As it turned out, Beverley McLachlin’s final hearing as the Chief Justice of the Supreme Court of Canada was a headline-grabber. Gerard Comeau, fined $292.50 by the province of New Brunswick for driving cases of beer from Quebec to his home province, is seeking to upend nearly a century of established Canadian law and have the court take a more expansive view of the language in the Constitution that’s supposed to make interprovincial trade barriers illegal.
Comeau’s case was first heard in 2015 by a New Brunswick judge, who found in his favour. At issue is section 121 of the British North America Act, which says that any goods made in one province shall be “admitted free into each of the other Provinces.” Ever since the key case that defined s. 121 in 1922, courts have read that requirement narrowly: essentially, Ontario isn’t allowed to put checkpoints up at the Manitoba and Quebec border to levy tariffs against goods made in Canada, but otherwise provinces are free to pursue all kinds of “non-tariff barriers.”
It’s that legality that allows the LCBO to stop Ontarians from “importing” wine from British Columbia, and similar prohibitions buttress Canada’s dairy and poultry supply-management system. (That’s why the Dairy Farmers were at there at the Supreme Court, too, arguing in favour of the status quo.) And the LCBO, in its capacity as the officially sanctioned pot retailer when marijuana becomes legal on July 1, will be allowed to keep B.C. bud (the legal stuff, at least) out of Ontario on the same grounds.
In short, while Comeau’s immediate case is about a few hundred dollars in provincial fines, the implications of finding in his favour are substantial and could potentially upend nearly a century’s worth of law and policy in this country.
The federal government and the provinces do recognize that interprovincial trade barriers are a problem, even signing an agreement of sorts this year — the Canadian Free Trade Agreement — which puts some muscle behind the words of s. 121 150 years after Sir John A. MacDonald and the other Canadian founders drafted it. If elected governments are moving on this file, why get the courts involved?
And yet, while lawyers were arguing in Ottawa, the provinces of Saskatchewan and Alberta were arguing over whose work vehicles would be allowed on construction sites in their respective provinces — so clearly, neither the Canadian Free Trade Agreement nor any of the other trade agreements provinces have signed over the years are keeping the provinces from engaging in knucklehead stuff.
Still, the most likely outcome is that the court will largely leave the country’s laws on this subject alone, meaning Comeau will have to pay his fine after all. Even if the court decides that the Constitution’s prohibition on interprovincial trade barriers needs to be reinterpreted and modernized, there’s no guarantee that the court will choose the more expansive reading of s. 121 that activists want.
One of the issues that justices, including McLachlin, focused on is what kind of test the court would impose on interprovincial trade barriers to decide whether they were allowable under the Constitution or not. These kinds of tests are common at the Supreme Court — the most common, called the Oakes test, guides the court’s decisions on upholding Charter rights — and it’s an obvious question for a court being asked to throw out decades of law: What would we replace this with?
Not all tests are created equal. Comeau’s lawyer, Ian Blue of Gardiner Roberts, urged the court to interpret s. 121 as broadly and powerfully as possible, stating in his factum that “(g)iven anything short of a clear direction to dismantle their trade barriers, governments will do everything in their power to maintain them.” Others called for the court to, effectively, give the provinces plenty of leeway even if they are subjected to new tests.
Should a province be allowed to justify an interprovincial trade barrier because it makes a pile of money from liquor sales — money that it could then spend on schools and hospitals? Should a trade barrier be deemed acceptable if it preserves local jobs? That’s a clear enough public purpose, and it’s not the court’s fault that governments always use local jobs to justify literally every economic intervention.
In short, even if the court updates its interpretation of s. 121, it will have the grounds to choose a minimally disruptive path forward. Ontarians probably won’t be drinking more Okanagan wines any time soon.
McLachlin, in her farewell to the court, joked about the case as she spoke proudly about the major changes to Canadian law she had seen during her tenure as Chief Justice.
“My greatest gratitude goes to having had the good fortune to have the life I’ve had, to serve on this court during this particular time, when Canadian law has grown so greatly — don’t get your hopes up, respondents. That’s a general statement.”
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