Trade

LawNews

Free trade is a pet topic of protesters across North America, and with good cause. Those in favor of it point to the reduction of trade barriers as improving economies that allow for greater access to inexpensive goods. Those against it point out that it destroys local businesses and industries as well as mom and pop shops loved by communities who abandon them in favor of cheaper goods and services. Though Canada seems very much in favor of free trade, many of our industries such as dairy rely on protectionist policies imposed by the government to keep them alive.

The notion of free trade has been in the news lately not just because of the Orange Misogynist’s blathering about the North American Free Trade Agreement (NAFTA) between the US, Canada, and Mexico, but also with regards to a recent Supreme Court decision on interprovincial trade. Before I go into the decision itself, we must discuss how the case got to the Supreme Court.

Gerard Comeau is a resident of New Brunswick who lives not far from the border to Quebec. In October 2012, he drove across the border into our fair province and stocked up on liquor from three different stores. Booze, as it turns out, is pricier in New Brunswick and Comeau decided he would save some money by buying elsewhere.

There was, however, a problem.

New Brunswick’s Liquor Control Act has a limit on how much alcohol you can buy out of province. Their law makes it an offense to “have or keep liquor” above a certain amount that was purchased from a Canadian source other than the New Brunswick Liquor Corporation, the New Brunswick equivalent of the Société des Alcools du Québec (SAQ).

The RCMP in the New Brunswick town on the border were concerned about the number of residents often going to liquor stores in Quebec in breach of the law. With the help of their counterparts in Quebec, they started keeping track of New Brunswickans doing so.

One of these people was Gerard Comeau.

On his way back from an October 2012 trip to buy booze in Quebec, he was stopped by the RCMP. The cops found large quantities of beer and spirits in excess of what the law allowed. Comeau was charged under the New Brunswick Liquor Control Act and was issued a fine of two hundred and forty dollars plus administrative fees. Comeau in turn decided to fight it, arguing that the provision of the Liquor Code was unconstitutional.

The Constitution Act of 1867 was written with a lot of considerations in mind. Before confederation, Canada was just a bunch of separate British colonies. As separate colonies they all had powers to impose tariffs on goods brought into one colony from another.

The country was being formed as the United States was going through the Civil War and there were concerns about the economic effects of the war on the new Dominion of Canada. One of the ways the fathers of confederation sought to solve this is by adding section 121 to the constitution. It is on the basis of this provision that Gerard Comeau decided to fight his fine.

Section 121 of the Constitution Act of 1867 says:

“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.”

Comeau and his legal team argued that the penal provision of the Liquor Control Act under which he was charged violates this provision of the constitution. To back up this argument, a historian was brought in to discuss why section 121 was included in the Constitution Act of 1867, formerly known as the British North America Act.

With the help of this historian who acted as expert for the defense, Comeau argued that section 121 was basically a free trade provision and therefore “no barriers can be erected to impede the passage of goods across provincial boundaries”. The trial judge agreed and acquitted him. The Crown appealed but the appeal was dismissed, so the Attorney General of New Brunswick as well as the Attorney Generals across Canada appealed to the Supreme Court.

The question the Supreme Court was charged with was whether section 121 of Constitution Act of 1867 bars any impediment to interprovincial commerce.

The Supreme Court said no.

In their decision they point out that to take the aforementioned interpretation of section 121 of the Constitution Act of 1867 is to ignore the years of legal precedents created by the courts as they were charged with interpreting the law. Doing so would not only undermine the Canadian legal system but effectively strip federal and provincial powers of their ability to legislate trade in Canada.

Aside from Quebec which relies in part on the Civil Code, most provinces in Canada rely on past legal decisions in order to interpret current ones. The higher the court, the more binding the decision on lower courts, a concept called stare decisis or “stand by things decided”.

The court went on to point out that past legal decisions on the subject point to section 121 only forbidding laws that explicitly impose tariffs on goods moving between provinces but that it should not be interpreted as to ban legislative powers from imposing laws that have the incidental effect of limiting interprovincial commerce.

Critics of the decision were hoping the Supreme Court would take a tougher stance in favor of protecting Canadian beer from the effects of free trade. Others think that this provision will make section 121 of the Constitution increasingly obsolete.

That said, Comeau is obviously going to have to pay his fine, but I imagine it pales in comparison to his legal fees.

* Featured image by Allison Caterall via Flickr Creative Commons

LawNews

The Trans-Pacific Partnership (TPP) has made a lot of headlines in the past year. Canadian participation in it was negotiated by the Harper government just a month before its colossal defeat by the Liberals. It was signed on Canada’s behalf by our International Trade Minister Chrystia Freeland on February 3rd of this year.

People in favour of the TPP say that it will result in job creation, innovation, and give Canadian companies access to international markets. People against the TPP are worried that Canadian industries like maple syrup, dairy products and poultry will suffer when the market is flooded with inexpensive competitors from participating countries.

People are worried about job loss especially in Canada’s auto industry and that enforcement of the intellectual property rules within the agreement will come at the expense of Canadian innovation. Others consider Canada’s participation to be the lesser of two evils and that it’s better to be a part of something than be left out.

This article is not going to cover all of the TPP because the text of the agreement is six thousand pages long. It IS going to give you an overview of three of the main components of the agreement and a quick tutorial on how treaties work.

When a government representative signs a treaty on Canada’s behalf they are not legally obligating Canada because they don’t have the power to do so. Canada is a democracy and all laws and treaties have to be approved by our parliament made up of the House of Commons and Senate.

When Chrystia Freeland signed the TPP on Canada’s behalf, what she was actually agreeing to was that her government would put the TPP before our Parliament to debate, discuss, and vote on its ratification within the two year deadline of the agreement. It is only when a country ratifies a treaty that it becomes legally bound by it. If our Parliament decides that the TPP is rubbish and votes against ratification, Canada won’t be bound by it. If it votes in favour and ratifies the agreement, we will be.

Now Let’s Talk About Labour

People in favour of the TPP say that it will result in improved working conditions by making countries enact and enforce labour laws that are fair to workers and there is some truth in that. Under the labour provisions of the TPP, parties are required to enact laws that guarantee the right to collective bargaining, the elimination of forced and child labour, minimum wages, reasonable working hours, safety, and the end to discrimination with regards to employment. The rules also state that countries aren’t allowed to weaken or reduce legal protections for workers in order to encourage trade or investment. These all seem like great ideas but there are problems with the language used.

Though parties to the TPP have to adopt laws against discrimination, the agreement doesn’t specify what kinds of discrimination are prohibited, and the vagueness of the language leaves participating countries too free to deny women, LGBTI people and visible and religious minorities basic labour rights.

There is a dangerously reluctant tone to these provisions. Parties have to enact and enforce fair labour laws but only to ensure a level economic playing field. The subtext seems to be: “we don’t give a shit about our workers and if we could make our stuff cheaper by paying them less we would, but since we can’t, you can’t either or it wouldn’t be fair.”

Now Let’s Discuss Competition

The TPP competition policy is designed to create a level economic playing field. It requires that parties adopt competition laws that punish anti-competitive business practices including the unauthorized use of consumers’ personal information. They also establish procedural rules for contesting a charge of violating those laws, the burden of proof being on the state claiming the violation.

On the surface the rules seem fair, but when you think about how much Canadian industries like dairy benefit from government protection, the dangers of such an agreement becomes clearer. However, the policy does provide for exceptions if a country’s chosen exemptions from competition laws are transparent and based on public interest.

Last But Not Least We Must Address the TPP’s Intellectual Property Rules

Critics of the TPP claim that it is written to favour countries like the US who have a lot of patents and copyrights and aggressively demand their enforcement. And the critics are right.

Though the TPP reinforces the clause of the Trade-Related Aspects of Intellectual Property Agreement (TRIPS) permitting countries to violate drug patents in states of emergency, the bulk of the provisions of the TPP are geared at protecting patent and copyright holders. They call for countries to establish civil and criminal penalties for copyright infringement that will even include prison terms.

Though in Canada the authorities generally don’t go after people who illegally download music and movies for personal use, the TPP could change all that. The provisions allow copyright holders to sue violators for monetary damages including legal fees. Our legal system is already overtaxed and participation could create an even greater backlog of cases to the detriment of Canadians seeking justice.

The Trans-Pacific Partnership is a damned if we do, damned if we don’t debate. Most experts agree that it will be beneficial for Canada but only marginally. As the Trudeau government does its best to clean up the mess Stephen Harper left behind, now is an opportunity for them to put our country back on the map and regain our place as the world’s moral authority.

That means making sure that if we ratify the agreement we do it on OUR terms, without bending over and throwing Canadians workers and businesses under the bus in the name of international cooperation.

It means not sacrificing our state sovereignty and our values. This is their chance. Let’s see if they take it.

News

Norberto Lopez’ eyes dart nervously out of our tour bus and at the synchronized commotion occurring at Colombia’s only major Pacific Ocean Port, Buenaventura.

The students had been protesting against the privatization of Colombian Universities, and had won – Article 30 had been announced ‘repealed’ earlier that 35C day, so the students were blockading and occupying the only bridge through town in celebration.

The on-site managing-director for a Port Authority that has 144 different operators vying for cargo and commission on a dock notorious worldwide for its narcotics trafficking, Noberto has the right to be tense – with or without the backed-up bridge.

The 5000 port workers who move 1200 containers of cargo per day are not the only contributors to the portside throng. There are truck drivers, stevedores, private security hired by companies and government agents who are in place to check area regulated by the Port Authority for narcotics and smuggling.

Add in the fishermen, women and informal workers from the neighboring barrio of San Jose de Buenaventura, and you have a controlled chaos that may be too large to contain when the Free Trade Agreements (FTAs) between Colombia, Canada and the US begin requiring larger shipping lanes and port expansion.

Like so many other issues in Colombia, Norberto sees Port Authority issues getting busier and larger as the FTAs begin to have their effects.

“The port will be busier and the port authority will be more important. How can we reduce accidents? How will labour standards be respected?” asks Norberto. “The Port Authority should be in charge of creating regulations – not only enforcing them.”

There are currently no security benefits or pensions for port workers. The Port gets around this labour inconvenience, as do the majority of multi-nationals working in Colombia, by hiring general labour through short 23-day contracts – this also ensures competition for jobs dividing the work force because the worker has no job security beyond the next three weeks or guarantee of contract renewal.

Juan (not his real name), was with us for the entire day. From when we hopped on motorcycle taxis to navigate through the car-jam in the noon day heat, until when we exchanged contact information between our teams in a dimly-lit Buenaventura hotel-room later that evening.

Juan was representing the Union Porturia de Colombia – What he stated to be the ‘true’ Buenaventura port workers’ union.

“Many large companies in Colombia create what they call “unions” and then these are who the companies deal and negotiate with – their own creations and not the workers,” Juan explains. “The Port Authority in Cartagena is the only PA which negotiates directly with its workers.”

What the Workers’ Union would like to see is an occasion to sit down, in a civilized fashion, with both port workers and members of the port authority to come to a working arrangement that would guarantee good lives and outcomes for all.

One important item to be discussed is the infiltration of labour co-operatives into the working pool. Not only do these sub-contractors take an additional fee from the workers’ salaries, these groups hardly, if ever, represent or respect acceptable labour standards.

There are 144 operators organizing at Port Buenaventura because each company sub-contracts their own workers to load and unload within the Port Authority. It has become so convoluted that there are some workers who have been unloading for years at Buenaventura, yet still receive different pay per load depending on which company’s load they are moving.

Both Juan and Norberto feel that there should be only one operator at the Buenaventura Port Authority, to assume all responsibility and standardize the pay rate at the docks.

There is also the problem of racism that needs to be discussed. The current impression in the Afro-Colombian community is that Afro-Colombian port workers, who are local, are being fired and replaced by workers brought from the Colombian interior, who are then paid better salaries and provisions.

Hopefully, these working discussions can translate into labour rights legislation from both the Colombian Congress and Senate – Juan and his union feel that these labour guarantees and protections will be more important now with the FTAs between Colombia and both the US and Canada.

What the Colombian Port Workers’ Union does recognize is that what they are asking for within their specific industry are the same recognitions sought by workers in different industries throughout the country.

Sugar cane cutters, flower growers and pickers, palm oil specialists and port workers all understand that by working together they will strengthen the success of the movement and avoid being part of a divided labour force which weakens the voice of demand.

And you will not be heard in Port Buenaventura, Colombia if you speak with a weak voice.

* Pictures by Tariq Jeeroburkhan, people pictured are not those mentioned in the report