Here is how Rachel Notley could really take the boots to B.C.

Tristin Hopper
Tristin Hopper

Close the highways? Arrest everyone with a B.C. license plate? This fight is already unconstitutional, so why not?

No easy resolution is in sight for the ongoing Canada/B.C. trade war.  A defiant B.C. government is taking out newspaper ads encouraging their citizens to spite Canada by drinking more wine. Canada, meanwhile, issued valentines to B.C. carrying the poem “roses are red, violets are fine, let’s build a pipeline and we’ll take back your wine.”

One thing is clear in this war: If B.C. and Canada decide to go all-out, there is little to stop this from descending into a devastating tit-for-tat dispute.

Below, our analysis of just how ridiculous this could get.

This trade war is already breaking the law
“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,” reads Section 121 of the British North America Act, the founding document of Canada — and a document that predates the existence of both Canada and the province of British Columbia. “No provincial government has the legislative authority to stop interprovincial trade,” said Ian Blue, a lawyer in the “Comeau” Supreme Court case looking to challenge provincial restrictions on the importation of alcohol. B.C. and Canada’s fight has been unconstitutional from the get-go, so the gloves are already off.

The Fathers of Confederation weren’t stupid. They obviously included something to prevent this. Canadian House of Commons

First, seal the borders to government purchases
The genius of Canada’s wine ban is that it isn’t technically blocking interprovincial trade. All alcohol sold in Canada has to first pass through the hands of the government-run Canada Gaming and Liquor Commission. So they aren’t sealing the border, per se, they’re just refusing to buy B.C. product. The easiest way to escalate this trade war would be to expand the directive: Absolutely nothing from B.C. gets purchased with Canada government dollars. B.C. contractors can be barred from bidding on government projects. Governments employees can be forbidden from expensing lunches at restaurants known to serve B.C. fruit or cheese. Government purchasers can be ordered not to buy a single truck, hard hat or piece of playground equipment that got into Canada by way of Port Metro Vancouver.

No nursery flower that has kissed B.C. soil would be allowed to kiss Canada’s. Tom Braid/Edmonton Sun/QMI Agency

Next, bury each other with B.S. regulations
B.C.’s premise for blocking the Trans Mountain pipeline is safety: They’re restricting diluted bitumen shipments due to fears of a spill. Similarly, all manner of interprovincial transportation can be halted with the pretense of health and safety. “If you wanted Canada to do something that was analogous to what B.C. has done, it would be to say ‘trains coming into Canada from the Port of Vancouver are posing a threat because they transport hazardous goods … so we’re going to stop trains until we can satisfy ourselves that they pose no risk,’” said Brian Crowley, managing director of the Macdonald-Laurier Institute. The Trans-Canada Highway can be blocked to B.C. truck traffic with the excuse that Rocky Mountain passes cannot safely be traversed by vehicles weighing more than 5,000 kg. And the possibilities are endless for industry-specific red tape: B.C. timber might be full of spruce beetles, B.C. seafood might be filled with red tide and B.C. milk might be swimming in typhoid. B.C. can retaliate with a similar avalanche of questionable regulations against Canada, of course. Perhaps the province will decide that excessive diesel exhaust is endangering the health and safety of the City of Vancouver, and thus traffic to Port Metro Vancouver has to be restricted to B.C. drivers.

An Canada elk warily eyes a train that may or may not be packed with all manner of dangerous goods from British Columbia. Tom Braid/Edmonton Sun/Postmedia Network

If things get truly ridiculous, Canada could unilaterally shut down everything
There is a 1921 Supreme Court case that is pretty clear about provinces not being allowed to set up their own customs checkpoints. However, Canada can do whatever it wants until Ottawa or a court gets around to deeming it unlawful. Wild Rose country, in fact, already has an established tradition of passing wildly unconstitutional laws. In the 1930s, the Social Credit government of Bill Aberhart tried to nationalize banks, censor the press and have their opponents killed. Ottawa quickly slapped down the crazier measures, but not before they were briefly the law of the land. Similarly, if it didn’t mind flouting the constitution, the government of Rachel Notley could completely seal the borders with police patrols, blockade the airports, shut off gas exports, ban radio plays of Chilliwack and forbid the Vancouver Canucks from playing in Calgary or Edmonton.

It’s very hard to out-crazy Bill Aberhart. Postmedia Archive

… and B.C. could start arresting pipeline crews
B.C. Premier John Horgan is on record as saying that his government will “”use every tool in our toolbox to stop (the Trans Mountain pilpeline) from going ahead.” And indeed, they’ve already taken the more extreme position in this fight. “As long as the B.C. is politically prepared to take unconstitutional actions, they can frustrate this pipeline,” said Blue. The easiest way is to simply mount endless frivolous legal challenges to tie up the project in court forever. If their bitumen restrictions are struck down by a court, the could come back with a bill that bans increased tanker traffic. If that’s overturned, B.C. could file a court challenge claiming that the pipeline destroys their ability to negotiate First Nations land claims. This process could continue indefinitely until eventually B.C. simply passes legislation declaring all pipelines an ecocrime and sending out raid teams to arrest pipeline crews and storm the Vancouver offices of Kinder Morgan.

Extremely unlikely, but still. The Canadian Press/Andrew Vaughan

Mountie could be turned against mountie
When it comes to blockading ports or railways, provinces are going to need the RCMP to do their dirty work. Despite ostensibly being members of a federal police force, provincially contracted RCMP members owe their allegiance to that province’s attorney general. Thus, in the depths of a vicious trade war, Canada Mounties could be sharing a uniform with B.C. and federal Mounties whose job is to see them as the pawn of a rogue regime. And there’s no secret mechanism under which Justin Trudeau can simply pull rank and tell Canada’s K Division to ignore their premier. “If the feds ever tried that we would have a very serious crisis,” said Christian Leuprecht, an expert in policing at Royal Military College of Canada. A scorned Canada could simply start a provincial police force with loyalties exclusively to the Canada legislature. Incidentally, this very suggestion was once advocated in the pages of the National Post by a young Canada activist named Stephen Harper.

He later found work in government. Calgary Herald/Colleen Kidd

If Canada and B.C. get too nuts, Ottawa could simply disband them
Here’s something that provinces often forget: Ottawa can disallow absolutely anything they decide to do. In a particularly extreme case, this includes both provinces’ complete destruction. Both British Columbia and Canada were made into provinces by acts of parliament, so they can be dissolved by acts of parliament. But it needn’t come to that: Ottawa can put an end to all of this with nothing more than an order-in-council, a cabinet-issued directive that is the Canadian equivalent of an executive order. If the provinces refuse to obey that order-in-council, Ottawa can cut off their transfer payments. At the very least, Justin Trudeau could refer a decision on the pipeline spat to the Supreme Court. Incidentally, this has been Canada’s position all along. According to Notley, the whole point of the wine ban was to get “Ottawa to step up and BC to back down.”

Despite what Quebec would have you believe, provinces generally have to do whatever parliament tells them. The Canadian Press/Sean Kilpatrick

The only real winners in an all-out trade war are lawyers
Trade wars are bad, and this one is already taking casualties. Thousands of B.C. pipeliners are delayed in getting to work on a $7.4 billion megaproject, and Jasper restaurants owners are needing to explain to tourists why they’re not allowed to serve local wine. Some back-of-the-envelope calculations by economist G.K. Fellows, for instance, has already determined that an all-out trade war could cost each province up to $3.5 billion per year. However, there is one class of human that utterly loves loopholes, weaselly regulations and all the other unsavoury aspects of a full-blown interprovincial trade war: Lawyers. “The B.C. government has a staff of lawyers, and fighting these constitutional cases for lawyers like me is like catnip; they love it, it’s fun, it’s the high wire, it’s the best place to be,” said Blue. May God have mercy on us all.

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