Internal Trade Barriers in Canadian Federalism: Privy Council Doctrine and Supreme Court Continuity

Abstract

This Canada’s internal market remains fragmented despite the consolidation of judicial authority in the Supreme Court of Canada and the availability of constitutional tools capable of supporting national economic coordination. This article examines how early interpretations of the federal trade and commerce power by the Judicial Committee of the Privy Council shaped a doctrinal framework that continues to constrain internal trade regulation. It contributes to Canadian constitutional scholarship by showing that, in the constitutional domain, common-law adjudication does not necessarily evolve toward greater economic efficiency: early doctrinal settlements may persist. Methodologically, the article adopts a doctrinal–institutional approach, analysing leading Privy Council and Supreme Court of Canada decisions on section 91(2) of the Constitution Act, 1867. The analysis focuses on purposively selected cases that structured constitutional interpretation of internal trade rather than offering an exhaustive survey. A limited comparative reference to European Union internal market law is employed illustratively, using the principle of mutual recognition as a benchmark to clarify the conceptual distinction between decentralized governance and effective market integration. The article concludes that internal trade barriers in Canada reflect durable constitutional choices rather than incidental policy failure, and that meaningful correction is more likely to depend on political coordination or legislative initiative than on judicial evolution alone.