Eric Adams teaches and researches constitutional law at the University of Alberta
Saskatchewan delivered a lump of coal to Alberta last week in the form of a work ban preventing Albertans from employment on Government of Saskatchewan construction projects.
Last Wednesday, a Saskatchewan government press release announced that vehicles displaying Alberta licence plates would "no longer be allowed on job sites for Ministry of Highways and Infrastructure's new projects." The release continued ominously: "New contracts awarded by the ministry will require suppliers to ensure that no vehicles displaying Alberta license plates are present on ministry-funded work sites. This will include contractors, sub-contractors, consultants and workers. Ministry staff will enforce the contract provision through job site monitoring." It sounded like an implausible law school exam hypothetical.
Alberta angrily responded that Saskatchewan had one week to remove the ban. Saskatchewan Premier Brad Wall, in turn, blamed Alberta's protectionist trade barriers for inspiring Saskatchewan's "retaliatory measure."
Given the spirit of the season, maybe the best hope for a resolution to what some call plate-gate is not to be found in testy ultimatums or partisan barbs, but rather in the wisdom of the Ghosts of Constitutional Past, Present, and Future.
First, to the past. Confederation, George Brown explained in 1865, involved dismantling the colonial borders that made travelling across the provinces, "like going to a foreign country." Canada's new Constitution, he explained, would "throw down all barriers between the provinces – to make a citizen of one, citizen of the whole." More than promoting free trade in goods, the creation of Canada would encourage the free movement of people so "the professional and industrial walks of life, throughout all the provinces, shall be thrown equally open to us all."
In 1951, the Supreme Court of Canada's Justice Ivan Rand extended Brown's conception of the rights of constitutional citizenship. Provinces, Rand held, could not lawfully deprive "a Canadian of the means of working" by discriminating by place of origin. Discrimination by provincial residence "is to destroy the fundamental liberty of action of the individual," Rand argued; "under such a ban, the exercise of citizenship would be at an end."
But borders can be stubborn. While Confederation removed the most visible forms of provincial border taxes, restrictions on the freedom to work across Canada remained. During the committee debates leading to the entrenchment of the Canadian Charter of Rights and Freedoms in 1981, the Chief Commissioner of the Canadian Human Rights Commission complained that provincial employment barriers resembled "medieval Europe." "[D]o we not have anything in common as citizens?" Gordon Fairweather asked. If not, "we are just wasting our time here."
Enter the Ghost of Constitutional Present. Section 6(2) of the Charter guarantees Canadians "the right to pursue the gaining of a livelihood in any province." Judicial interpretations of the section have been clear as Jacob Marley's warnings. Mobility rights, the Supreme Court held, "ensure one of the conditions for the preservation of the basic dignity of the person …. mobility in the gaining of a livelihood." Not a right to work per se, but rather a right to work anywhere in Canada without discrimination based on provincial residence. The right, in other words, "to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries."
Saskatchewan's discriminatory plate scheme appears to infringe other aspects of the constitution as well. The rule of law demands that governments act only through law. From what authority does Saskatchewan draw its power to discriminate against Albertans? The press release does not say. In Roncarelli v. Duplessis, Justice Rand famously confirmed that the rule of law prohibits governments from exercising public authority in irrationally discriminatory ways unless the ability to do so is clearly authorized by statute.
Finally, a vision from the Ghost of the Constitution Yet to Come. If the constitutional lessons of the past and provisions of the present are ignored, we see the "shadows of the things that have not happened, but will happen in the time before us." One possible future predicts no end to the petty retaliations and trade barriers provinces could enact against one another, and the sealing of borders, loss of opportunities and economic inefficiencies that would result. Governments would spend more time and resources fighting one another in media scrums and in court. Provinces would become like Scrooge: "hard and sharp as flint … solitary as an oyster."
It does not have to be.
"I will live in the Past, the Present, and the Future," Scrooge declared as he woke from his ghostly visions. "The Spirits of all three shall strive within me."
We can wake up too, and the people of Lloydminster, like the rest of us, can celebrate the season in joy.