By: Andrew Lawton
November 7, 2018
How can something be so universally wanted, yet also so elusive?
That’s the dilemma facing Canadians when it comes to eradicating interprovincial trade barriers. I know, it’s such a riveting subject. Even if you haven’t encountered these barriers directly, you’ve likely paid a price for them through businesses you’ve patronized.
But for all the talk of easing red tape and tackling international trade, interprovincial trade doesn’t seem to have a champion in government. Much of this can be linked back to provincial governments wishing to maintain control, and federal governments not wanting to rock the boat.
Provincial governments should have wide latitude on a number of areas of public policy. The legality of free trade amongst each other’s individuals and businesses isn’t one of them though.
The Charter of Rights and Freedoms guarantees all Canadians residential and economic mobility across provincial lines. More importantly, the 151-year old Constitution Act says without equivocation that “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”
Since Confederation, the country’s most supreme law assures the unrestricted flow of goods between provinces. In every poll ever done on the subject, an overwhelming number of Canadians agree. Politicians across party lines do as well.
Yet still, New Brunswick’s Gerard Comeau was fined for bringing beer from Quebec into his home province. Despite mass frustration with the case, little has changed.
Last Thursday I was invited to attend a daylong conference on interprovincial trade hosted at Ottawa’s Shaw Centre by the Canadian Constitution Foundation, the Montreal Economic Institute and the Atlantic Institute for Market Studies.
The aptly titled One Country One Market summit was a cross-partisan affair, featuring as speakers a former Conservative cabinet minister, a former NDP premier, a former Liberal leadership candidate, and Dominic LeBlanc, the present Liberal minister of internal trade.
Among the former politicians, there was there was unanimous agreement that things need to change, but also unanimous doubt that anything will.
LeBlanc tried to paint a rosier portrait than the other speakers, touting his government’s progress on the issue, most notably last year’s implementation of the Canadian Free Trade Agreement.
Ironically, it was former Liberal MP and leadership contender Martha Hall Findlay who gave the most scathing rebuke of CFTA, arguing it’s little more than window dressing.
While CFTA is based on a negative list (meaning everything is included in the agreement unless specifically noted), the exemption list is so long it’s farcical.
The CFTA website offers an unintentional glimpse in how the policy seems to be about the exceptions, rather than the rules.
“Its objective is to reduce and eliminate, to the extent possible, barriers to the free movement of persons, goods, services and investments within Canada and to establish an open efficient, and stable domestic market,” the site says.
The devil is in the details, as they say. Here, we find that in “to the extent possible.” It’s a lot easier for lawmakers to take topics off the table—declare them impossible, that is—than to break apart the cronyism that put so many of these restrictions on the books in the first place.
It’s so bad that trade outside of the country is often easier than trade within the country. This is especially true with alcohol, where an American could order a case of British Columbia wine shipped to their home, but I as an Ontarian couldn’t do the same.
Anytime governments have tried to tackle the issue, they seem to ignore that the constitution is clear: trade between provinces must be free.
In fairness, even the Supreme Court was too dense to understand this. When the court ruled against Comeau, the judges forgot how a constitution is supposed to work.
One line from the decision that was mocked by several speakers at last week’s conference deserves a flogging here as well.
“If to be ‘admitted free’ is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast,” the majority decision says. “Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid.”
Um, yes. Precisely. The point of constitutional liberties is that they are “vast.” Though instead of endorsing the idea that the constitution should take a flamethrower to unconstitutional programs, the Supreme Court decided the complexity of dismantling these schemes trumps the fact they shouldn’t exist in the first place.
With the loss of the Comeau case, it’s the politicians rather than the judiciary that need to put forward a solution. The odds of that happening seem about as real as me getting a six-pack from Quebec anytime soon.
Andrew Lawton is a fellow at the True North Initiative