Monday, May 09, 2016

History of interprovincial trade and the constitution


Jeffrey Miller's Law Blog draws our attention to the recent decision by a New Brunswick provincial court judge -- not the apex of the Canadian judicial hierarchy, let us say -- that New Brunswick cannot restrict interprovincial movement of alcohol (specifically by a guy who crossed into Quebec and picked up a few two-fours) -- because the constitution of Canada prohibits interprovincial trade barriers. And by extension, milk, wheat, and dairy marketing boards, provincial liquor control boards, provincial licencing of professionals and tradespeople, and who knows what other provincial regulatory regimes, would all be unconstitutional too.

Jeffrey sees this as a low-level judge committing lese-majesté and needing to be slapped down hard [Update: actually he's more balanced than that -- mea culpa] and also as dime-store originalism coming uninvited and unwelcome into Canadian jurisprudence. I'm more interested in the history inside it. The relevant bit of the constitution says:
s. 121 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. 
So, says the beer seller, (supported by the Asper Centre for Constitutional Rights at the University of Toronto), I can buy cheap beer in Quebec and move it to New Brunswick all I want.

Um, yes, I think you are right, says the provincial judge (full-text judgment here), who thereupon overturns a century or so of decisions by the Supreme Court of Canada (and the Judicial Committee of the Privy Council). Jeffery thinks that this judge is about to be resoundingly slapped down by New Brunswick's Queen's Bench, or Court of Appeal, or Supreme Court.  Quite possibly, but in fact, the question is interesting.  What does that clause mean, if it doesn't create a single market within confederation, one that the provinces cannot impede with their own petty regulations?

Traditionally "admitted free" has been taken by top courts to mean "free of tariffs" only, meaning the provinces cannot set up customs posts at their borders and proceed to levy duty on everything. It has not traditionally been taken to forbid all provincial management of business and enterprise within the province by regulation.

The judge and the beer seller had a historian and a political science coming to their aid.  The political scientist offered some thoughts on "constitutional conventions" that can be pretty much be disregarded. The historian was business historian and blogger Andrew Smith, whose previous blog posts on his testimony I had missed.  The judge found Smith to be "one of the world’s most renowned experts on the constitutional moment," whose credentials are "unimpeachable" and whose testimony is "beyond reproach" -- which is pretty nice to have laid down by law!  Smith gave the court (at least by the excerpts in the judgment) a lot of statements from the confederation-makers in which they exalted the trade between the provinces that would expand under confederation once the tariff barriers between them came down. The judge took this as conclusive.

However, the judge's historical culture is pretty limited.  He can't spell "Macdonald" (not alone in that!) and he keeps referring to the pre-confederation Province of Canada as "Upper Canada," as in "the Fathers of Upper Canada (now Québec and Ontario)" and so on. No one seems to have given him any awareness of all the statements by the same constitution-makers that asserted the great powers they intended the provinces to have to run their own affairs, powers that would make them largely autonomous communities, linked only by "some joint authority." He seems to have no cognisance of the old JCPC jurisprudence establishing that since the provinces are responsible governments with their own legislatures, their right to run their own affairs was and is substantial, even to the point of overcoming the disallowance powers also in the text.  All these weighty constitutional issues seem to be pretty new to him.

So it's complicated. But, you know, s.121 should mean something.  And some fresh review of it by better informed higher courts is might indeed be welcome and interesting. In a world where international trade treaties increasingly prevent even national governments from managing their own economies, maybe it is time for a serious review of the constitutional status of interprovincial non-tariff trade barriers -- a question seemingly left in judicial abeyance since the 1920s. Judge Leblanc and Andrew Smith may have done us a service.

A question not much taken up in the judgment was: where did s.121 came from?  It is not among the 72 Resolutions debated and passed at Quebec City in 1864 and accepted by the four founding provinces as the basis of the constitutional settlement. (Hence not taken up by me in Three Weeks in Quebec City!) Section 121 was added very late in the day at the London (or Westminster) conference of 1866-7, quite possibly by a parliamentary draftsman under the thumb of the British Colonial office -- though certainly seen and accepted by the Canadian delegates who in practice had final authority over the text.  Regrettably the London conference is even less well documented that the Quebec one.

Anyway, clearly the meaning of the constitutional settlement of 1864 still needs the attention of scholars. Kudos for Andrew Smith for taking a shot when so many of his peers mostly still dismiss the whole thing as the noodlings of racist sexist patriarchal colonialist dead white guys from the 19th century.

Update, June 10:  In May Maclean's editorial writers took note of this too, without actually claiming the New Brunswick was actually right, only that the issue is significant:
It has become depressingly commonplace for Canadians to either disparage or ignore our country’s historical figures.  .... Such feelings are apparently motivated by an unspoken belief that modern Canada only sprang into existence with the passage of the Canada Health Act, or perhaps the Charter of Rights and Freedoms; anything previous is an embarrassment to our modern selves.
These efforts are expunging historical Canada are not only unfair, but demonstrably untrue, as the New Brunswick beer ruling demonstrates. The views of Canada’s historical figures still have the power to affect us today, despite whatever the status quo may say.
We should never forget our history, or ignore its wisdom. If that means freer trade and cheaper beer, so much the better.
  I know some history professors who should reflect on these views.

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