Pursuant to notice of February 27, 2020, moved:

That, in order to promote national unity, to improve collaboration with provincial and territorial initiatives, and to support the competitive needs of domestic business, the Senate now:

(a)call on the government to:

(i)address the issue of inter-provincial trade and assert in law, for judicial clarity, that Section 121 of the Constitution Act, 1867 is the law of the land;

(ii)clarify key principles of inter-provincial trade, such as accelerating mutual recognition, formal harmonization and introduction of federal standards when applicable;

(iii)develop institutional architecture to facilitate inter-provincial trade which would include creating an internal trade commissioner or expanding the Canada Free Trade Agreement Secretariat powers; and

(iv)create a binding investor-state dispute-resolution process where complaints, negotiations, decisions and appeals might occur;

(b)urge the government to move toward enacting a revised Canada Free Trade Agreement as law, cutting back on specific exemptions within the CFTA; and

(c)recommend that the government clarify longer-term integration objectives, such as how to more consistently relate them to urban projects and innovation super-clusters.

She said: Honourable senators, I rise today to speak to my motion on interprovincial trade, which Senator Percy Mockler graciously offered to second. He and I and our offices have collaborated on the development of this motion and in supporting bringing this to you and we are grateful for your attention and hopeful for your support.

Before getting into the details of my motion, I’d ask each of you to think about the building we’re in. We have heard a fair bit about trains tonight, and I want to observe the fact that this was Ottawa’s Union Station. I ask that you use your imagination with me. This very room was the concourse. Try to imagine what kind of scenes would have taken place, right here where we sit now, when this station was first opened over a century ago. You would have seen Canadians from every corner of this vast country spilling out into the capital of a young, optimistic and ambitious federation.

At the time, Canada was the fastest-growing economy in the world. Rubbing shoulders as they bustled, there would have been men and women, young and old, rich and poor; perhaps a miner from Dawson City, a businessman from downtown Toronto, a farmer from Winnipeg or a new immigrant who had just landed in Halifax and was crossing Canada in search of a new home, work or maybe just adventure.

This place was the heart of Ottawa and through it passed the life of this country, pumping people and the fruits of their labour far and wide, all right here. How can we do justice to the ghosts of this place when we come to work here? How can we remember what rail and the promise of modernity meant to this country at that time?

For one, I see it as fitting that the Senate lives here. We too come from every place in this country and, moreover, no two ideas were as instrumental in securing Confederation as the Senate and the railroads. We too are here to unite the regions, hence our symbolic Bill S-1 on railways, which reminds us of the importance of maintaining ties, communication and equal development across this country.

So I ask, and indeed I ask it now, in a time of great regional tensions and division, how can we live up to this history which has come before us here? How can we more tightly tie this country together and, with that unity, elevate the prosperity of this country which has given so much to so many?

I want to quote a couple of parts from a speech from many years ago. Let me read this for you:

. . . I go heartily for the union, because it will throw down the barriers of trade . . . to make a citizen of one, citizen of the whole; the proposal is, that our farmers and manufacturers and mechanics shall carry their wares unquestioned into every village of the Maritime Provinces; and that they shall with equal freedom bring their fish, and their coal, and their West India produce to our three millions of inhabitants. The proposal is, that the law courts, and the schools, and the professional and industrial walks of life, throughout all the provinces, shall be thrown equally open to all.

Now, if I may give the citation, that was George Brown delivering a speech on confederation in 1865. From this dream came section 121 of the Constitution Act, and it reads:

All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

That’s not exactly what the current situation is. Sadly, I must say that we have yet to fulfill this dream.

I come to the issue all senators will be aware of: the shocking barriers to trade between Canada’s provinces and territories which persist to this day. This issue isn’t new to the Senate.

As the Senate Committee on Transport and Communications noted in their 2016 report, with the very apt title, Tear Down These Walls:

Almost 150 years after our country was formed, far too many unnecessary regulatory and legislative differences exist among Canada’s jurisdictions. These differences create “walls” that prevent the free flow of people, goods, services and investments between provinces/territories. They also increase costs for Canadian businesses, many of which are struggling to expand and compete in a fiercely competitive global marketplace.

Their findings are noteworthy. First, they say that interprovincial trade represents about one fifth of the Canadian economy. Breaking interprovincial trade barriers could add between $50 and $130 billion to Canada’s economy. Think of that in a time when we’re seeing insecurity about markets abroad that we continue to try to have access to, but think of that at a time when we see all sorts of world events having an impact on the economy of Canada. What could we in our own country achieve through bringing down these barriers?

I like this one because it’s a specific interest of mine. Three quarters of Canadians agree with bringing any amount of beer or wine across provincial or territorial borders, while 87% support the right to order any legal product from anywhere in the country.

There are many barriers, not just under the intoxicating beverages act or some historical name to that effect. These barriers are extremely diverse. They include area of trade and professional certifications, transport regulations and construction regulations. I had a round of trying to negotiate bringing down those barriers between Quebec and Ontario, ably assisted by Senator Dean at the time. We thought we were a little bit successful. The government changed in Quebec and things regressed and the next minister, the Honourable Norm Sterling, continued that battle and other ministers have since then. It is not just construction regulations but food regulations, alcohol monopolies, dairy protection, workers’ compensation, health and safety requirements, first aid kits, procurement contracts, tax incentives and the list goes on and on.

Each of these discrepancies disables Canadians from building livelihoods and businesses that might span across this country. Often that leaves large foreign corporations now granted equal access under free trade agreements such as the CPP, TPP and CUSMA better placed to compete than our own companies, our own businesses, our own mom-and-pop shops.

In a time when national unity is needed, when fractures are growing and international order is volatile, Canada must indeed tear down these walls. Of course, this isn’t to say that efforts have not already been made. Just to mention a few: In 1985 the Royal Commission on the Economic Union and Development Prospects for Canada recommended harmonization of standards and regulations. In 1994 the federal and provincial governments signed the Agreement on Internal Trade. I was at that negotiating table. I signed that agreement on behalf of the Province of Ontario. This weekend I went down to the basement and found the box and brought it out. It’s a red book about this thick. Most of that has got exemptions in it, many of those pages. While we made progress, we did not make sufficient progress. In order to get a deal, we accommodated a lot of regional-based exemptions and concerns from those provinces about their local economies, but we tried to make progress.

There have been other initiatives since then, of course, at the very least to mention the Canadian Free Trade Agreement of July 2017, which replaced the AIT. There have been rules set out in these agreements. There have been some exemptions set out. We shifted the burden in the Canadian Free Trade Agreement to all things being covered unless specifically exempted. We tried to ratchet down that kind of activity and there have been a number of bilateral deals between provinces that have been struck, but that does not fix the problem of a pan-Canadian interprovincial trade regime that is effective, enforceable and seeks to bring the value of that potentially $150 billion to our own economy.

There have been many reports, such as The Council of Atlantic Premiers and the New West Partnership in 2010; the MacDonald-Laurier Institute in 2010; Bill C-311 tabled in 2012; the Supreme Court ruling of R. v. Comeau, which was about transporting beer across the border; a Canadian Chamber of Commerce report entitled Death by 130,000 Cuts in 2018; and repeated efforts by The Council of the Federation. I’m hopeful that with the federal-provincial talks, the council this week might take further steps in this regard. And there have been lots of articles and advocacy.

This particular government has made some progress, as I said, with the Canadian Free Trade Agreement in 2017. It does a number of things. It covers all sectors, as opposed to the 11 that were in the AIT. It establishes working groups, such as the Regulatory Reconciliation and Cooperation Table. There’s a 23‑item action plan with some action on a small handful of these things. But these small bites will not be enough. The size of the barriers today are simply far too great and the process to resolve concerns or issues is toothless. There are big issues that remain and most especially the hefty cost of dispute mechanisms and the undue burden on Canada’s entrepreneurs. In short, this snail’s pace won’t cut it. We need deeper reform.

Last year, I attended a Montreal Economic Institute conference on this issue and it was called One Country One Market. To my great pleasure, because I looked around and thought I was the only person from the Senate there, shortly thereafter Senator Percy Mockler was seated beside me. It didn’t take long for the two of us to look at each and ask, “What can we do about this? How can we help and try to contribute?” Thus our discussion about bringing a motion forward.

There were many interesting points and suggestions made at the conference, including a look at the United States and the now-defunct Interstate Commerce Commission, as well as Australia’s Mutual Recognition Act. I think there’s value in looking at that, and there are other international examples.

One idea that stood out among others for the two of us was that of simply reasserting in law that section 121, found in the highest law of this country — our own Constitution — is the law of the land. But I want to stress, with respect to that, that the courts and the provinces have strayed away from that principle and that course is in need of correction.

Despite the beauty of that simple solution, later conversations our offices had with experts suggest that many doubt this will suffice. The simple fact is that these barriers are very messy and the solution will be messy too.

What did the Senate report recommend? They said the CFTA should have included mutual recognition, a formal harmonization mechanism, binding investor-state dispute resolution and the federal government becoming a permanent co-chair of the committee on internal trade. They suggested boosted funding so Statistics Canada and the Internal Trade Secretariat could be more effective. They suggested consolidating securities regulations. I think of the conversations I’ve had with Senator Wetston. At least 30 years ago when I was in the Ontario Legislature, we were talking about that, and we still have not achieved it.

The committee was right and the recommendations were right. One thing is clear: There must be a place where provinces can discuss the options, propose solutions and if unhappy with the outcome appeal the decision. This goes beyond the responsibilities of one Minister of Intergovernmental Affairs of whatever partisan stripe and what they could possibly accomplish.

Such a place might also include a leading position for the federal government to propose harmonized options when applicable. It just so happens that such a body exists, as the report noted, that being the CFTA’s reconciliation table, a key piece of the trade secretariat. However, at present, this body has no binding powers. We considered bringing forward a bill to that effect, but as we delved into it, we realized that it would be a money bill, and that can only originate in the House of Commons. Thus, we have our motion to call on the government and the House of Commons to take action on this.

This is not only to reassert section 121, but we need to shift the CFTA’s reconciliation table into a binding process. In the last Parliament, I sponsored Bill C-101 that dealt with the Canadian International Trade Tribunal. Let me ask you this: Why do we have a binding dispute-resolution process for foreign firms coming to Canada but not for our own, working across Canada? There is one catch, as I said: This is a money bill, so we look to the House of Commons, the government and the executive branch to take leadership on this.

Many studies have been done. All the meetings in the world can be had or reports published, but we move this motion because it’s time that the path forward be made clear. All governments — I include provincial and territorial governments — need only have the courage to take the steps to act and to lead. Contested matters like this cannot be left to the courts. People’s wishes are clear; Parliament must act.

I’m relieved to see the government does take this seriously, and the appointment of Minister Freeland, a woman of undeniable skill and competence, is a clear signal.

To wrap up, I humbly ask that honourable senators consider supporting this motion that Senator Mockler and I have put before you.