R v Comeau


is a leading and controversial case of the Supreme Court of Canada concerning the scope of free trade between the provinces of Canada under s. 121 of the Constitution Act, 1867.

Background

While s. 121 of the Constitution Act, 1867 declares that "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall... be admitted free into each of the other Provinces," Canadian jurisprudence has rarely been given in the matter and, since the Gold Seal case in 1921 held that it was strictly restricted to the imposition of customs duties, the provision had been effectively been treated as a dead letter. This has led to both levels of government feeling free to impose a series of non-tariff barriers on trade between the provinces.
There has, however, been subsequent debate as to whether Gold Seal was rightly decided and whether it would pass scrutiny under current Canadian constitutional law jurisprudence.

The case at hand

In 2012, Comeau crossed the border to go to Pointe-à-la-Croix, Quebec from his home in Tracadie, New Brunswick to pick up some beer at a store on the Listuguj Mi'gmaq First Nation priced cheaper than what he could obtain in his home province. He was caught in a sting operation and handed a ticket of almost $300 for possessing liquor not purchased from the New Brunswick Liquor Corporation, in violation of that province's Liquor Control Act.
In 2015, Comeau contested the ticket in a trial in Campbellton, New Brunswick. His defence, supported by the Canadian Constitution Foundation, included a constitutional challenge based on s. 121.

The courts below

In April 2016, the trial judge invalidated the provisions, declaring, "That historical context leads to only one conclusion: The Fathers of Confederation wanted to implement free trade as between the provinces of the newly formed Canada." Upon learning of his victory, Comeau said:
The local Crown Attorney sought leave to appeal the decision directly to the New Brunswick Court of Appeal, which summarily dismissed the application in October 2016. Leave to appeal was granted by the Supreme Court of Canada in May 2017, for which the hearing was held in December 2017. When the application for leave was sought, it was welcomed by some commentators as "put an overdue issue to rest."

Hearing at the Supreme Court

In addition to Comeau and the Attorney General of New Brunswick, 24 interveners were also heard, thus calling for a rare two-day hearing at the Court. In a joint submission, agricultural producers argued that upholding the decision would threaten the Canadian supply management system. While New Brunswick asserted that it sought to maintain its right to generate liquor revenues, other provinces were more equivocal on the issue. There was very little common ground among the parties as to what type of test should be applied with respect to the scope of s. 121:

The SCC Decision

The appeal was allowed. In a per curiam ruling, the Court held that the judge at first instance erred in departing from previous decisions of the Court. Subject to the extraordinary exceptions noted in Bedford and Carter, stare decisis requires a lower court to apply the decisions of higher courts to the facts before it, and the exceptions did not apply in this case. The historical evidence admitted at trial was also insufficient in this regard.
The Court accepted the invitation to provide guidance as to how to apply s. 121 in future jurisprudence:
In the immediate case, the objective of the New Brunswick scheme was held not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick. Therefore, s. 134 of the Liquor Control Act does not violate s. 121.

Impact and aftermath

Popular reaction

The decision was immediately attacked as being logically inconsistent and a "basket of contradictions", and upholding "the strange and growth-defying ability of provinces to restrict inter-provincial trade." One editorial stated, "The Supreme Court’s decision this week in the 'Free the Beer' case could drive you to drink. Not that you’ll have many beverage options to choose from. At least not Canadian ones."
The Court was described as one "that appears far more concerned with what it considers to be good social and economic policy than with the text of the Constitution." In addition, Comeau was considered to be "legally wrong, historically flawed, metaphysically rotten and destructive," and "post-truth jurisprudence." While the case was focused on the crossborder transport of liquor, a professor at the University of Ottawa observed that "The elephant in the room seems to be all the other regulations that are going on in the background," thus pressuring the Court to be cautious. It was also suggested that the language of the ruling relating to s. 121's ability to bar punitive barriers was written with the controversy surrounding the Trans Mountain pipeline expansion on their minds.
A commentator exclaimed, "What is the worst part of the Supreme Court’s decision in R v Comeau? Is it the shoddy reasoning, the tendentious reading of simple declarative statements, the selective approach to history, the willful naïveté?" Another said that the Court was being "pathologically timid while somehow simultaneously rendering an unpopular decision," and its assertion that the New Brunswick law had only an incidental effect on interprovincial trade was "like arguing that a rule removing one of the team’s nets has only an incidental effect on a hockey game." It was noted that "Comeau countenances even restriction on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic."
Opinions were also expressed that New Brunswick's liquor monopoly represented "raw trade protectionism", where "there is no provincial trade barrier that cannot be dressed up in the clothes of a broader provincial program," and that "he system is too entrenched, with too many interests in every province hard at work keeping their corner of the country safe from competition." A Fellow of the C.D. Howe Institute noted that the "primary purpose" test devised by the Court essentially reverses the onus of proving that a practice is discriminatory, in contrast to what the World Trade Organization and the General Agreement on Tariffs and Trade use in their proceedings to determine such matters on an international scale.

Legal commentary

Legal and constitutional commentary was mixed. Some lawyers welcomed the Court's statements describing the federalism principle as being neutral, the current nature of stare decisis, and the use of an "essence and purpose test" in determining whether a federal or provincial measure impedes interprovincial trade. Bedford, Carter and Comeau can also be read together to suggest that " lower courts must follow higher courts’ decisions, despite evidence that those decisions should have come out differently; and courts should refrain from overruling themselves, even in matters of constitutional interpretation, where overturning long-entrenched precedent would be broadly disruptive."
While not discussed in the ruling, it was suggested that the federal government can exercise its trade and commerce power to lower interprovincial trade barriers. That has been disputed, as Comeau can be construed as restricting the federal power, thus opening a Pandora's box in enabling the provinces to create an "oxymoronic economic union by using some high-sounding, overriding public-policy objective."
Other commentators were more devastating in their assessment of Comeau: