Court is drunk on its own protectionist powers
Provinces’ finances, not our health, is being protected
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 wilful naivete?
Perhaps it’s the grating hypocrisy: the lectures on the sanctity of precedent, from a court famous for discarding precedent when it suits it; the obvious efforts to fit constitutional interpretation to a desired policy outcome, even as it piously decries the practice; the disavowal of all “preconceived theories” of federalism except its own.
Or is it the feckless evasion of responsibility, the hot-and-cold deference, the myopic refusal to look at more precise remedies to the problem it identifies, in favour of the jurisdictional equivalent of chemotherapy?
Regardless, this latest in a string of erratic decisions by the highest court in the land will do the country serious harm. Canada will not merely be stuck with hundreds of existing provincial barriers to trade indefinitely, in defiance of the central objective of our founders: the provinces have been given the green light to put up more.
To the decision, and two pertinent, contradictory texts. On the one hand, Section 121 of the Constitution Act 1867 states: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”
On the other, Section 134 (b) of the New Brunswick Liquor Control Act, which makes it an offence to “have or keep liquor” unless purchased from the New Brunswick Liquor Corporation, effectively prohibiting imports from other provinces — such as the beer purchased in Quebec and driven across the border by the eponymous Comeau.
S. 121 is clear enough, on its face: “All Articles … admitted free” would seem to suggest all articles should be admitted freely. The court professes to find it deeply mysterious, even presented with evidence the Fathers of Confederation adopted this expansive language only after debating narrower wording.
To be sure, the court has decades of jurisprudence to work with, notably the 1921 Gold Seal decision that found the provision only applied to tariffs — a precedent the court briskly sets to one side, after finding fault with the trial judge for doing the same. Instead, it rules Section 121 applies both to tariffs and to “tariff-like” measures — anything that adds to the cost of transporting goods across provincial lines, including outright prohibitions.
At the same time, the court cannot bring itself to believe the section prohibits all barriers to internal trade, not least because the provinces, pouring through the gap left by Gold Seal, have erected so many. “If to be ‘admitted free’ is understood as a constitutional guarantee of free trade,” it gulps, “the potential reach of s. 121 is vast.”
The same potential for upheaval, it is worth noting, did not prevent it from discovering, in past decisions, a constitutional right to secede, or a constitutional right to strike, both more or less out of whole cloth; neither did it trouble it unduly in the Singh or Jordan decisions, or when it was rewriting much of the country’s laws on divisive social questions.
But never mind. The court is surely right to say the provision could not have been meant to apply to any and all provincial laws that have any impact on trade, no matter how trivial the infringement or how vital the legislation’s purpose. But a common-sense reading of the text would also suggest the bias was intended to be in favour of openness.
So when the court distinguishes between laws whose “essence and purpose” is to restrict trade between the provinces, and those where that is only the “incidental effect,” it is not far off. It is everything that comes after that’s the trouble.
Rather than put the onus on the provinces to justify a law that restricts trade, the court would oblige complainants to show that restricting trade is not just its purpose, but its “primary purpose.” All the provinces would have to show is that the law is “rationally connected” to some other purpose — any purpose will do.
That’s wildly overbroad. Not only would it make room for virtually any barrier to trade — it would be short work to come up with some broader purpose it was intended to achieve — but, as the law professor Malcolm Lavoie (who acted for an intervener in the case) has observed, it makes the entire section superfluous. If s. 121 only prohibits laws whose “primary purpose” is to restrict trade, it does nothing that is not already done by s. 91, the one assigning the federal government exclusive right to make laws governing “trade and commerce.”
And yet this problem, of balancing a general preference for free trade against other valid policy objectives, is not a new one. Had the court chosen, it might have looked at how other countries have struck this balance in their own internal trade regimes. Or it might have looked at how international trade agreements have done it.
Or (again borrowing from Lavoie) it might have adapted its own jurisprudence on the Charter, requiring provinces to show the impugned measures were not just rationally connected to some purpose, but that they were both necessary — there was no other way to achieve the desired end, less restrictive of trade — and proportional, weighing the good achieved against the harm.
Even if you buy the court’s approach generally, it is baffling to see how it could be made to apply to provincial liquor monopolies. On what planet is an absolute ban on out-of-province booze “incidental”? How blind do you have to be to swallow provincial claims that their purpose is health and safety, rather than making money — or that the only way to regulate for health and safety is to take over the entire business as a state monopoly?