The New Brunswick Provincial Court’s recent decision in R. v. Comeau1 has already been the subject of much commentary.2 The 56-page tome deals with many old chestnuts among constitutional theorists, such as the living tree doctrine, the legislative intent of the “constitutional moment,” economic union as a driver of Confederation, the rule of stare decisis in constitutional cases and principles of judicial independence. Not regular fare for the New Brunswick Provincial Court.
The defendant Comeau, a resident of Tracadie, N.B., had driven nearly 200 kilometers on Oct. 6, 2012, to purchase alcohol in Pointe-à-la-Croix, Que. - 354 bottles of beer and three bottles of liquor to be precise. Fatefully, on the day of his purchase, the Quebec and New Brunswick RCMP detachments were collaborating on a two-day crime reduction initiative to identify and charge individuals who crossed the provincial border with more than five cases of beer. Mr. Comeau was arrested in possession of fifteen cases of beer and charged with a violation of section 134 of New Brunswick’s Liquor Control Act.
The Act prohibits the possession of liquor (“to have or keep liquor”) not purchased from the NB Liquor Corporation, but exempts purchases from a liquor commission outside of the province not in excess of one bottle of liquor or “beer not in excess of twelve pints.” A subsequent policy proposed by the Canadian Association of Liquor Jurisdictions in June 2011, and adopted by NB Liquor in October, relaxed the legislated standard and allowed for the possession of “reasonable quantities of beverage alcohol, obtained elsewhere in Canada for personal use” without penalty. The policy defines “reasonable quantities” as 3L of spirits, 9L of wine and 24L of beer. Unfortunately, even the latitude of this newly adopted policy provided no relief to Mr. Comeau.
At the hearing Mr. Comeau defended himself as other New Brunswickers have attempted to do in the past3 - by arguing that section 134 of the Liquor Control Act was ultra vires the province and in violation of s.121 of the Constitution Act, 1867, tramping on its promise of free trade among the provinces. Remarkably, this time the defendant won.
The outcome is remarkable because the legal proposition on which the defence relied had been considered and rejected previously by the Supreme Court of Canada, in a decision dating back almost a hundred years. In Gold Seal Ltd. v. Alberta (A.G.) [1921] S.C.J. No. 43, Duff J., held that the real object of section 121 of the Constitution was to prevent provinces from imposing custom duties affecting interprovincial trade, nothing more. In Comeau the N.B. Provincial Court held Gold Seal was wrongly decided.
Leblanc J. carefully outlined the common law rules on stare decisis set out in Canada (A.G.) v. Bedford [2013] S.C.C. 72 and found that he should only revisit the Gold Seal case if he was satisfied that a new legal issue was raised, or if there was a significant change in the circumstances or evidence “that fundamentally shifts the parameters of the debate.” Although he found there was no new legal issue or significant change in circumstances, Leblanc J. did find there was new evidence in relation to the Gold Seal case which provided grounds for reconsidering the decision.
In Gold Seal the appellant was an importer and exporter of wine, spirits and malt liquors. In early February 1921 carriers started refusing to ship its goods out of Alberta as a result of the proclamation of the Canada Temperance Act. Gold Seal argued that the Canada Temperance Act had been improperly proclaimed in Alberta. Between the hearing of the case in the Supreme Court in May 1921, and the issuance of the court’s decision later that fall, Parliament passed the Proclamation Validation Act, S.C. 1921 (11 & 12 Geo. V) c. 20, to cure any defect. Following supplementary briefs, the court released its judgment on October 18, 1921. The court held that the subsequent Bill had cured any defect in proclamation of the impugned statute and that the challenge to the statute should fail.
In Comeau the defence alleged that a 1924 letter by Chief Justice Duff to Viscount Haldane, of the Privy Council in London, complained of inappropriate conversations between then Minister of Justice Charles Doherty and two members of the Supreme Court. It is implied that the Minister was informed of the probable outcome of the Gold Seal case and therefore expedited the Proclamation Validation Act in Parliament to ensure the Alberta’s success in the matter. Leblanc J. discussed this new evidence at length in his decision. He explored the possible consequences of such a finding with reference to Supreme Court jurisprudence on judicial independence. Such evidence would surely fundamentally shift the parameters of the debate. However, he found in the end that he could give the letter no weight or consideration in arriving at his conclusion.
Instead Leblanc J. relied on new Crown and defence expert evidence in relation to the historical context and the constitutional moment leading to the adoption of section 121 to ground his decision. Relying on that expert testimony the court found that section 121 of the Constitution Act had to prohibit both tariff and non-tariff trade barriers and therefore dismissed all charges against Mr. Comeau.
Appellate review of the Provincial Court decision, either by the Court of Queen’s Bench, Court of Appeal or Supreme Court of Canada4, will require careful review of the rule of stare decisis. It is suggested that if the court had accepted the evidence of judicial interference in Gold Seal, then exempting the rule of stare decisis on evidentiary grounds might be more easily justified. Some commentators have heralded the Comeau decision as a victory for originalism in Canadian constitutional law theory, landing a blow to the progressive approach to constitutional interpretation.5 Leblanc, J. however clearly intended no such thing.
The case for reconsidering Gold Seal may perhaps have been better made out by reference to a change in circumstances. The case for free trade has not weakened, but only grown stronger in the years since 1921, the case for temperance on the other hand has faded considerably. The outcome in Gold Seal is no doubt best explained with reference to the social and political upheaval caused by the temperance movement, circumstances which were particularly pressing and politically delicate at the time of the 1921 Supreme Court decision, but which have seriously abated in subsequent years. The 2011 resolution of the CALJ on transportation of liquor between provinces for personal use is certainly one indicator of changed circumstances.
The Provincial Court might also have considered that literature on section 121 has now called the decision in Gold Seal seriously into question.6 Greater clarity with respect to the historical record, both at the time of confederation and at the time of the Gold Seal appeal, may have been placed in evidence before the court in Comeau but this should not be construed as an opportunity to revisit Gold Seal on evidentiary grounds. Rather, they point to a change in circumstance which makes room for a reconsideration of the case. These circumstances, this attention to our constitutional roots as it were, create the needed space for the constitution to breathe and evolve and can be invoked to allow lower courts to fully assume their role as defenders of the constitution.
Peter Russell has defined judicial activism as “judicial vigour in enforcing constitutional limitations on the other branches of government and a readiness to veto the policies of those branches of government on constitutional grounds.”7 At times that same analytical rigour must be applied with certain introspection to the judicial branch itself. All courts are at times required to do so. In the post-Charter era, many critics have come forward to claim that our courts are too activist and that Charter analysis has wrested too much control from Parliament and placed too much authority in the Supreme Court of Canada.8
In Comeau, Leblanc J. came to his conclusions with trepidation but resolution. Many will salute this decision as an opportunity to redress a historic error with respect to one of the fundamental tenets of Confederation and to better align the original intent of the Constitution Act, 1867, with the current exigencies of interprovincial trade and contemporary mores. Regardless of the outcome, however, the decision can be hailed as welcome proof that judicial vigour in defending the constitution is not the sole preserve of appellate courts and not limited to Charter jurisprudence.
Christian Whalen is a senior legal counsel with the Province of New Brunswick, Office of the Child and Youth Advocate
Footnotes
1 2016 NBPC 3
2 Honickman, A. A Marriage made in Britain: Section 121 and the Division of Powers, October 24, 2016 http://canliiconnects.org/en/commentaries/43804; Advocate Daily, Ruling may bring sweeping change to laws around wine, liquor sales, June 13, 2016, http://canliiconnects.org/en/commentaries/42221; Mancini, M., The Comeau Decision is a Welcome Example of Serious Doctrinal Analysis in Advocates for the Rule of Law Aug., 3, 2016, http://www.ruleoflaw.ca/the-comeau-decision-is-a-welcome-example-of-serious-doctrinal-analysis/; Lavoie, M., R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union (October 16, 2016) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2840845
3 R. v. Gautreau [1978] NBJ no. 107
4 The New Brunswick Court of Appeal considered a motion pursuant to subsection 116 (3) of the Provincial Offences Procedures Act seeking leave to appeal the matter directly to that Court. The motion was heard in late October 2016 and the Court summarily dismissed the matter. Subsequently, on November 28, 2016, the Provincial Public Prosecutions Service indicated that the Crown will seek leave to appeal the matter on its merits to the Supreme Court of Canada.
5 Mancini, supra, note 2.
6 Blue, I., Free Trade Within Canada: Say Goodbye to Gold Seal, Canada’s Founding Ideas Series, MacDonald Laurier Institute for Public Policy, May 2011, http://www.macdonaldlaurier.ca/files/pdf/Ian-Blue-Section-121-Free-Trade-within-Canada.pdf
7 Peter H. Russell, F.L. Morton and Rainer Knopff, Federalism and the Charter: Leading Constitutional Decisions. (Ottawa: Carleton University Press, 1989). 19
8 MacFarlane, E., The Supreme Court Of Canada And The Judicial Role: An Historical Institutionalist Account, Queens University PhD Thesis, 2009, 306 pp. http://www.collectionscanada.gc.ca/obj/thesescanada/vol2/OKQ/TC-OKQ-5313.pdf. At p. 69 and ff the author carefully demonstrates how the “activism” of the Supreme Court springs initially not from the Charter’s adoption, but rather from the Court’s own formal conservative past as an intermediary colonial appellate court and from the late 1960s and early 1970s reforms to its statute and composition. As Justice Minister and then Prime Minister, Pierre Trudeau helped the Court to gain control over its docket through select reforms to its constituent statute, allowing it to select only cases of national significance and also significantly improved the strength of the Court starting with the appointment of Bora Laskin in 1970.