The Comeau decision is a ‘big deal,’ as it could lead to free trade in all of Canada

Posted on May 3, 2016 in Policy Context – Full Comment
May 2, 2016.   Marni Soupcoff

I’m sorry, but this is no time for panic; it’s a time for celebration and hope, and, most fittingly, raising a glass.

Reporters keep asking me whether I think Friday’s ground-breaking court ruling, which threw out the charges against Gerard Comeau for bringing Quebec liquor into New Brunswick, will result in a free-for-all. Will New Brunswickers now haul as much beer and wine as their hearts desire from the rest of the country into their home province? The answer is, of course, that they will — and that’s exactly what the Fathers of Confederation would have wanted.

But most Canadians aren’t interested in precisely how many more six packs will now be flowing through New Brunswick’s borders. They want to know what the Comeau decision means for them. They want to know whether there will be a lasting and far-reaching impact from one brave Maritimer’s constitutional challenge. And so, as the executive director of the Canadian Constitution Foundation (CCF), the organization that supported Comeau’s case, I’d like to answer that.

Canada is rife with protectionist laws and regulations that prevent the free flow of goods from one province to another. These laws affect Canadians’ ability to buy and sell milk, chickens, eggs, cheese and many other things, including some that neither you nor I have ever even thought about. And that is the beauty of this decision. It will open up a national market in everything. Yes, the CCF, Comeau and Comeau’s pro bono defence lawyers Mikael Bernard, Arnold Schwisberg and Ian Blue can all be proud that we have “freed the beer.” But we’ve done more than that — we’ve revived the idea that Canada should have free trade within its borders, which is what the framers of our Constitution intended. That means that the Supreme Court will likely have to revisit the constitutionality of this country’s marketing boards and other internal trade restrictions. In other words, this is a big deal.

That is why I am so energized by the Comeau decision. Never mind the refreshing legal precedent it sets that our Constitution actually means exactly what it says. Set aside the satisfaction of putting an end to absurd RCMP “sting” operations designed to catch responsible grownups whose only offence is legally buying wine or beer in Quebec and bringing it home to New Brunswick. What excites me is the wider array of choices and lower prices for just about any Canadian-made product, which consumers can potentially look forward to.

For almost a century now, our courts have been following the precedent of a politically tainted, wrongly decided Supreme Court decision from the prohibition era called Gold Seal, which interpreted the constitutional provision protecting interprovincial free trade with an absurd narrowness. Adherence to that decision is how we got into this protectionist mess in the first place. But it is a testament to our legal system that it’s never too late to correct a gross error and see that justice is served.

That’s exactly what the New Brunswick court has done in the Comeau case. Just as it would have been easier for Gerard Comeau to pay a $292 fine rather than stand on principle and fight for his rights, it would have been easier for the court to have followed Gold Seal. As the court itself put it, “The path of least resistance would mandate that the Court simply follow the Gold Seal ruling and allow for the continuance of existing structures and schemes which have been in place for nearly a century.”

Instead, both Comeau and the provincial court chose truth and its attendant difficulties over an easy ride. In the court’s case, that meant reviving a provision of our Constitution. “I find that section 121 of the Constitution Act, 1867 has not fallen into desuetude,” the court wrote. “Its disuse or neglect has arisen as a result of an unfounded judicial interpretation which effects have continued for nearly a century.” Those effects will continue no more.

National Post

Marni Soupcoff is executive director of the Canadian Constitution Foundation, a legal charity that supported Gerard Comeau’s constitutional challenge.

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