A court matter

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ecisions about pipelines, wine and beer and interprovincial trade have made headlines over the last few months. While it often appears as though personalities and ideology drive the politics around these issues, policy outcomes are most likely going to be decided by the courts and their decision will be based on the interpretation of the rule of law in Canada which is outlined in the Constitution. This week I would give a quick primer on the Constitution and explain the way that our history has shaped the dynamic relationships of federalism and why the court’s decision are controversial.

One of the very first things I often say in my introduction to Canadian politics class is that “Canada is big.” While this statement is simple it is not simplistic in terms of the way that Canada is governed. Canada’s size has shaped its constitutional structure and historical trajectory. At the time of Confederation, Canada adopted two fundamental models of government. The first is the Westminster model which reflected the small “c” conservative tradition of Britain by creating a bicameral house with an unelected upper chamber (the Senate) and a representative lower chamber (the House of Commons). The Queen is the head of state represented in Canada by the governor general. The second model is federalism. Britain has a unitary system which essentially means that the central government can give or take away powers from local governments. In federalism the division of powers is divided in the Constitution and thus no order of government can take power from another. The Constitution enumerates (lists) the powers of the federal and the provincial governments. Even at 1867, when Canada was only constituted by Ontario, Quebec, New Brunswick and Nova Scotia, Canada was still a large and diverse country. Federalism allowed for the diverse political cultures, religions and economic models that already existed be recognized in the new union. Thus, the Constitution Act, 1867 (then called the BNA) laid out that Canada would have a system of government like that of Britain (Westminster) but in the framework of a federal system.

Such a model led to what we call a ‘hybrid constitution.’ Britain’s constitution is not a written document. It is derived from the traditions and practices that are “expressed in statutes and in judicial decisions.” Our constitution also has elements of an unwrit- ten constitution because we too use tradition and practices in the same way, that is, those practices expressed by statute and decisions made by the court are the rule of law.

So our Constitution is both written and unwritten.

Over our history, courts have been asked to make rulings on the division of power. Often the central question to be answered is: “Is Canada a country made up of a number of parts or is it greater than the sum of its parts? Provinces have fought hard to ensure that provincial jurisdiction is upheld in areas that are clearly enumerated (like control of health care and education) but also to ensure that the significant differences in political culture among the provinces are recognized.

Just days ago, the Supreme Court noted this critical aspect of federalism in its ruling on interprovincial trade when they said that New Brunswick could restrict alcohol coming from another provinces in order “to enable public supervision of the production, movement, sale and use of alcohol within” its borders despite the fact that Section 121 of the Constitution does explicitly say that “all article of the growth, produce or manufacture of any one of the Province shall, from and after the Union, be admitted free into each of the other Provinces.”

The Court argued that “full economic integration within Canada would significantly undermine the shape of Canadian federalism, which is built upon regional diversity with a single nation. Federalism means there much be space to each province to regulate the economy in a manner that reflects local concerns” (citation from the National Post, Brian Platt April 19th). In this particular case, the court’s unanimous decision drew on a type of precedent in our law that takes into account “legislative objectives.” In other words, if a provincial legislature has reasonable purposes for imposing restrictions then those goals should be considered before any strict reading of Section 121.

The news will be full of commentary about whether the court was right or wrong but I hope that now you have some context in which to situate the decision. How pipelines fit into this story is more complicated and will be the subject of a future column.