be an open market or some form of dual marketing as an intermediate position.


[14] The position of the government was stated in a letter dated April 11, 2006 sent to the President of the Wheat Board (Reasons, para. 44):

The new Conservative government has been clear on its intent to allow for voluntary participation in the Canadian Wheat Board. Once implemented, this policy will allow farmers the freedom to make their own marketing and transportation decisions. As the Minister responsible for the Board’s conduct, I would appreciate the co-operation of the Board’s management and directors in complying with this new direction, the policy of the Government of Canada.

I would note that all communication and promotional material issued on behalf of the Board should clearly reflect Government policy. In addition, it is inappropriate for an agency of the Government to spend producers’ money on activities that could be regarded as partisan in nature. The recent advertising campaign encouraging producers to write the Minister could be regarded as a political activity.
I look forward to working with you and the Board in a transition plan to ensure a strong marketing option for farmers who choose to make use of the Canadian Wheat Board.


[15] There followed a series of letters in which the Wheat Board declined to “reflect government policy” (Reasons, para. 45) and the matter culminated with the issuance of the Direction/Order on October 5, 2006.

THE FEDERAL COURT DECISION
[16] The Federal Court Judge noted that a determination as to the true nature of the Wheat Board was essential to the resolution of the application, particularly since the 1998 amendments (Reasons, para. 27).

[17] After reviewing the 1998 amendments (Reasons, paras. 30, 31 and 33), the Federal Court Judge noted that the previous Crown Corporation was replaced by a new Corporation, with a board of fifteen directors charged with the task of directing and managing the affairs of the Corporation, but are nonetheless obliged to follow directions given by the government of the day. This is clear from the addition of subsections 18(1.1) and (1.2) by the 1998 amendments. The Federal Court Judge also noted earlier in his Reasons that subsection 3.12(2) requires the directors and officers to comply with any direction given under the Act (Reasons, paras. 32 and 35).

[18] In describing its operations, the Federal Court Judge explained that the Wheat Board receives, handles and sells grain, and distributes the proceeds, after deductions to the producers. The government is required to guarantee certain funds during certain periods, it gets paid out once most money is received from the sales, and will suffer liability only if there is a shortfall. Thus, the producers provide the stock-in-trade of the Wheat Board and the government guarantees funding (Reasons, para. 36).

[19] The Federal Court Judge understood the Attorney General to argue “that the government has financial exposure under the Act and is therefore entitled to protect its financial interests by way of direction” (Reasons, para. 38). He acknowledged that it would be prudent to make an appropriate direction if there is a genuine concern with the preservation of funds or the reduction of risk of loss (idem).

[20] According to the Federal Court Judge, the Direction/Order was couched in terms of expenditure of funds. However nowhere in the record was there any evidence that genuine consideration was given to the nature or extent of the funds that were in issue or at risk (Reasons, para. 43).

[21] The Federal Court Judge went on to find that despite its apparent purpose, the Direction/Order was primarily intended to silence the Wheat Board “… in respect of any promotion of a “single desk” policy that it might do.” (Reasons, para. 46). He further noted that an Order that is “apparently directed to one purpose, [but] is really directed to a different purpose [is] not within the scope of the enabling statute, properly construed” (Reasons, para. 48).

[22] The Federal Court Judge insisted that it may be appropriate for a direction to be issued to constrain or direct the expenditure of funds where it is demonstrated that there is a real concern that the obligation of Parliament to make good upon a significant shortfall of money is likely to occur. However, no such situation had been shown to exist on the record before him (Reasons, para. 49). According to the Federal Court Judge, the true purpose was to silence the Wheat Board, and this purpose is not authorized. He therefore concluded that the Direction/Order was ultra vires and of no effect (Reasons, para. 50).

[23] Although this conclusion was dispositive of the issue before him, the Federal Court Judge went on to consider whether the Direction/Order was also in breach of the Charter. The issue in this case was whether the Wheat Board is an entity that can seek the protection of the Charter, thereby allowing it to invoke the right of freedom of expression provided by section 2(b) (Reasons, paras. 53 and 54).

[24] According to the Federal Court Judge, the purpose and effect of the Direction/Order was to restrict a particular form of expression, namely advocacy against government policy respecting the Wheat Board. If the Wheat Board were an entity entitled to invoke the Charter, the Direction/Order would be invalid for that reason (Reasons, para. 55).

[25] The Federal Court Judge then quoted a passage from the decision of the Supreme Court in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 47 (Godbout), which held that certain entities, although not strictly speaking “governmental” could be held to be accountable under the Charter. He said (Reasons, para. 58):

What the Supreme Court is recognizing is that an entity other than that which is not strictly the government or one of its agencies, can be said to be the government if certain factors such as degree of control, are evident. It must therefore be equally true that an entity that is not clearly the government or one of its agency (sic) that is subject to government control over what would otherwise be independent action, must be in those circumstances, able to invoke the Charter.


[26] Applying this reasoning, the Federal Court Judge held that the Wheat Board, as constituted since the 1998 amendments, is not government and as such, can claim Charter protection. Since the Direction/Order is not authorized under the Act and impinges on freedom of expression, he held that it violates section 2(b) of the Charter (Reasons, para. 59).

[27] Finally, the Federal Court Judge held that the Direction/Order is not saved under section 1 of the Charter (Reasons, para. 60).

ISSUES RAISED ON APPEAL
[28] The appellant contends that the reasoning of the Federal Court Judge on both the vires and the Charter issue is fundamentally flawed. With respect to the vires issue, the appellant contends that the Federal Court Judge further erred by conducting his analysis on the basis that the authority provided under subsection 18(1) is limited to the protection of government funds and in holding that the Direction/Order was issued for an improper purpose.

[29] In this respect, the appellant acknowledges that the purpose of the Direction/Order was to prevent the Wheat Board from spending the money of producers to promote a “single desk” policy. However, the appellant submits that this comes within the authority conferred on the Governor in Council by subsection 18(1) of the Act and within the scheme of the Act as a whole. According to the appellant, the Federal Court Judge in his lengthy Reasons did not confront the broad grant of authority conferred by that provision and explain why the Direction/Order was not authorized.

[30] The appellant asserts that it never took the position before the Federal Court Judge that the Direction/Order was issued for the purpose of protecting government funds. The appellant argues that the Federal Court Judge’s conclusion that the “true” purpose of the Direction/Order was concealed is without foundation. In this respect, the appellant stands by the contents of the RIAS.

[31] With respect to the Charter issue, the appellant contends that the Federal Court Judge erred both in failing to undertake the analysis required by the case law in order to determine if the Wheat Board is part of the government and in concluding that the Wheat Board, a creature of statute and subject to substantial control, is somehow to be treated as having Charter rights exercisable against government.

[32] The respondent for its part takes the position that the Federal Court Judge came to the proper conclusion on both the vires and the Charter issues. In asserting this position, it essentially stands by the Reasons of the Federal Court Judge.

[33] With respect to the vires issue, the respondent supports the Federal Court Judge’s finding that despite being presented as a measure directed towards control of funds, the Direction/Order was “motivated principally to silencing the Wheat Board in respect of any promotion of a “single desk” policy that it might do” (Memorandum of the respondent, para. 35).

[34] According to the respondent, the Federal Court Judge proceeded on proper principle when he held that the use of subsection 18(1) to restrain expenditures might, in certain circumstances, be appropriate and accord with the purpose and object of the Act (idem, para. 41). However, the Federal Court Judge properly restrained the exercise of discretion by the Governor in Council given that it acted “with an improper intention in mind” (idem, para. 62). “Shortly put, if a power granted for a certain purpose is used for another, the power has not been validly exercised” (idem, para. 63).

[35] With respect to the Charter issue, the respondent contends that the Federal Court Judge correctly held, for the reasons that he gave, that the Wheat Board is entitled to Charter protection and that the Direction/Order breaches the Wheat Board’s right to free expression and cannot be justified under section 1 of the Charter.

ANALYSIS
[36] Turning first to the vires issue, the Court must determine on a standard of correctness whether the Direction/Order was authorized by the power delegated to the Governor in Council pursuant to subsection 18(1) of the Act (Dunsmuir v. New Brunswick, 2008 SCC 9, para. 59).
[37] It is well settled law that when exercising a legislative power given to it by statute, the Governor in Council must stay within the boundary of the enabling statute, both as to empowerment and purpose. The Governor in Council is otherwise free to exercise its statutory power without interference by the Court, except in an egregious case or where there is proof of an absence of good faith (Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, p. 111; Attorney General of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735, p. 752).

[38] The Federal Court Judge in this case conducted his analysis on the basis that subsection 18(1) provides authority for constraining or directing the expenditure of funds and found, as a fact, that the appellant had failed to show that the Governor in Council had a genuine concern relating to the protection of government funds. He said in this regard (Reasons, para. 49):

… it may well be appropriate for a direction to be issued to constrain or direct the expenditure of funds for a proper purpose where it has been demonstrated that there is a real concern that the obligation of Parliament to make good upon a significant shortfall of money is likely to occur. No such situation has been demonstrated on the evidence in the record.


[39] Earlier on, he expressed the same view in the following terms (Reasons, para. 43):

The direction is couched in terms of expenditure of funds, however nowhere in the record is there any evidence that genuine consideration was given to the nature or extent of funds that were in issue or at risk. …


[40] In the end, the Federal Court Judge found: “that the directive is motivated principally to silencing the Wheat Board in respect of any promotion of a “single desk” policy that it might do” (Reasons, para. 46).

[41] The appellant does not take issue with this last conclusion. He acknowledges that the purpose of the Direction/Order is to prevent the Wheat Board from using producer funds to advocate a “single desk” policy. However, the appellant takes issue with the premise upon which the Federal Court Judge conducted his analysis and the suggestion (Reasons, para. 48) that this purpose was hidden under the guise of a financial concern.

[42] The Federal Court Judge does not explain why he conducted his analysis on the basis that the authority for issuing directions is aimed at protecting government funds. On a plain reading, subsection 18(1) is not restricted to the protection of funds. While certain actions, such as those with financial implications that could affect the government are explicitly subject to government approval (see for instance paragraphs 6(1)(c), 6(1)(d) or 9(1)(b)), subsection 18(1) is not so limited. This provision allows the Governor in Council to issue directions “… with respect to the manner in which any of its operations, powers and duties … shall be conducted, exercised or performed.” On its face, the power to direct extends to the full range of activity which the Act authorizes the Wheat Board to conduct. To the extent that the Federal Court Judge was of the view that the authority so conferred is aimed at protecting government funds, he erred.

[43] The Federal Court Judge also appears to have understood that the Direction/Order was intended to protect government funds (Reasons, para. 38). However, counsel for the appellant did not recall taking this position before the Federal Court Judge and counsel for the respondent was unable to point to anything on the record indicating that such a position had been taken.

[44] The purpose of the Direction/Order is apparent from its wording and is further set out in the RIAS which accompanied its issuance. The use of the RIAS in ascertaining the purpose of delegated legislation is well established (RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, paras. 90 and 91; Friesen v. Canada, [1995] 3 S.C.R. 103, para. 63; Bayer Inc. v. Canada (Attorney General) (1999), 87 C.P.R. (3d) 293 (F.C.A.), para. 10).

[45] The plain purpose of the Direction/Order, when read together with the RIAS, is to ensure that the Wheat Board no longer advocates a mandate that is at odds with government policy using funds made available to it under the Act. Nowhere is it made to appear that the purpose is to protect funds. The suggestion by the Federal Court Judge that the true purpose of the Direction/Order was concealed under the guise of a non-existent financial purpose is, with respect, misconceived.

[46] The first step in a vires analysis is to identify the scope and purpose of the statutory authority pursuant to which the impugned order was made. This requires that subsection 18(1) be considered in the context of the Act read as a whole. The second step is to ask whether the grant of statutory authority permits this particular delegated legislation (Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595, para. 14).
[47] Turning to the first step, subsection 18(1) is very broad. As noted, it authorizes the government, through the auspices of the Governor in Council, to direct the Wheat Board with respect to the full range of activity conducted by the Wheat Board.

[48] Counsel for the respondent argued that the 1998 amendments implicitly limit the broad grant of authority set out in subsection 18(1). He referred in particular to the fact that the Wheat Board ceased to be an agent of the Crown or a Crown Corporation (subsection 4(2)), that the majority of the directors was henceforth elected by producers (subsection 3.02(1)), and that the Minister responsible for the Wheat Board was bound by statute to consult with the board of directors and conduct a producer vote before introducing legislation affecting the monopoly created under the Act (section 47.1).

[49] These changes do point to an increased role for the board of directors. However, when these amendments were brought, subsection 18(1) was not only preserved but strengthened. Beyond subsection 3.12(2) which sets out the directors’ duty to comply with any direction given pursuant to subsection 18(1), subsection 18(1.2) was added to provide that compliance with a direction is “deemed” to be in the best interest of the Wheat Board. At the same time, the directors were relieved from liability which could arise from such compliance (subsection 18(1.1)).

[50] When regard is had to the 1998 amendments as a whole and the fact that since that time, the majority of the directors are elected by producers, it becomes clear that subsection 18(1) was intended to provide the Governor in Council with the authority to direct the Wheat Board on any matter of governance in the event of a disagreement with the board of directors. By requiring that this authority be exercised formally and in public, by Order in Council, Parliament ensured that the government would be accountable politically for the use made of that authority. The repository of the power and the mode of its exercise reinforce the broad scope of the authority set out in subsection 18(1) and Parliament’s intent that the government should retain the ultimate power to decide in the event of a disagreement.

[51] I should add that given the importance of the 1998 amendments, the fact that the power to direct has never been used over the Wheat Board’s objection and that directions have been resorted to sparingly (21 times over the last 45 years) (Measner Affidavit, Appeal Book, Vol. I, p. 74, para. 17) is of no significance for the purpose of this proceeding.

[52] The second question is whether the Direction/Order comes within the ambit of subsection 18(1). This requires an identification of the purpose of the Direction/Order. As noted, the purpose can be gleaned from the Direction/Order itself as well as the RIAS: the Wheat Board is directed not to expend funds accruing to it under the Act to advocate retention of its monopoly powers or to provide such funds to other persons to enable them to do so (see para. 3 above). The Direction/Order being limited to the use of funds, individual directors and staff of the Wheat Board remain free to advocate the view of their choice without financial support from the Wheat Board (RIAS, supra, para. 5).

[53] The Direction/Order also appears to be consistent with the Act read as a whole. Pursuant to section 5, the Wheat Board’s mandate is to market, in interprovincial and export trade, grain grown in Canada. To carry out this mandate, the Wheat Board is given extraordinary powers over grain producers, including the requirement that producers sell their wheat and barley to the Wheat Board, and the authority to deduct corporate expenses before remitting proceeds to the producer. The authority to deduct corporate expenses from the pools is set out in subsection 33(1) of the Act. None of the expenses listed pertain to advocacy by the Wheat Board on matters of public policy.

[54] If advocacy by the Wheat Board on matters of public policy using producer funds is within its corporate objects, it could only be by virtue of the general power set out in paragraph 6(k), which empowers the Wheat Board “generally to do all such acts and things as may be necessary or incidental to carrying on its operations under [the] Act”.

[55] However, even if such a right exists, it is subject to the authority set out in subsection 18(1). I note in this respect that beyond the unlimited scope of the power to direct and its mandatory nature, compliance with a direction is “deemed” by the Act to be in the best interest of the Wheat Board (subsection 18(1.2)).

[56] It follows that, after the Direction/Order was issued, spending producer funds to advocate a “single desk” was no longer in the best interest of the Wheat Board for purposes of the Act. If intra vires, the spending restriction embodied in the Direction/Order has the same effect as if it was written in the Act itself. That is the inescapable effect of subsection 18(1.2).
[57] I therefore conclude that the Direction/Order comes within the ambit of subsection 18(1) and that the Federal Court Judge erred in holding otherwise.

[58] The same reasoning disposes of the Charter issue. The conclusion reached by the Federal Court Judge on this aspect of the case is that the Wheat Board is entitled under the Act to use producer funds to advocate its own view and that preventing the Wheat Board from exercising that right, as the Direction/Order purports to do, infringes on the Wheat Board’s freedom of expression as guaranteed by section 2(b) of the Charter (Reasons, para. 59).

[59] The Wheat Board is a creature of statute and as such, it has no powers, rights and duties save those bestowed on it by the Act. Since I have found that as a result of the Direction/Order the Wheat Board has no authority under the Act to use producer funds to advocate against government policy, there is no Charter right to protect pursuant to section 2(b). In this respect, counsel for the respondent acknowledged that his case was premised on the assumption that the Act does permit the expenditure of funds for advocating a “single desk”.

[60] The question whether a body having some of the trappings of government, such as the Wheat Board, can seek the protection of the Charter therefore needs not be answered in the present appeal. However, the Court should not be taken as endorsing the reasoning of the Federal Court Judge on this point.

[61] For these reasons, I would allow the appeal with costs, set aside the decision of the Federal Court Judge and giving the judgment which he ought to have given, I would dismiss the application for judicial review with costs.


“Marc Noël”
J.A.

“I agree.
John M. Evans J.A.”

“I agree.
Carolyn Layden-Stevenson J.A.”





FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-446-08

(APPEAL FROM A JUDGMENT OF JUSTICE HUGHES OF THE FEDERAL COURT DATED JUNE 19, 2008, NO. T-2138-06 AND T-249-07.)

STYLE OF CAUSE: Attorney General of Canada and the Canadian Wheat Board

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: June 10, 2009

REASONS FOR JUDGMENT BY: Noël J.A.

CONCURRED IN BY: Evans J.A.
Layden-Stevenson J.A.

DATED: June 23, 2009

APPEARANCES:
Stephen F. Vincent
Ryan Rempel

FOR THE APPELLANT

J.L. McDougall, Q.C.
Matthew Fleming
James E. McLandress

FOR THE RESPONDENT


SOLICITORS OF RECORD:
HILL DEWAR VINCENT
Winnipeg, Manitoba

FOR THE APPELLANT

JOHN H. SIMS, Q.C.
Winnipeg, Manitoba

FOR THE APPELLANT

FRASER MILNER CASGRAIN LLP
Toronto, Ontario

FOR THE RESPONDENT