Barry Appleton: Trump's demands to change our laws must be rejected

The United States pressed Canada on the protection of the French language and our culture until the very last minute of negotiations. That is Prime Minister Mark Carney's account. Reporting on the leaked terms adds that Ottawa was asked to scupper its digital legislation. Not amend it. Not delay it. Drop it. The American side disputes the characterization. Trade representative Jamieson Greer calls Canada's streaming rules 'the farthest thing from the red line,' and Canada's minister for trade with the U.S., Dominic LeBlanc, has welcomed Washington's withdrawal of its positions on language and culture. Take Greer at his word. He still confirms that American negotiators had questions about online streaming rules, and he listed 'digital trade alignment' among the things a deal would contain. A demand that can be withdrawn can be made again. Quebec's Bill 109, An Act to affirm the cultural sovereignty of Quebec, was adopted unanimously by the National Assembly last December and will require streaming platforms and device makers to surface French-language content for Quebec users. Its constitutionality is contested, because broadcasting has long been federal ground; that argument belongs to Canadian judges applying the division of powers. A foreign government put the repeal of Canadian statutes on a tariff schedule and came close to getting it. That is the logical end of a bargain Canada has been making quietly, and without argument, since the first free trade agreement. Whether our laws survive is a question for our courts. I spent my career on the free trade side of it. I advised Ontario's cabinet committee during the original NAFTA negotiations and the government of British Columbia during its implementation. Open markets made Canadians richer, and I would make that case again tomorrow. Having sat through those early trade rooms, I can tell you we never intended free trade to mean regulatory surrender. Somewhere along the way we confused two things. Neoliberalism was an argument for restraining our own government. In the digital economy we turned it into an argument for not governing at all, and assumed a rulebook we declined to write would stay blank. It filled with somebody else's. A market is a set of rules: property that can be owned, contracts a court will enforce, entry that is possible for a firm with a better product and no incumbent's permission. Someone writes those rules. The only question is who. For thirty years, the answer was somebody else. I agree with the familiar complaint about Canadian economic policy, then part company with it. Ottawa protects the wrong things. It shelters cartels in banking, telecom, airlines and dairy, which raises prices on Canadians and manufactures most of the irritants that dominate every negotiation we enter, and it then declines to protect competition in the one market where Canadian firms are price-takers with nowhere to go. We were promised that a fat, lazy incumbent invites competition. Digital markets run the other way. The more users a platform has, the more data it gathers and the better it gets at keeping them, so the leader pulls further ahead each year. Nobody catches up from behind. We over-govern where we should compete. We under-govern where we are being farmed. Take the market Canadian businesses actually buy in. An advertiser bids for inventory on an exchange owned by the company, Google, that also owns the publisher's ad server. In April 2025 an American federal court found that arrangement illegal. Canada's Competition Bureau filed its own case in November 2024, and twenty-one months on, the Tribunal has disposed of a preliminary motion while the liability hearing has not started. Now consider what Washington calls unfair. The 2026 National Trade Estimate Report lists, among barriers to American trade in Canada, an entry titled Sovereign Cloud Initiative, whose offence was that Shared Services Canada asked suppliers whether Ottawa's own data could stay in Canada. A question about a purchase, filed as a trade barrier. Two entries above sits Buy Canadian, which gives Canadian bidders a 10 per cent credit at evaluation and excludes nobody. The Buy American Act of 1933 adds 20 per cent to a foreign bid before it is weighed against a domestic one, 30 for a small business, 50 at the Pentagon. The Berry Amendment, a 1941 law requiring the pentagon to buy its food, clothing and textiles from American producers, has never been waived under any trade agreement the United States has signed. A 10 per cent preference is a barrier. Fifty per cent is policy. Which brings up the digital services tax. Nobody need mourn it. It was clumsy, and the Parliamentary Budget Officer's $7.2 billion was a projection, never a dollar collected. Its merits are a separate argument from who ended it and what Canada got. Ottawa repealed its own statute under pressure and received no named thing in return. A country that repeals its own laws for nothing is not negotiating. It is being invoiced. None of this argues for what readers of this newspaper reasonably fear. I propose no new agency, no new levy, no regulator to supervise the internet. The instruments that matter are the ordinary powers of an owner and a customer. Ottawa has spent nearly $1.3 billion on American cloud since 2021 while announcing a sovereign cloud of its own. It can set terms on what it buys: who owns the intellectual property, where the data sits, what a vendor discloses to the customer paying. Every business in this country writes such terms. Canada will sit at the CUSMA table every year until 2036, and it cannot negotiate what it has not built. Free markets get built, defended and repaired by people prepared to say what fair means inside their own borders. We spent a generation calling our refusal to do that a principle. The bill arrived two weeks ago. Barry Appleton is the interim director of the Balsillie Legal Advisory Centre at the Balsillie School of International Affairs, adjunct professor at Wilfrid Laurier University, managing partner of Appleton & Associates International Lawyers LP, and a co-director of the Center for International Law at New York Law School. He is the author of Navigating NAFTA.