Sujit Choudhry, Strengthening the Economic Union: The Charter and the Agreement of Internal Trade, 12 Const. F. 52 (2002)
The standard story in public policy and constitutional circles on the relationship between the Constitution and the Canadian Economic Union is a story of constitutional failure: that the Constitution has proven to be ineffective at furthering the integration of the Canadian economy. As a consequence, securing this goal requires either constitutional amendment or, in the face of the impossibility of large-scale constitutional change, the use of non-constitutional policy instruments such as the Agreement on Internal Trade (AIT), an intergovernmental agreement designed to remove barriers to interprovincial economic mobility. In this paper, I challenge this view. My argument is that constitutional litigation under the Canadian Charter of Rights and Freedom’s mobility rights provisions can serve as an effective alternative to the various mechanisms (adjudication and negotiation) established under the AIT to further the integration of the Canadian economy. Moreover, I suggest how constitutional litigation can actually strengthen the AIT, rather than simply serve as an alternative to it.