The Past Speaks

On 19 April, the Supreme Court of Canada will announce its decision in the constitutional case of the Queen v. Comeau, which deals with the legitimacy of interprovincial trade barriers in Canada. As long time readers of this blog will know, I was the expert witness who testified at the 2015 lower court case that was the basis of the appeal now being considered by the Supreme Court.

Here is a backgrounder for people outside of Canada.

Canada’s subnational governments, the provinces, impose many restrictions on interprovincial trade that are protectionist in intent and effect. (Canada isn’t the only country to have such internal trade barrier—see here for a gateway into the academic literature on this subject).  Canada’s internal trade barriers appear to conflict with section 121 of the 1867 Canadian constitution, which explicitly provides for free trade between Canadian provinces. This constitution is the British North America Act, 1867 (UK), which was retroactively renamed the Constitution Act, 1867 by the Constitution Act, 1982 . [Most academic historians continue to refer to the text by its historical name]. Since I wrote a PhD thesis and book on the political economy of the 1867 constitution, I am considered to be well qualified to speak about the motivations of the creators of section 121. You can read the expert witness report I wrote for the Comeau case here.

I believe that section 121 was included in the Canadian constitution because the framers of this document wanted the new Dominion of Canada to be a single market without fetters on interprovincial trade. These framers included the Fathers of Confederation- a group of British North American politicians- as well some senior British politicians (especially the Earl of Carnarvon but also Adderley, Watkin, and others), and a handful of very accomplished civil servants and lawyers in London.

150 years later, trade barriers are still in place. For those who don’t wish to read my entire expert witness report, this 2015 CBC article gives a summary of the views I presented in “The Historical Origins of Section 121 of the British North America Act: a Study of Confederation’s Political, Social, and Economic Context”