R v Comeau

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."[12] Upon learning of his victory, Comeau said:

The way I look at it, I'm a Canadian citizen. I don't see any reason why I can't go buy merchandise anywhere in this country and bring it home. You can buy anything else like cars, clothes, everything. Except for beer.[8]

The local Crown Attorney sought leave to appeal the decision directly to the New Brunswick Court of Appeal,[lower-alpha 2][13] which summarily dismissed the application in October 2016.[14] Leave to appeal was granted by the Supreme Court of Canada in May 2017,[15][16] 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."[17]

In addition to Comeau and the Attorney General of New Brunswick, 24 interveners were also heard,[lower-alpha 3] 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:[7]

• New Brunswick argued that Gold Seal should not be discarded, but rather reinterpreted to hold that laws that directly discriminate against interprovincial trade would only be enforceable if they were necessary to meet a "significant, non-protectionist objective."
• Many argued in favour of an "essence and purpose test" similar to what had been proposed by Rand J in 1958, where he believed that s. 121 prohibited any trade barrier (tariff or non-tariff) which restricted or limited "the free flow of commerce across the Dominion."[18]
• The Consumers Council of Canada proposed that any law relying on location, either directly or by proxy, to discriminate against interprovincial trade would be presumptively invalid, but such presumption could be overruled if the law was proportionate and was necessary to achieve a non-protectionist objective.
• The Canadian Chamber of Commerce argued for a "proportionality test", where consideration would be given to whether a legitimate public interest could be achieved by a measure with lesser impact on interprovincial trade.
• Canada's National Brewers argued for a two-step "discrimination test", incorporating elements of the United States Supreme Court's ruling in Granholm v. Heald[19] together with an analysis similar to what the Oakes test[20] employs in Charter jurisprudence.
• Comeau countered these arguments, by asserting that such middle ground positions would only serve to maintain the status quo, and that "any restriction on the free flow of Canadian goods" related to provincial boundaries is prohibited under s. 121.

The decision was immediately attacked as being logically inconsistent and a "basket of contradictions",[39] and upholding "the strange and growth-defying ability of provinces to restrict inter-provincial trade."[40] 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."[41]

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."[39] In addition, Comeau was considered to be "legally wrong, historically flawed, metaphysically rotten and destructive," and "post-truth jurisprudence."[42] 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.[43] 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.[44][45][46]

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?"[37] 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."[47] 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."[48]

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,"[49] 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."[50] 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.[51]

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.[52] 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."[53]

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.[54] 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."[55]

Other commentators were more devastating in their assessment of Comeau:

• The Court's attempt to distinguish its treatment of stare decisis was viewed as an arbitrary decision, in part to grapple with the genie in the bottle it had released in Bedford and Carter. While the trial judge may have overreached in accepting historical evidence as to the interpretation of s. 121 (and thus breaching the Court's ruling in R v Mohan), "there is no principled basis to allow lower courts to overturn the decisions of higher courts where the trier of fact determines that the 'social and factual landscape' has changed, but not where the impugned decision is demonstrated to be incorrect."[39]
• The approach taken as to statutory interpretation was also viewed to be questionable, as there was no attempt to conduct a detailed textual analysis, there was a failure to interpret what the phrase "admitted free" was intended to mean, and the interpretation eventually employed leads to the absurd conclusion that the Fathers of Confederation "consciously included a provision that they intended to have no substantive meaning."[39]
• The "exhaustiveness doctrine" (devised by the Court in Reference Re Same-Sex Marriage) was misapplied in this case, in holding that "s. 121 must be interpreted in a way that does not deprive Parliament and provincial legislatures of the powers granted to them to deal effectively with problems that arise."[56] Same-Sex Marriage actually held that "there is no topic that cannot be legislated upon, though the particulars of such legislation may be limited by, for instance, the Charter."[57][39]
• The Court's pro-regulatory bias (noted at par. 3 and 51) affected its analysis of the nature of federalism, and "doing so is all the easier if historical evidence can be treated as less significant and worthy of deference than equivalent social scientific evidence, twisted, or even ignored."[48]
• The approach to identifying and interpreting the issues raised in Comeau was also questioned. While Canadian constitutional jurisprudence can generally be classified as issues of (1) interpreting the heads of power assigned to each of the levels of government; (2) the drawing of boundaries between such powers; and (3) the general implications arising from applying the recently devised doctrine of cooperative federalism, the Court mistakenly analyzed Comeau under the third category, where it should have more properly done so under the first.[58]