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CONSTITUTIONAL VALIDITY OF LEGISLATION - Level of government - Provincial or territorial legislation - Interpretive and constructive doctrines

Thursday, April 19, 2018 @ 1:16 PM  


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Appeal from a judgment of the New Brunswick Court of Appeal dismissing an application for leave to appeal a decision declaring s. 134(b) of the Liquor Control Act (LCA) of no force or effect with respect to Comeau. Returning from Quebec to New Brunswick, Comeau was stopped by the RCMP. The police found a large quantity of beer and some bottles of spirits in his vehicle. It was not in dispute that Comeau purchased quantities of alcohol in excess of the applicable limit prescribed by s. 43(c) LCA. Comeau was charged under s. 134(b) LCA and consequently issued a fine. Comeau challenged the charge on the basis that s. 121 of the Constitution Act, 1867 rendered s. 134(b) LCA unconstitutional and therefore of no force and effect. Comeau contended that s. 121 was essentially a free trade provision. In his view, no barriers could be erected to impede the passage of goods across provincial boundaries. The Crown argued that s. 121 was only intended to dismantle the power to impose tariffs or tariff-like charges at provincial boundaries. The trial judge agreed with Comeau. The trial judge held that, given his conclusions regarding the drafters’ intent, s. 121, correctly construed, prohibited all barriers to interprovincial trade. As s. 134(b) LCA discouraged cross-border purchases and therefore limited access to extra-provincial liquor, the trial judge determined that it infringed s. 121 of the Constitution Act, 1867. The New Brunswick Court of Appeal dismissed the application for leave. The Crown now appealed this decision.

HELD: Appeal allowed. In holding that s. 134(b) LCA was invalid because it offended s. 121 of the Constitution Act, 1867, the trial judge departed from binding Supreme Court of Canada precedent on the basis of historical and opinion evidence tendered by an expert witness. Common law courts were bound by authoritative precedent. The trial judge erred in departing from binding precedent on the basis of historical evidence and the expert’s opinion of how that evidence should inform the interpretation of s. 121. Neither was new evidence that met the threshold of fundamentally shifting the parameters of the debate about how to interpret the Constitution Act, 1867. The modern approach to statutory interpretation provided a guide for determining how “admitted free” should be interpreted. The text, historical context, legislative context, and underlying constitutional principles did not support Comeau’s contention that s. 121 should be interpreted as prohibiting any and all burdens on the passage of goods over provincial boundaries, essentially imposing an absolute free trade regime within Canada. The Canadian federation provided space to each province to regulate the economy in a manner that reflected local concerns. Historical, constitutional and legislative contexts supported a flexible, purposive view of s. 121, one that respected an appropriate balance between federal and provincial powers and allowed legislatures room to achieve policy objectives that could have the incidental effect of burdening the passage of goods across provincial boundaries. Section 121 of the Constitution Act, 1867 prohibited laws that in essence and purpose restricted trade across provincial boundaries. Laws that only had the incidental effect of restricting trade across provincial boundaries because they were part of broader schemes not aimed at impeding trade did not offend s. 121 because the purpose of such laws was to support the relevant scheme, not to restrict interprovincial trade. The text and effects of s. 134(b) LCA indicated that its primary purpose was to restrict access to liquor purchased from sources other than the New Brunswick Liquor Corporation, not just liquor brought in from another province like Quebec. The objective of the New Brunswick scheme was 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, while s. 134(b) in essence impeded cross-border trade, this was not its primary purpose. Section 134(b) LCA did not violate s. 121 of the Constitution Act, 1867.

R. v. Comeau, [2018] S.C.J. No. 15, Supreme Court of Canada, McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ., April 19, 2018. Digest No. TLD-April162018011SCC