When Canada negotiates with Donald Trump’s America, it’s not just trade that’s at stake. It’s our sovereignty

Posted on May 6, 2026 in Governance Policy Context

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TheStar.com – Opinion
May 6, 2026.   By Barry Appleton, Contributor

When CUSMA negotiations resume, Canada needs to protect its sovereignty from overly invasive stipulations, writes Barry Appleton.

Canada will celebrate our national holiday on July 1, when it sits down with the United States and Mexico to review the trade agreement that governs $1.3 trillion in annual commerce. Most Canadians have no idea what is at stake, and that is mostly our fault as a country.

In June 2020, I wrote in these pages about Canada’s vanishing digital sovereignty. I argued that Ottawa was favouring global tech platforms over Canadian interests. Six years later, the problem has become constitutional. CUSMA, the Trump-era replacement for NAFTA, does not just regulate trade. It restricts what Parliament can legislate, what regulators can require and what courts can enforce. The late Stephen Clarkson, one of Canada’s most prescient political economists, called the trade treaty’s regulatory control over Parliament as “supraconstitution.” He died in 2016, before he could see how right he was.

The question every Canadian should ask is whether Canada shaped this architecture or whether the architecture was shaped by others and accepted. The answer is the second.

Canada has not architected a major trade agreement since 1988. We negotiated NAFTA from a base we had not drafted. We joined the Trans-Pacific Partnership in 2012 by paying an explicit entry fee, accepting the existing text without the right to amend it. And in 2018, when the United States and Mexico had a bilateral deal ready to be signed without us, Canada folded within a day of President Trump publicly questioning whether a deal with Canada was possible. Jared Kushner tells the story plainly in his 2022 memoir. We took the deal rather than be left out.

We did not negotiate this agreement. We submitted to it.

CUSMA does seven specific things that Canada cannot easily undo. It blocks Parliament from requiring that data about Canadians stay in Canada. It blocks regulators from auditing the algorithms that decide your credit score, your job application, and your insurance rate. It imports U.S.-style platform immunity, foreclosing Parliament’s ability to hold Facebook or X liable for algorithmic harm. It hands Washington a veto over our trade policy with China and any other country it labels a “nonmarket economy.” It converts a permanent treaty into a six-year leverage event, with the first review opening July 1. It subordinates Canadian standards on AI safety, environmental rules, and digital currency design to U.S.-led international consensus. And it rewrote our intellectual property law to lock in trade secret protections that, unlike patents, never expire. In essence, the treaty architecture forecloses regulatory audit of the algorithms governing Canadian life.

Canada has no modern federal trade secrets statute. The U.S. passed one in 2016. The European Union did the same. We have not. This is what I have called “Code Before Clause” writ large: when Canadian domestic law (the legal code) is undeveloped, trade treaty clauses instead fill the vacuum. The exits exist within CUSMA, but Canada has not walked through them because we have not built the institutional capacity to use them.

The way out is sequential. First, Parliament passes the laws Canada needs to govern its own digital economy. We need sovereignty over data, accountability for algorithms, and protection of critical digital infrastructure. We rebuild the expert advisory system Canada had at the negotiating table in 1988. The Sectoral Advisory Groups on International Trade won us the cultural exemption and dispute settlement protections in the original Canada-United States Free Trade Agreement. They were quietly disbanded under the Harper government in 2013 to save money. The Americans never disbanded theirs. They have over 700 cleared advisers ready to defend U.S. interests at the table on July 1. Canada has effectively zero. Then, and only then, we arrive at the table with red lines, mapped exceptions, and credible alternatives.

We have just under sixty days until we move dangerously close to becoming the fifty-first state.

We can still reverse course, but only if we act before the review’s July 1 Canada Day deadline.

Barry Appleton is an international trade lawyer, Professor and co-director at the New York Law School’s Center for International Law, and Interim Director of the Balsillie Legal Advisory Center at the Balsillie School of International Affairs.

https://www.thestar.com/opinion/contributors/when-canada-negotiates-with-donald-trumps-america-its-not-just-trade-thats-at-stake-its-our-sovereignty/article_c278cc6b-bf60-4933-9482-d8e82772ffd0.html?source=newsletter&utm_content=a03&utm_source=ts_nl&utm_medium=email&utm_email=0C810E7AE4E7C3CEB3816076F6F9881B&utm_campaign=top_35478

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