Business of Supply


Mr. Speaker, it is my pleasure to rise on this important debate today. I will be dividing my time with my friend from Calgary Signal Hill.

I want to take a moment to thank someone who has used his time in Parliament to advocate for an important issue that will actually help all Canadians, and that is the member of Parliament for Central Okanagan—Similkameen—Nicola. Since his time here, he has helped Canadians and businesses, particularly small businesses in the Okanagan, across the country to sell more product within their own country. These are world-class in the case of wines. The “Free my Wine” and “Free my Grapes” initiative are world-class wines selling around the world. However, there are restrictions about selling them one province over. His advocacy over his years in Parliament, expanding the personal use exemption, allowing Canadians this choice that really should have been provided decades ago, shows that a passionate and knowledgeable member of Parliament can accomplish great things, and we are here debating that today. I thank him for it.

I am following some of my friends on the government side, the members for Eglinton—Lawrence and Newmarket—Aurora, both lawyers, both capable people and friends. As I have joked before, my friend from Newmarket—Aurora was a year behind me in law school. I am quite certain he graduated, but I will leave that to him to talk about. I jest. He is very capable. I know they share our intention here, but their minister has them in a straitjacket, talking about incremental change and agreements on internal trade that have moved at a snail’s pace.

In fact, since the war, my friend from Central Okanagan—Similkameen—Nicola has advanced the issue of internal trade more than any government, with the exception of perhaps the 1994 Agreement on Internal trade, which set up the rubric that we need to expand here today.

There has been no recognition of what the origins of Canada wanted to see when this young country started in 1867, which was a free flow of goods and services across the country. We have not seen that. I will remind members of the House, and my friends the lawyers who were speaking before me, of section 121 of the Constitution Act, 1867, which clearly says, “All articles of the growth, produce or manufacture of any of the provinces shall…be admitted free into each of the other provinces”.

Unfortunately, early interpretation of this intention seemed to restrict that just to custom duties, so duties charged by provinces between one another. However, what built up were walls and silos of a legislative and regulatory nature that effectively limited internal trade within the Dominion of Canada, even though the intention of the country forming was to facilitate that trade.

I will remind the House that the early decision of Confederation put Upper Canada, my friends in the Maritimes still refer to Ontario as Upper Canada, put Ontario and Quebec in a more advantageous position by restricting trade with the United States. Therefore, in Nova Scotia and New Brunswick, natural north-south trade linkages were stopped by a tariff wall and in return there was the build-up of a competitive manufacturing centre in central Canada. The early decisions to favour some provinces in the Confederation by limiting the north-south trade of other provinces in the Confederation was a policy decision that should have been offset by more interprovincial trade. We did not see that.

In fact, the maritime provinces, and later Newfoundland and Labrador, which is an Atlantic province, had their growth inhibited by the fact that the national policy of Sir John A., who we on this side love, favoured Ontario and helped build up world-class manufacturing and mercantile trade in those provinces at the sacrifice of the others. However, the intention with section 121 of the Constitution Act, 1867 was that Nova Scotia, New Brunswick, Prince Edward Island could trade westward.

However, what we saw built up was not customs, which were specifically excluded by the courts, but regulatory and other provincial barriers being set up.

What we are doing here today, and what my friend is suggesting by asking for a Supreme Court of Canada reference, which is warranted in this case, is we have to, particularly for smaller businesses in Atlantic Canada and other parts of rural Canada, speed up the process, so that 150 years after Confederation, we can say that we barely made it by the 150 year mark in promoting internal trade within Canada. Due to the leadership of the previous government, we were signing record trade agreements with the European Union, with countries in Asia, with the trans-Pacific partnership countries. Yet, we do not even facilitate free trade of goods and services within our own country.

There are two specific legal reasons why I think this Parliament needs to ask the Supreme Court of Canada for a reference. The first is a 2003 Supreme Court case in R. v. Blais. It clearly said that the original intent of legislation was something a lower court could raise if it believed there had been a misinterpretation of the original framer’s intent. This is the original constructionism of our Constitution. The Supreme Court has said that lower courts are not bound if they feel the original intention and the spirit of that has not been adopted in Canada.

Recently in the province of New Brunswick, the Comeau case, a Superior Court justice took that initiative, which the Supreme Court of Canada said was proper in the Blais case, to suggest that section 121 of the Constitution Act, 1867 was not properly interpreted. In fact, we have had over a century of limited free movement of trade within Canada, not just goods and services. We have seen Ontario and Quebec, for decades, struggle over mobility of construction trades and others, when Canada’s intent was to facilitate that.

The other reason why we should be going to a Supreme Court reference in this case, particularly before we hit our sesquicentennial, is the chain of precedent established in the Bedford and Carter decisions. In Carter, which we have been debating euthanasia, assisted-dying, the Supreme Court of Canada said that stare decisis, or precedent, should not be a straightjacket upon subsequent courts.

Using the Bedford, the prostitution decision, it said that that precedent could be looked at for two reasons: first, if there was fresh evidence; second, if there was a change in circumstances. In fact, in the Carter decision, the court looked at the societal change in attitudes with respect to assisted-dying, between Sopinka decision of 1993 in the Rodriguez case, and Carter. It looked at societal change.

My friend from Okanagan has shown that Canadians want to free their beer. Canadians want to free their grapes. They want the original spirit of section 121 of the great experiment that is our Confederation to be realized.

It is up to the government now. We have a justice in the Queen’s Bench in New Brunswick who took the leadership of the Supreme Court in the Blais decision in 2003 to say the original interpretation had not been followed. Then we have the Gold Seal case of 1921, dealing with intoxicating liquors being sent to Calgary from outside Alberta, in the years of a Temperance Act for Canada. This government is legalizing marijuana. We are way past the Temperance Act days.

The decisions in Bedford and in Carter show that when there is societal change and when there is demand by consumers and producers to fulfill the potential of the Constitution Act, 1867, it is up to this Parliament and it can do so responsibly, allowing the Supreme Court of Canada to use its own precedent to liberalize trade in Canada. I hope we see it before July 1 of next year.



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