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Stay calm and carry on the message in R. v. Comeau | Richard Pound

Monday, April 23, 2018 @ 11:59 AM | By Richard Pound

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Richard Pound
Okay, everyone, take a Valium. For the Chicken Littles among us — relax. The sky is not falling on the regulation of interprovincial trade. Section 121 of the Constitution Act, 1867 is not dead. Its important role has simply been brought into slightly sharper focus. By the same token, the provinces have not been turned loose to completely frustrate the free movement of goods in the context of interprovincial trade.

One of the main themes in this unanimous decision of the Supreme Court of Canada in R. v. Comeau 2018 SCC 15, is the proper role of stare decisis (particularly in the vertical expression of the concept) in the common law courts. It is not just an expression — it is a judicially created rule of interpretation, designed to provide a degree of stability in decisions of the courts. Lower courts are bound to apply the decisions of higher courts, except in extraordinary circumstances. In that respect, the threshold for change is demanding. Such circumstances require fundamental shifts, based on compelling evidence that has the effect of significantly, even fundamentally, changing the parameters of the legal debate and how jurists understand the nature of the question before the courts.

In the current case, the evidence of the historian, offered as an expert witness, was not sufficiently compelling — nor did it have the effect of demonstrating a paradigm shift that could justify departing from the existing jurisprudence. Nor, for that matter, did a reinterpretation of historical events provide any evidence of social change. Indeed, the effect was that the lower court had effectively (and erroneously) ceded the judge’s primary task of determining how section 121 should be interpreted to an expert. This also, at least to some extent, begs the question of the admissibility of domestic evidence regarding the legal meaning of a statutory provision. That sort of evidentiary shopping led precisely to the very instability in the law that stare decisis is designed to avoid.

The evidence in this case was quite different from the fundamental shift in societal attitudes regarding assisted death between the time of the Rodriguez decision in 1993 and that in Carter in 2015. Carter was not simply an alternative answer to the Rodriguez question, but a fundamental shift in how the court could consider the nature of the competing interests involved.

The Living Tree analogy developed by the courts and the requisite purposive interpretation of the Constitution Act, 1867, taking into account the text of the statute as well as the historical and legislative contexts, did not lead to the conclusion that section 121 prohibited any and all burdens on the passage of goods across provincial boundaries. Incidental encroachments are not prohibited.

Those of us who cut our constitutional teeth on the “pith and substance” doctrine recognize that identifying the principal purpose of a particular subject matter (now the “essence and purpose”) requires one to discern the primary purpose of the legislation. Here it was not to impede trade, but rather was part of a comprehensive scheme to restrict access, thus to enable public supervision of the production, movement, sale and use of alcohol within the province of New Brunswick. We cannot help but wonder, however, whether the financial statements of the monopolistic provincial corporation were part of the evidence before the court.

From a macro perspective, since section 121 did not confer powers, but instead limited powers granted under sections 91 and 92, it is necessary to interpret it so as not to deprive either the federal government or the provincial legislatures of powers granted to them to deal with any situations that might arise, thus avoiding constitutional “hiatuses,” in which neither could act, something that would be a constitutional anathema. An incidental effect that might impinge on bringing goods across provincial boundaries was a far more acceptable outcome in the circumstances.

There was extensive consideration of the principles of federalism, in which the court supported the view that provinces (within a federal state) should be given leeway to “manage the passage of goods while legislating to address particular conditions and priorities within their borders.”

As the court noted, the ability of the province to exercise its oversight regarding alcohol would be undermined if non-corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers. On the other hand, legislation whose primary purpose is to impede cross-border trade cannot be made constitutional by merely slipping it into some broader legislative scheme.

There will be other occasions on which competing federal and provincial interests within a federal system will need to be balanced, but that is hardly surprising and has been a constant feature of Canadian constitutional law. The court can, however, certainly expect to have many of its observations in this case thrown back in its face in future appeals.

Richard Pound is of counsel with Stikeman Elliott LLP.

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