Registration

SOR/2008-255 September 4, 2008

CANADIAN WHEAT BOARD ACT

Regulations Amending the Regulations respecting the Election of Directors of The Canadian Wheat Board

P.C. 2008-1597 September 4, 2008

Whereas, pursuant to subsection 3.06(2) (see footnote a) of the Canadian Wheat Board Act (see footnote b), the Minister of Agriculture and Agri-Food has consulted with the board of directors of the Canadian Wheat Board respecting the proposed Regulations Amending theRegulations respecting the Election of Directors of The Canadian Wheat Board;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to section 3.06 (see footnote c) of the Canadian Wheat Board Act (see footnote d) , hereby makes the annexed Regulations Amending the Regulations respecting the Election of Directors of The Canadian Wheat Board.

REGULATIONS AMENDING THE REGULATIONS RESPECTING THE ELECTION OF DIRECTORS OF THE CANADIAN WHEAT BOARD

AMENDMENTS

1. The portion of section 24 of the Regulations respecting the Election of Directors of The Canadian Wheat Board (see footnote 1) before the definition “advertising” is replaced by the following:

24. The following definitions apply in sections 25 to 28.02.

2. Section 28 of the Regulations is repealed.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

Section 28 of the Regulations imposed a limit of $10,000 on third-party spending on advertising across all electoral districts during the period of elections for directors of the CWB. The Government believes that removing this limit will create an environment for a robust and fulsome exchange of information and points of view on key issues regarding the direction of the CWB during the election period.

Objectives

The objective of the regulatory amendment is to remove the limit on third-party spending on advertising during elections for directors of the CWB. This is intended to promote the participation of farmers and other interested persons in a thorough, public debate about the future direction of the CWB during the election period.

Description

The Canadian Wheat Board Act (CWB Act) provides for the constitution and powers of the CWB. The CWB is a shared-governance corporation with the object of marketing grain grown in Canada, in an orderly manner, in inter-provincial and export trade. The CWB’s Board of Directors is comprised of 15 directors, 10 of which are elected by grain producers and 5 of which are appointed by the Governor in Council. There will be an election for 5 of the elected directors between September 2, 2008 and November 28, 2008 with the successful candidates assuming office on December 31, 2008.

The Regulations provide that any person who is not a candidate, and any group, shall, prior to incurring any advertising expenses during an election period, register with the election coordinator as a third-party intervenor.

Section 28 of the Regulations put limits on third-party spending on “advertising expenses” which are defined as “amounts paid and liabilities incurred for the production, publication, broadcast and distribution of any advertising for the purpose of promoting or opposing, directly or indirectly during an election period, a particular candidate or group of candidates.” A third-party intervenor may not expend more than a total of $10,000 for advertising expenses during an election period for all electoral districts. Pursuant to section 28.01 of the Regulations, a third-party intervenor must identify itself in any advertising placed by it and indicate that it has authorized the advertising.

Section 28.02 of the Regulations provides that within two months after the end of the election period, the third party must file a statement with the election coordinator providing the name of each donor that donates more than $100, as well as the amount of the donation to the third-party intervenor, an accounting of the advertising expenses made during the election period, and a statutory declaration attesting to the accuracy and completeness of the information.

This regulatory amendment will repeal section 28 of the Regulations. Maintaining the regulatory requirements for registration and reporting by third parties to the election coordinator will preserve the transparency of third-party advertising that is undertaken during the election period.

In accordance with sections 25 and 26 of the Regulations, candidates are limited to spending a maximum of $15,000 on all election expenses, and any donor that donates more than $100 in cash, goods or services to support a candidate, must be identified in the candidate’s report to the election coordinator.

Maintaining the spending limits for candidates will preserve equity of spending and fairness amongst the candidates within each individual electoral district.

R egulatory and non-regulatory options considered

A regulatory option is the only approach to change the Regulations. Other regulatory alternatives to the amendment could include

1. not amending the Regulations;

2. increasing the limit on third-party spending to an amount greater than $10,000;

3. removing or increasing the spending limit for both candidates and third parties; and

4. repealing the registration and reporting requirements for third parties as well as the spending limit.

These alternative options would not adequately meet the objective of allowing a thorough, public debate about the future direction of the CWB during the election period while preserving transparency of third-party advertising activity and also equity of spending amongst candidates in specific electoral districts.

Removing the limit on third-party spending on advertising during elections for directors of the CWB will create an environment for the broad dissemination of information across all electoral districts by third parties through different advertising vehicles. This will enable farmers and other interested persons to participate in a thorough, public discussion about the future direction of the CWB during the election period and will help eligible voters to make a better-informed choice when voting.

Benefits and costs

This amendment will remove restrictions on spending on advertising for third parties who choose to undertake it. It will impose no costs.

The amendment will allow the dissemination of information through different advertising vehicles, thereby enabling a more robust and fulsome exchange of information and points of view. This will enable voters to make better-informed choices among candidates for the Board of Directors.

Cost-benefit statement — Qualitative impacts

Western Canadian grain farmers

Removal of the limits on third-party spending on advertising during the election period will allow for the dissemination of information to promote a thorough public debate about the future direction of the CWB and the services that it provides to farmers. Such a debate during the election of CWB directors will be beneficial to all western Canadian grain farmers in making an informed choice amongst the candidates when voting.

Candidates

Maintaining the limit on election spending for candidates will preserve fairness amongst the candidates in each electoral district. Spending limits for candidates are justified to ensure equity in the amounts spent by candidates.

Rationale

Removing section 28 of the Regulations, which established a limit on spending on advertising by third parties during the period of an election for directors of the CWB, will create an environment for a thorough debate on the key issues regarding the direction of the CWB and the services that it provides to farmers.

Removal of the limits on third-party spending on advertising during the election period will allow the unlimited dissemination of information by third parties through different advertising vehicles. This will enable farmers and others who wish to do so to participate fully in promoting a thorough public debate about the future direction of the CWB. Such a debate during the election of CWB directors will be beneficial to all western Canadian grain farmers in that eligible voters will be better informed on the candidates and the future direction of the CWB when voting.

Consultation

During the required Ministerial consultations with the CWB’s Board of Directors, the Board of Directors indicated that the third-party spending limit should be considered as part of a comprehensive review of the Regulations after the conclusion of the 2008 director elections. While the CWB is opposed to the removal of the spending limit on third-party advertising, the CWB proposed an alternative amendment to make an inflationary adjustment to both the spending limit for third-party advertising expenses and for candidate election expenses.

The draft amendments to the Regulations appeared in the Canada Gazette, Part I, on August 2, 2008, for a 30-day public comment period. Eighteen submissions were received by September 2, 2008.

Written comments were received from the CWB, one Member of Parliament, the Government of Manitoba, 10 individuals, and the following associations and groups: Friends of the Canadian Wheat Board, Grain Growers of Canada, The Canadian Federation of Agriculture, National Farmers Union and Keystone Agricultural Producers.

The Minister also received correspondence from the Government of Saskatchewan, the Alberta Soft Wheat Producers Commission and one individual commenting on the draft amendments to the Regulations.

With two exceptions, the submissions expressed opposition to the proposed amendment on the grounds that these individuals and organizations are of the view that unlimited third-party spending on advertising would allow intervenors with sufficient funds to unduly affect the results of the vote. Some of these individuals and organizations indicated that unlimited third-party spending on advertising would be unfair to both candidates and farmers in that the messages of individual candidates could be overwhelmed by third-party advertising. There was concern that third-party advertising would impinge upon the opportunity of candidates to speak and to be heard. Several of these individuals and organizations indicated that spending limits on both candidates and third parties are critical to ensure a level playing field and fairness among candidates. Some of these individuals and organizations expressed concern that removal of the third-party spending limit on advertising would lead grain producers to question the integrity of the election results.

Many of the submissions opposing the proposed amendment also argued that there is no evidence of a need for the change.

Concern was expressed that farmers should be allowed to decide which candidate is the best choice to represent them as a Director of the CWB without undue influence from third-party advertising. Concern was also expressed that the public consultation period coincided with harvest.

A number of submissions referred to the 2004 decision of the Supreme Court of Canada regarding third-party spending limits in federal elections. Some of these submissions commented that certain points made on behalf of the majority are also relevant for the elections of Directors of the CWB.

The Grain Growers of Canada and the Government of Saskatchewan supported the proposed amendment. It was noted that the cost of a single, full-page advertisement in a Western Canadian farm paper would exceed the $10,000 spending limit. This organization indicated that the removal of the spending limit would enable a fair exchange of facts and information. This organization indicated that the removal of the spending limit on third-party advertising would allow explanation of messages on issues such as: CWB monopoly powers, export opportunities for wheat and barley, domestic opportunities for wheat and barley, preferential ballots, and candidates’ positions. This organization noted that producers are well-informed and would not be swayed from one side to the other of an issue by advertising.

The Government remains of the view that the removal of the spending limit on third-party advertising is needed to fulfil its objective of facilitating a thorough and comprehensive debate among farmers on the future direction of the CWB during the election period.

Implementation, enforcement and service standards

The Regulations provide that third parties must register with the election coordinator, identify themselves on all advertising and file a report to the election coordinator within two months of the end of the election period. Section 28.1 of the Regulations provides that after the election, the election coordinator will submit a report on the election to the President and CEO of the CWB.

Performance measurement and evaluation

There is no requirement for performance measurement or for an evaluation plan for this regulatory amendment.

Contact

Harold A. Hedley
Special Advisor
Sectoral Policy Directorate
Strategic Policy Branch
Agriculture and Agri-Food Canada
Sir John Carling Building
930 Carling Avenue
Ottawa, Ontario
K1A 0C5
Telephone: 613-759-6534
Fax: 613-759-6612
Email: hedleyh@agr.gc.ca

Footnote a
 S.C. 1998, c. 17, s. 3

Footnote b
 R.S., c. C-24

Footnote c
 S.C. 1998, c. 17, s. 3

Footnote d
 R.S., c. C-24

Footnote 1
 SOR/98-414

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).