by Chantal Hebert
At a time when federal-provincial tensions are on the rise, two court rulings this week offer a timely reminder that the Constitution does not cast the provinces as junior partners of a unitary federation.
In a unanimous ruling, the Supreme Court found that New Brunswick is within its rights to forbid its citizens to bring home more than a token amount of beer and spirits from another province.
Notwithstanding the section of the Constitution that states that goods should move freely between the provinces, the top court noted that the Canadian federation “is built upon regional diversity within a single nation.”
According to its nine justices, that means provincial governments have the autonomy “to develop their societies within their respective spheres of jurisdiction.”
The consternation that attended that decision was not limited to beer and wine drinkers; had the top court ruled the other way, its judgment would likely have affected a host of provincial regulations in areas ranging from environmental controls and supply management for the poultry and dairy industries to financial regulations.
This week’s ruling forecloses a constitutional shortcut to bypass provincial obstacles on the way to a barrier-free internal economic union. With the Court speaking with one voice, the odds that this ruling could be revisited any time soon are about non-existent.
Could the ruling have implications for a potentially imminent legal showdown between B.C. and Alberta and the federal government over the Trans Mountain pipeline expansion?
It should incite the governments of Alberta and Saskatchewan to exercise caution as they look to their trade arsenal to retaliate against their B.C. counterpart, for the top court takes a dim view of the constitutionality of erecting trade barriers for the purpose of punishing another province.
But, on the core issue at hand in the pipeline debate – the extent of the federal constitutional authority to see the project through versus B.C.ís right to protect its environment – the beer ruling offers limited insights, for the case did not revolve around competing federal and provincial jurisdictions.
New Brunswick was not the only province to score a landmark court victory on Thursday; while legal experts were still parsing the tea leaves of the beer ruling, the Quebec Superior Court became the first to reconcile Quebec’s determination to pursue a referendum mandate for secession on its own terms with post-referendum developments in the Supreme Court.
At issue was Quebec’s Bill 99, a law adopted in 2000 under Lucien Bouchardís PQ government in response to the federal clarity act.
It re-affirms the right of Quebecers to determine their political future under rules set by the National Assembly. Among those, the law prescribes that a pro-sovereignty mandate is to be based on a simple referendum majority of 50 per cent plus one.
In her more than 100-page ruling, Justice Claude Dallaire put the provincial law under the lens of the Supreme Court 1998 reference on Quebec secession and found no grounds for conflict.
She concluded Bill 99 did not claim for the province new powers that are not already guaranteed in the Constitution, nor did it lay a legal path to a unilateral declaration of independence.
As a result, she found that it remains within the purview of the National Assembly to set the terms under which Quebecers would pronounce on their political future. (It does not follow that the province could impose the terms under which the rest of Canada would respond.)
It took 17 years that included many judicial detours to arrive at a resolution of this challenge. The ruling is that of a single judge in a lower court. If it were appealed, no one can presume what a higher court would make of its findings.
There has been a lot of water under the bridge since Bill 99 was initially challenged. Over that period, the nine Supreme Court justices who took part in the secession reference have all retired. In Quebec, support for sovereignty is stagnant. Dallaire’s ruling will not turn the clock back to a time when the debate over the provinceís future was the top-of-mind issue of its political class.
Still, the Quebec law emerged from the first leg of its legal voyage in better shape than many, including supporters of its prescriptions, expected. With the federal government backing the challenge and against the backdrop of the Supreme Court secession reference, more than a few believed the deck was stacked against Bill 99.
As this week’s legal developments illustrated, when it comes to the courts and the federationís constitutional architecture, no one is guaranteed a slam dunk.
Chantal Hebert’s column appears Tuesday, Thursday and Saturday.
Copyright 2018-Torstar Syndication Services