Bill 1 unconstitutional says trade expert

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A leading Canadian trade and public interest lawyer says that Bill 1, which at press time was set for third reading in the provincial legislature, violates constitutional law and should be withdrawn by the government.

In an opinion commissioned by the Canadian Union of Public Employees, Steven Shrybman, a lawyer with the firm Sack, Goldblatt and Mitchell, says that Bill 1, the Trade, Investment And Labour Mobility Agreement Implementation Statutes Amendment Act, 2008, “directly confront[s] basic constitutional norms, including the rule of law and democracy.”

“We found five grounds upon which the constitutionality of the bill and the agreement it seeks to implement would be a fail,” explains Shrybman over the phone in Vancouver. “In simple terms this is an attempt by the executive of a government—the cabinet—to arrogate power to itself from the legislature and from the courts and even from the federal government, because much of what they purport to do they don’t have the constitutional mandate to do.”

Bill 1 is the enabling legislation for the Trade, Investment and Labour Mobility Agreement (TILMA), a bilateral agreement between Alberta and BC which began on Apr 1, 2007 and will come fully into effect in 2009 if both provinces pass the required legislation.

The government says the agreement will eliminate unneeded barriers between the two provinces to create the country’s second-largest economy. In introducing the bill this April, Premier Ed Stelmach said it would “help ensure that Albertans can quickly take advantage of opportunities on both sides of the border without being hindered by unnecessary government and regulatory red tape.”

But critics say TILMA will have a devastating impact on the ability of governments—which under the agreement includes everything from the legislature to municipal councils to local school boards—to pass legislation in the public interest.

“It’s a preposterous initiative. The government presents it as an innocuous, limited enterprise and really that’s anything but the truth,” explains Shrybman. “It’s very broadly framed. Article 4 says that governments shouldn’t pass measures that interfere with or diminish investment, trade or labour mobility. Well, there’s little that a government does that doesn’t impact the market, whether it’s land-use planning or an environmental standard or a license to develop the tar sands. Virtually all of that has a huge impact on the market. Suddenly, under TILMA all that’s fair game for challenge by individuals or companies based in BC and vice versa.”

Complaints would be brought before an arbitral tribunal which has the power to award monetary awards of up to $5 million.
In his opinion, Shrybman argues the legislation violates the constitution by addressing matters of inter-provincial trade, which falls under federal jurisdiction; limiting the exercise of legislative and governmental authority by imposing financial penalties on the province for the lawful actions of governments and other public bodies; harming judicial independence by handing powers from courts to ad hoc tribunals; giving cabinet the right to nullify decisions of the legislature; and violating privacy and privilege by authorizing the collection and disclosure of information, including personal information and privileged communication.

Shrybman says that if passed the legislation could be challenged following a ruling, but given its constitutional implications a group or individual could claim public interest standing and bring the matter before the courts now.

“It’s really quite astonishing that it could happen and that it could get this far without it provoking a real storm of protest and controversy. It’s a disturbing kind of indictment of how much attention people are paying to issues like this, even though they speak very directly to the basic building blocks of a democratic society.” V

Bill 1 unconstitutional says trade expert

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