R v Comeau explained

Case-Name:R v Comeau
Full-Case-Name:Her Majesty the Queen v Gerard Comeau
Heard-Date:6–7 December 2017
Decided-Date:19 April 2018
Citations:2018 SCC 15
Docket:37398
History:APPEAL from R v Comeau. 2016. nbca. 73665. canlii. 2016-10-20., dismissing an application for leave to appeal from R v Comeau. 2016. nbpc. 3. 2016-04-29. . Leave to appeal granted, Her Majesty the Queen v Gerard Comeau. 2017. scc-l. 25783. canlii. 2017-05-04.
Ruling:Appeal allowed
Ratio:S. 121 prohibits laws that in essence and purpose impede the passage of goods across provincial borders and it does not prohibit laws that yield only incidental effects on interprovincial trade.
Scc:2016-2017
Percuriam:yes

R v Comeau. 2018. scc. 15. (referred to by some commentators as the Free the beer case)[1] 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,[2] the provision had been effectively been treated as a dead letter law. This has led to both levels of government feeling free to impose a series of non-tariff barriers on trade between the provinces.[3]

There has, however, been subsequent debate as to whether Gold Seal was rightly decided[4] and whether it would pass scrutiny under current Canadian constitutional law jurisprudence.[5]

Facts of the case

In 2012, Gérard Comeau travelled from his home in Tracadie, New Brunswick to Pointe-à-la-Croix, Quebec[6] to buy some beer at a store on the Listuguj Mi'gmaq First Nation priced cheaper than what he could obtain in his home province.[7] 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.[7] [8]

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.[9] [10]

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."[11] 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,[12] which summarily dismissed the application in October 2016.[13] Leave to appeal was granted by the Supreme Court of Canada in May 2017,[14] [15] for which the hearing was held in December 2017. When the application for leave was sought, it was welcomed by some commentators as "put[ting] an overdue issue to rest."[16]

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.[1] While New Brunswick asserted that it sought to maintain its right to generate liquor revenues, other provinces were more equivocal on the issue.[1] 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:[6]

The SCC decision

The appeal was allowed.[19] In a per curiam ruling, the Court held that the judge at first instance erred in departing from previous decisions of the Court.[20] 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.[21] The historical evidence admitted at trial was also insufficient in this regard.[22]

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.[32] Therefore, s. 134(b) of the Liquor Control Act does not violate s. 121.[33]

Impact and aftermath

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.[34] Bedford, Carter and Comeau can also be read together to suggest that "(1) lower courts must follow higher courts’ decisions, despite evidence that those decisions should have come out differently; and (2) courts should refrain from overruling themselves, even in matters of constitutional interpretation, where overturning long-entrenched precedent would be broadly disruptive."[35]

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.[36] 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."[37]

Other commentators were more critical in their assessment of Comeau:

Popular reaction

The decision was immediately attacked as being logically inconsistent and a "basket of contradictions",[38] and upholding "the strange and growth-defying ability of provinces to restrict inter-provincial trade."[42] 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."[43]

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."[38] In addition, Comeau was considered to be "legally wrong, historically flawed, metaphysically rotten and destructive," and "post-truth jurisprudence."[44] 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.[45] 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.[46] [47] [48]

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?"[49] 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."[50] 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."[51]

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,"[52] and that "[t]he system is too entrenched, with too many interests in every province hard at work keeping their corner of the country safe from competition."[53] 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.[54]

Further reading

Notes and references

References

Notes and References

  1. News: Platt. Brian. December 6, 2017. 'Free the beer' case reaches Supreme Court as provinces, dairy farmers argue to keep cross-border limits in place. The National Post.
  2. Gold Seal Ltd v Alberta (Attorney-General). 1921. scc. 25. canlii. 62 SCR 424. 1921-10-18.
  3. Web site: Citizen of One, Citizen of the Whole: How Ottawa can strengthen our nation by eliminating provincial trade barriers with a charter of economic rights. Crowley. Brian Lee. Knox. Robert. Robson. John . Macdonald-Laurier Institute. 2010. 8–9.
  4. Blue. Ian A.. 2010. Long Overdue: A Reappraisal of Section 121 of the Constitution Act, 1867. Dalhousie Law Journal. 33. 2. 161191. Schulich School of Law, Dalhousie University., at 182–186
  5. Blue. Ian . 2009. On the Rocks? Section 121 of the Constitution Act, 1867 and the Constitutionality of the Importation of Intoxicating Liquors Act. The Advocates' Quarterly. 35. 3. 306333. Canada Law Book Inc., at 311–312
  6. News: Wilson. Christopher. Spencer. Sabrina. December 15, 2017. An interprovincial beer run to the Supreme Court of Canada. The Lawyers Daily. LexisNexis Canada.
  7. News: Potter. Andrew. Canada's beer smuggler is our new national hero. The Globe and Mail.
  8. Liquor Control Act. R.S.N.B.. 1973. L-10. 134. b. https://www.canlii.org/en/nb/laws/stat/rsnb-1973-c-l-10/latest/rsnb-1973-c-l-10.html#sec134_smooth.
  9. Web site: R v. Comeau (on interprovincial trade). . September 17, 2015. theccf.ca. Canadian Constitution Foundation.
  10. News: Soupcoff. Marni. August 25, 2015. Freeing trade between provinces. National Post. Toronto .
  11. News: Ha. Tu Thanh. April 29, 2016. Interprovincial beer ban violates Constitution, N.B. judge rules . The Globe and Mail., citing R v Comeau. 2016. nbpc. 3. par. 183. 2016-04-29.
  12. News: White. Alan. May 27, 2016. New Brunswick appeals border booze court ruling. .
  13. R v Comeau. 2016. nbca. 73665. canlii. 2016-10-20. auto.
  14. Her Majesty the Queen v Gerard Comeau. 2017. scc-l. 25783. canlii. 2017-05-04. auto.
  15. News: . Supreme Court grants leave to appeal cross-border booze case. CBC News. May 4, 2017 .
  16. News: . Editorial: The beer that could change Canada. . December 5, 2016 .
  17. Murphy v CPR. 1958. scc. 1. canlii. p. 642. [1958] SCR 626. 1958-10-07. auto.
  18. R v Oakes. R v Oakes. 1986. scc. 46. canlii. [1986] 1 SCR 103. 1986-02-28. auto.
  19. News: Fine. Sean. April 19, 2018. Supreme Court upholds law in cross-border alcohol case. The Globe and Mail.
    News: Platt. Brian. April 19, 2018. 'Free the beer' case loses at Supreme Court, as trade barriers between provinces are ruled constitutional. The National Post.
  20. SCC, par. 8
  21. SCC, par. 26–35
  22. SCC, par. 36–43
  23. SCC, par. 53
  24. SCC, par. 67
  25. SCC, par. 68–73
  26. SCC, par. 74–76
  27. SCC, par. 77
  28. SCC, par. 88
  29. SCC, par. 97
  30. SCC, par. 107
  31. SCC, par. 114
  32. SCC, par. 124
  33. SCC, par. 126
  34. News: Schmitz. Cristin. April 19, 2018. Constitution doesn’t guarantee interprovincial free trade; SCC sheds new light on vertical stare decisis, federalism. The Lawyer's Daily. LexisNexis Canada .
  35. Web site: Beer, Bedford, and beyond — the Supreme Court of Canada and the limits of precedent in R. v. Comeau. Goldenberg. Adam. April 25, 2018. Canadian Appeals Monitor, McCarthy Tétrault.
  36. News: MacCharles. Tonda. April 19, 2018. Supreme Court upholds law prohibiting Canadians, wherever they live, from buying beer wherever they want. The Toronto Star.
  37. News: Sulzenko. Andrei. April 22, 2018. With beer-import ruling, the Supreme Court opens a provincial Pandora’s box . The Globe and Mail.
  38. Web site: Comeau is a Casualty of Confused Doctrine. Honickman. Asher. April 24, 2018. ruleoflaw.ca. Advocates for the Rule of Law.
  39. SCC, Par. 72
  40. Reference Re Same-Sex Marriage, par. 34
  41. Web site: Comeau's Lesson. Sirota. Leonid. April 22, 2018. doubleaspect.blog.
  42. News: Kaplan. Mischa. April 19, 2018. Why the Supreme Court 'beer case' should leave you frothing. The Ottawa Citizen.
  43. News: . The Supreme Court offers its foolish beer decision to a foolish nation. The National Post. April 20, 2018.
  44. News: Robson. John. April 27, 2018. The beer ruling shows the Supreme Court doesn't believe in 'truths'. The Financial Post.
  45. News: Ibbitson. John. April 19, 2018. A sigh of regret, and of relief, for the Supreme Court’s cross-border alcohol ruling. The Globe and Mail. John Ibbitson.
  46. News: Healing. Dan. April 19, 2018. Supreme Court beer ruling could apply to Trans Mountain pipeline feud between Alberta, B.C.: experts. The Toronto Star.
  47. News: Cryderman. Kelly. April 19, 2018. Supreme Court’s cross-border alcohol ruling could hit Alberta in pipeline dispute. The Globe and Mail.
  48. News: Cornellier. Manon. April 20, 2018. Bière, pétrole et fédéralisme à la Cour suprême. Beer, oil and federalism at the Supreme Court. fr. Le Devoir.
  49. News: Coyne. Andrew. April 20, 2018. Supreme Court beer ruling ties the constitution in knots, and the economy with it. The National Post. Andrew Coyne.
  50. News: Macfarlane. Emmett . April 19, 2018. In its ‘free-the-beer’ ruling, the Supreme Court reveals its contradictions. Maclean's.
  51. Web site: Unmaking History. Sirota. Leonid. April 20, 2018. doubleaspect.blog.
  52. News: Corcoran. Terence. April 19, 2018. It’s not just beer. Any goods could get snared under court's protectionist ruling. The Financial Post. Terence Corcoran .
  53. News: . A nation weeps in its expensive beer. The Globe and Mail. April 19, 2018.
  54. News: Herman. Lawrence. May 1, 2018. How the Supreme Court got the 'free the beer' ruling exactly backwards. The Financial Post.