Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE I Internal barriers bad for business cial border for personal use. Lawmakers passing a private mem- ber's bill is itself a shocking development, n June, Parliament passed a pri- vate member's bill scrapping a Prohibition-era law that made it a criminal offence to take a bottle of wine across a provin- but a bill that eliminates (sort of) pro- vincial trade restrictions is nothing short of a miracle. It amends the Importation of Intoxicating Liquors Act, which gov- erns the interprovincial transportation, international importation, and release of liquor. The 1928 law is a throwback to Canada' Capone. The feds passed it at the insis- tence of the provinces, which had revoked their own prohibition laws. Rather than scrap the law, or extend s temperance movement and Al the amendment to include spirits and beer, which are illegal to take across pro- vincial borders, Parliament simply hived wine from the equation. All kinds of wine, the government gushes, including that proverbial Canadian favourite — dandelion wine. Here's the kicker: the law gives provinces the authority to set limits on the amount of wine you can import for personal consumption and requires provinces to change their laws before individuals can move wine inter-provin- cially or place orders by telephone or over the Internet. B.C. has done so, but unless provinces reciprocate, what's the point? Yet, lawmakers took their bows. "This is a positive step towards reducing inter- provincial trade barriers, and promot- ing jobs and growth in the wine indus- try, in a statement. "Eliminating the federal restrictions that limit Canadians from transporting wine across provincial bor- ders will encourage Canadians to visit our wine regions and support the devel- opment of our world-class wine indus- try. brewers and spirit makers? The wine episode is a microcosm of " Noble, but what about domestic craft " Revenue Minister Gail Shea said the bigger problem plaguing our country — provincial trade restrictions, which the Canadian Chamber of Commerce cites as one of the top 10 barriers to improv- ing competitiveness. Canada was built on trading. We have one of the most suc- cessful free-trade agreements in the world with the United States and Mexico. About $26.2-billion of Canadian goods each month were shipped to the U.S. in 2011. According to the Ministry of Foreign Affairs and International Trade Canada, since 2006, the federal government has pursued an "ambitious free-trade agenda," signing agreements with nine countries and is negotiating with 50 others, includ- ing the European Union, which would be the largest since NAFTA. Yet, Canadians can get jailed for moving a bottle of booze across the artificial construct of a border that has no guards. Silly isn't it? It' Commerce notes in its report "Top 10 Barriers to Competitiveness" that Canada' "patchwork system of internal trade regu- lations blocks the free flow of workers, goods and services across the country, hindering growth, innovation and our ability to compete in the global market." Imagine B.C. not being able to export s not just booze. The Chamber of s trees, Alberta oil, Saskatchewan potash, Manitoba wheat, Ontario manufactured goods, Quebec Hydro or poutine, and Atlantic Canada sea creatures and people? Yet, that' of goods and services in this country, hindered by regulations, policies, and red tape designed to protect local jobs and the tax base at the expense of competition. Sure, we are rolling out a domestic s essentially the case for a number Macdonald-Laurier Institute, lawyer Ian Blue suggests that our forefathers under- stood the benefits of trade and foresaw the evils of restrictions. That' added s. 121 to our Constitution, which states: "all articles of the growth, pro- duce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces." Blue says that passage makes it clear s why they the government intended the free move- ment of goods across provincial bound- aries. However, the section was blunted by a 1921 Supreme Court of Canada rul- ing that artificially limited it to customs duties, which weren't a problem at the time of Confederation. The Gold Seal v. Alberta (Attorney-General) ruling, ironi- cally, dealt with temperance issues and moving liquor across provincial borders. It paved the way for the creation of mar- keting boards and liquor monopolies. Blue' paper savages Gold Seal using a variety of constitutional principles and arguments, past and current. He also raises seri- ous questions about its appropriateness, including an apparent ethical breach by some judges who tipped politicians about the court' s thoughtful and well-researched trade deal — the Agreement on Internal Trade, which was passed 17 years ago. We negotiated NAFTA quicker. The AIT's implementation moves at the speed of frozen maple syrup. Progress is being made, but it is laborious and highlights how Canada is really a group of fiefdoms disguised as a country. In a fascinating paper for the 50 OCTO BER 2012 www.CANADIAN Lawyermag.com domestically is not to waste time and resources on the AIT. The better way is for someone, the feds or a corporation, to challenge the Gold Seal precedent. The case has only been cited in a handful of rulings since 1921 and seems open to fresh arguments about its scope. Maybe the Harper government Maybe the best way to attain free trade s position pending its ruling. should include that in its "ambitious free trade agenda." Then maybe we will see some real progress. Jim Middlemiss blogs about the legal pro- fession at WebNewsManagement.com. You can follow him on Twitter @JimMiddlemiss and he can be reached at jmiddlemiss@webnewsmanagement.com.

• Cover