With its Comeau ruling, the Supreme Court of Canada failed to uphold vital economic and commercial freedoms promised by Confederation, writes Brian Lee Crowley.

By Brian Lee Crowley, April 21, 2018

When I use a word, the Supreme Court said on Thursday, it means just what I choose it to mean – neither more nor less.

At least that’s how Lewis Carroll might have written the Court’s decision in the Comeau “free the beer” case, had he been a member of that august deliberative body. For in waving away the Comeau challenge to provincial barriers to trade, the justices made clear that when they set themselves up as defenders of Canadians’ rights, they mean the rights that the Supreme Court cares about. Other rights? Not so much.

Wait a minute, I hear the defenders of the court say, this wasn’t about Canadians’ rights, because this wasn’t a Charter case. This was about internal barriers to trade, about obscure sections of the 1867 Constitution, about federalism – in other words big, abstract, technical concepts that the average person cannot get his head around and cannot relate to in his own life.

This objection goes right to the heart of the matter. Do economic and commercial rights matter? And even if they do, do Canadians have any such rights?

When Gerard Comeau brought his case of beer home to New Brunswick from Quebec, were his rights to trade freely with other Canadians wrongly infringed?

Those who think deeply about these matters have long understood that economic and commercial rights matter enormously, and not just for reasons of economic efficiency. They matter because there are few things that touch a human being, her identity and her hopes and aspirations in life more than her ability to choose a profession or trade, to open a business, to sell the fruits of her labour and to buy those of others and to do so freely with other members of the community. Restrictions can perhaps be justified for health or safety or environmental reasons, for example, but the burden of proof should be on those who want to restrict that central human freedom.

Economic and commercial rights matter enormously, and not just for reasons of economic efficiency.

Yet the Supreme Court in Comeau insisted on seeing the challenge being one to the legislative powers of provinces under the constitution, despite the compelling evidence that our traditional reading of the Constitution Act of 1867 has consistently misunderstood, misrepresented or just plain dismissed the intentions of the Fathers of Confederation to protect and nurture these vital economic freedoms. Comeau offered to the court a golden opportunity to strike a blow for those freedoms, making free trade the default condition of Canada.

The court unanimously declined, despite the fact that they have enthusiastically worked with far less to do far more in their interpretation of the Charter – at least when they thought a right they cared about was in play. Look no further, for example, than the finding in the procedural right of Canadians to “security of the person” the justification for a substantive right to physician-assisted suicide.

But mere commercial freedom leaves the court unmoved. They sniff that the constitution doesn’t guarantee “absolute” free trade in Canada, whatever that might be. They said this assault on the rights of Canadians is acceptable as long as the assault is not the intention, but merely a by-product of legislation, such as protecting people from uncontrolled sale of alcohol.

But mere commercial freedom leaves the court unmoved. They sniff that the constitution doesn’t guarantee “absolute” free trade in Canada.

In other cases where a legislative intention has run afoul of rights, the court has said the law must seek to be as minimally damaging to those rights as possible. In fact, they have even struck down laws that failed that test, regardless of the attendant confusion and consternation.

This time, however, the court declined to see in the constitution the rights the founders intended to bequeath to us and simply blessed the status quo. After all, as then Chief Justice Beverley McLachlin opined during the oral arguments on Comeau, the politicians might get upset if the justices didn’t defer to them on these important matters.

Such a pacifistic sentiment sat uneasily on the lips of a court that has not hesitated to frustrate the legislative ambitions of many governments since the constitutional reforms of 1982.

The timing could not have been worse. The court has not merely confirmed but strengthened the status quo at a time when Canadians’ economic freedoms are weak. The federal government’s consistent timidity over many years has left a legislative vacuum at the federal level. Instead of boldly speaking for Canadians’ rights to trade freely and exercise their profession or trade across the country, Ottawa has preferred to leave it to the provinces to negotiate away significant trade barriers.

The feebleness of this approach is made clear by these three facts. First, in the latest inter-provincial agreement to reduce trade barriers, the list of exemptions runs to over 100 pages. Second, we are in the middle of an escalating trade war between B.C. and Alberta, where both provinces are holding hostage each other’s residents’ rights to work, buy and sell freely across the provincial boundary. Third, Statistics Canada has recently estimated that internal barriers to trade are the equivalent of a seven per cent tariff between provinces, a stunning loss of economic efficiency.

The equivalent tariff between the American states (where federalism seems to be working just fine and cross-border bootlegging is minimal)? Zero.

It is these unjustified assaults on Canadians’ vital economic freedoms that Confederation was explicitly intended to end in 1867. Over 150 years later, we’re still waiting, and the Supreme Court has just ensured the wait will be even longer.

Only in Canada you say? Pity.

Brian Lee Crowley is the managing director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa. www.macdonaldlaurier.ca.

MLI would not exist without the support of its donors. Please consider making a small contribution today.