Brian Lee Crowley

Why the SCC must not have the last word on Comeau and barriers to trade

Another hot topic for Canadians in 2018 was the disappointing decision of the Supreme Court of Canada on the Comeau “Free the Beer” case. Here is some of my commentary following that decision:

First, I took the SCC to task for its failure to honour Canadians’ economic rights and its tendentious reading of the plain language of the Constitution. In a 21 April 2018 op-ed published in the major dailies throughout New Brunswick (where the Comeau case originated) I also pointed out that it was probably always a long shot that the profoundly economically-ignorant SCC might solve Canada’s failure to fix its internal barriers problem. That puts the onus right back squarely where it has always been: on Ottawa’s shoulders.

On 30 April MLI released a video of me making the same case.

Finally, on 16 May 2018, Sean Speer and I co-wrote a piece for Inside Policy reiterating these arguments and adding new ones about Canadians’ economic rights!

Duty to consult: What it is…and isn’t

In my column for the ROB’s (Globe and Mail) Economy Lab today I put under the microscope the Supreme Court of Canada’s doctrine of the Crown’s duty to consult and accommodate Aboriginal people when their key interests are engaged, as in e.g. natural resource developments. As I see it, the doctrine leaves intact governments’ ability to act in the larger public interest, but they may only do so after good faith consultations with Aboriginal people. *Both* parties must come to the table and seek agreement in good faith. This means that neither Aboriginal communities nor governments are entitled to decide unilaterally whether adequate consultation has taken place.  Ultimately the courts will arbitrate. Thus this is neither a blank cheque to governments to carry on as before, nor a right of veto for Aboriginal people, but a call by the courts for constructive engagement. The balance is a fine one. Can we make it work?

No time to give up on Senate reform

The Supreme Court of Canada has ruled out almost all of Ottawa’s attempt at Senate reform that would skirt the need for a constitutional amendment. So be it (even though I think, as usual, the SCC has abused its power and mistaken itself for God rather than the guardian of the law as actually written…). In my column for the Citizen and other Postmedia papers, I lay out the case why we should redouble our efforts and confront the need for constitutional change head on.

Why we need Clarity Act Mark II before next referendum

In my latest column for the Ottawa Citizen and other Postmedia papers I call for Ottawa to supplement the Clarity Act with another law that fills in the gaps left by that original landmark legislation. Mark I gives legislative form to the Supreme Court’s ruling in the Secession Reference, but only with regard to the Court’s rules about the standard Quebec must reach to trigger an obligation on the ROC to sit down and negotiate. The SCC went on to say a lot about what would have to happen wrt the negotiations themselves for them to be regarded as constitutional and respectful of the rule of law. Once the April 7th Quebec election is out of the way, if the PQ has their majority Ottawa should table Mark II, laying out what its negotiating mandate would be in any eventual negotiations (e.g. protection of minority rights, which means dismembering Quebec), and well as how Ottawa should respond if Quebec flouts the SCC rules on things like a clear question. Stern but bracing stuff!

Brian Lee Crowley
Get Adobe Flash player