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Bugs





Joined: 16 Dec 2009
Posts: 5005
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PostPosted: Sun Apr 22, 2018 1:28 pm    Post subject: Coyne on the Supreme Court's decision on domestic trade Reply with quote

Quote:
Andrew Coyne: Supreme Court beer ruling ties the constitution in knots, and the economy with it
Canada will not merely be stuck with hundreds of existing provincial barriers to trade indefinitely: the provinces have been given the green light to put up more
Andrew Coyne
April 20, 2018
8:00 PM EDT

What is the worst part of the Supreme Court’s decision in R v Comeau? Is it the shoddy reasoning, the tendentious reading of simple declarative statements, the selective approach to history, the willful naivete?

Perhaps it’s the grating hypocrisy: the lectures on the sanctity of precedent, from a court famous for discarding precedent when it suits it; the obvious efforts to fit constitutional interpretation to a desired policy outcome, even as it piously decries the practice; the disavowal of all “preconceived theories” of federalism except its own.

Or is it the feckless evasion of responsibility, the hot-and-cold deference, the myopic refusal to look at more precise remedies to the problem it identifies, in favour of the jurisdictional equivalent of chemotherapy?

Regardless, this latest in a string of erratic decisions by the highest court in the land will do the country serious harm. Canada will not merely be stuck with hundreds of existing provincial barriers to trade indefinitely, in defiance of the central objective of our founders: the provinces have been given the green light to put up more.

To the decision, and two pertinent, contradictory texts. On the one hand, Section 121 of the Constitution Act 1867 states: “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.”

On the other, Section 134 (b) of the New Brunswick Liquor Control Act, which makes it an offence to “have or keep liquor” unless purchased from the New Brunswick Liquor Corporation, effectively prohibiting imports from other provinces — such as the beer purchased in Quebec and driven across the border by the eponymous Comeau.

S. 121 is clear enough, on its face: “All Articles … admitted free” would seem to suggest all articles should be admitted freely. The court professes to find it deeply mysterious, even presented with evidence the Fathers of Confederation adopted this expansive language only after debating narrower wording.

To be sure, the court has decades of jurisprudence to work with, notably the 1921 Gold Seal decision that found the provision only applied to tariffs — a precedent the court briskly sets to one side, after finding fault with the trial judge for doing the same. Instead, it rules Section 121 applies both to tariffs and to “tariff-like” measures — anything that adds to the cost of transporting goods across provincial lines, including outright prohibitions.

At the same time, the court cannot bring itself to believe the section prohibits all barriers to internal trade, not least because the provinces, pouring through the gap left by Gold Seal, have erected so many. “If to be ‘admitted free’ is understood as a constitutional guarantee of free trade,” it gulps, “the potential reach of s. 121 is vast.”

The same potential for upheaval, it is worth noting, did not prevent it from discovering, in past decisions, a constitutional right to secede, or a constitutional right to strike, both more or less out of whole cloth; neither did it trouble it unduly in the Singh or Jordan decisions, or when it was rewriting much of the country’s laws on divisive social questions.

But never mind. The court is surely right to say the provision could not have been meant to apply to any and all provincial laws that have any impact on trade, no matter how trivial the infringement or how vital the legislation’s purpose. But a common-sense reading of the text would also suggest the bias was intended to be in favour of openness.

So when the court distinguishes between laws whose “essence and purpose” is to restrict trade between the provinces, and those where that is only the “incidental effect,” it is not far off. It is everything that comes after that’s the trouble.

Rather than put the onus on the provinces to justify a law that restricts trade, the court would oblige complainants to show that restricting trade is not just its purpose, but its “primary purpose.” All the provinces would have to show is that the law is “rationally connected” to some other purpose — any purpose will do.

This latest in a string of erratic decisions by the highest court in the land will do the country serious harm. [....]
http://nationalpost.com/opinio.....my-with-it


I'm no lawyer, but it seems to be odd when a section of the original constitutional document that unified the provinces is put aside for a section of the New Brunswick Liquor Control Act. It seems like a stretch, when you consider that a customs union is supposed to be one of the fundamental characteristics of a modern nation state.
Bugs





Joined: 16 Dec 2009
Posts: 5005
Reputation: 262.7
votes: 8

PostPosted: Mon Apr 23, 2018 10:45 am    Post subject: Reply with quote

Quote:
Kinder Morgan pipeline battle ‘a complete violation’ of Canadian economic union: Jason Kenney
By Amanda Connolly National Online Journalist Global News

The Kinder Morgan pipeline battle is tearing at the seams of the vision of Canada pursued by the Fathers of Confederation, says Jason Kenney, the leader of Alberta’s United Conservative Party.

For months, the future of the proposed pipeline expansion has only grown hazier as tensions and tempers grow more fraught over attempts by British Columbia to delay construction of the project and counter-efforts by Alberta to make opposition to it hurt.

Alberta Premier Rachel Notley said earlier this month a constitutional crisis over the deadlock was not “too far off” and in an interview with Global’s Eric Sorenson on The West Block, Kenney went one step further.

“Yes, I do think this is becoming a constitutional crisis,” he said.

“You have a provincial government that is illegally asserting a power to violate federal jurisdiction to attack the country’s economic interest, basically to say that it can, at whim, decide which products are exported from one of Canada’s two major coasts. This is ridiculous. This is a complete violation of the concept of Canada from Confederation as an economic union, and if this is allowed to stand, what does it say about this country?” [....]
https://globalnews.ca/news/4157850/kinder-morgan-pipeline-jason-kenney-confederation/


It's amazing to me how we seem to be reliving the last years of the original Trudeau administration, as regional conflicts rise in intensity, with energy issues once again coming to the fore.
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Coyne on the Supreme Court's decision on domestic trade

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