Still no such thing as free trade within Canada.

Woohoo. We’ v e finally got a new internal trade deal in Canada. Yes, the woefully inadequate Agreement on Internal Trade, in place for over two decades, has at last been replaced. The good news: the new Canada Free Trade Agreement isn’t as useless as the old AIT. The bad news: that’s about the best that can said be of the CFTA.

So, don’ t woohoo t oo much. Because the things that Canadians care about — drinking good beer, making wise financial investments, and dozens upon dozens of other actions relying on freeflowing goods and services — are still just as subject to protectionist internal trade barriers as they were before.

The majority of the CFTA is actually taken up with setting out explicit exemptions from free trade guarantees. To give but a small taste of what this means: supply management systems — along with passenger transportation services, real estate services, car sales and repairs, wine sales, meat sales, dairy sales, travel agent services, credit reporting and, of course, the ever-popular harvesting of wild rice on Crown lands — remain open to provincial tariffs and restrictions.

What I fear is no one will read that agreement. That would probably be a blessing. It’s not exactly a page-turner.

But what I mean is, I fear people will take the federal and provincial governments’ description of the agreement at face value. Ontario Economic Development Minister Brad Duguid, who chaired the CFTA negotiations, says the deal “reduces the costs of doing business in Canada and makes us economically strong and creates jobs across this country from coast to coast to coast.” This sounds fabulous, but it’s very hard to imagine how such a thing is possible when, as MacDonald-Laurier Institute Managing Director Brian Lee Crowley has pointed out, the agreement doesn’t seem to eliminate any specific trade barriers, except in the area of government procurement.

Provincial politicians feel this is enough to warrant vigorous handshakes and gleeful press releases. It’s not. It warrants red faces and em- barrassment. The provinces were — once again — incapable of committing to any semblance of true internal free trade.

National Post columnist Andrew Coyne sums it up best: “for all of the participants’ labours, we are left, 150 years after Confederation, with an economy in which internal trade remains markedly less free than it is within other federations — or indeed between the separate countries of the European Union.”

I don’t doubt this is depressing news for Canadians who would like to be able to work and do business in the provinces of their choice, and buy whatever Canadian goods tickle their fancy; yet there is one thing the parties to the CFTA seem to have forgotten. They’re not the ones who get to decide this issue.

Canadians have a federal constitutional right to free internal trade, guaranteed by Sec. 121 of the Constitution Act, 1867. Provincial politicians don’t have the authority to decide whether they are violating Sec. 121; the Supreme Court of Canada does — and if anything reinforces why this division of powers is healthy, it’s the new CFTA.

Seriously. What happens to internal trade barriers is a matter above the provincial politicians’ pay- grade. Will the Supreme Court start vigorously enforcing Sec. 121 when it hasn’t in the past? Looking at the strength of the Comeau case that’s come out of New Brunswick — in which a provincial trade barrier on alcohol was deemed by a lower court to violate Sec. 121, and therefore the Constitution — I have to consider this a real possibility. New Brunswick has asked the Supreme Court to hear the case. I suspect it will. I can’t see how the high court could leave a momentous and significant question of law unsettled for the country.

I suppose it should go without saying that it would be nice if the federal government would step in on its own and actually insist on free internal trade. As a matter of principle and good policy, even without an affirmation from the Supreme Court that it must. But there isn’t any evidence that it will. Furthermore, I do believe that this is a role for which the courts are better suited: holding government to account when it infringes on individual Canadians’ rights. I would not hold my breath for a majority of voters to hold politicians to account in the same way, given how much unfair protectionism benefits sizable influential groups. Now what? Boo the CFTA? I’d say, don’t even bother. The free trade to which we’re entitled will soon be tested in a proceeding of far more consequence.

FREE TRADE TO WHICH WE’RE ENTITLED WILL SOON BE TESTED.