AuthorFroc, Kerri A.
PositionCanada, United Kingdom


Canadian beer enthusiasts and originalists make unlikely fellow travellers. However, both groups eagerly awaited and were disappointed by the Supreme Court of Canada's decision in R v Comeau. (1) The case came to court after Gerard Comeau was stopped and charged by the RCMP in a "sting" operation aimed at New Brunswickers bringing cheaper alcohol from Quebec across the provincial border to be enjoyed at home. (2) Eschewing Gerard Comeau's plea to "Free the Beer", the Court upheld as constitutional provisions in New Brunswick's Liquor Control Act, which made it an offence to possess liquor in excess of the permitted amount not purchased from the New Brunswick Liquor Corporation. (3)

The Court's ruling was based on section 121 of the Constitution Act, 1867, which states that "[a]ll articles of Growth, Produce, or Manufacture of any one of the Provinces ... be admitted free into each of the other Provinces." (4) In the Court's view, this meant only that provinces could not impose tariffs on goods from another province. It did not apply to non-tariff barriers, like New Brunswick's monopoly on liquor sales in favour of its Crown corporation. In so deciding, the Court upheld the interpretation set out in a nearly 100-year-old precedent, Gold Seal Ltd v Attorney-General for the Province of Alberta, (5) albeit amending its interpretation of section 121 to prohibit both tariffs and "tariff-like" barriers. The Supreme Court also criticized the trial judge's failure to respect stare decisis in overturning this precedent. The trial judge did so based on new expert evidence of the historical context surrounding the drafting of section 121.

For beer lovers, the only positive outcome to the decision was that it inspired an Ottawa and a Quebec brewery to launch a new style of beer, a Brut IPA, named after the claimant. (6) However, those hoping that the Court would update its outdated conception of originalism or at the least, adopt a more transparent and principled approach to the use of historical evidence in constitutional interpretation, had little reason to open bottles of Gerard Comeau in celebration.

In Comeau, the Court attempted to foreclose reconsideration of precedent based on research advancements in constitutional history. It introduced new limitations on its previously broad doctrine of stare decisis pronounced in Canada (Attorney General) v Bedford (7) and Canada (Attorney General) v Carter, (8) which seem aimed at stopping any attempt to use originalist methodology to challenge old precedents that misconstrued or disregarded legislative history surrounding the framing and entrenchment of constitutional provisions.

But perhaps more significantly, the Court has doubled down on its previous inconsistent approach to the use of history in constitutional interpretation, using the rationalization of purposive, "living tree constitutionalism." (9) Under "living tree" doctrine, interpreters are permitted to change the meaning of the constitutional text over time as society changes to avoid "frozen rights" based on the original intent of the drafters. The excessive discretion that living tree allows meant that the Court in Comeau was able to employ historical evidence in an arbitrary and haphazard fashion, even as it criticized the trial judge's approach. (10) Its analysis of the historical context and original meaning of section 121 displays some the worst qualities of "law office history" (11) that has been criticized, ironically, by opponents to originalism. These qualities include a "results-based" orientation to the selection and weight of the evidence.

Our contention is that the Court need not have taken this tack to support its interpretation of section 121 and save Canada's complex matrix of provincial protections for intra--and interprovincial trade arrangements. A principled approach to history in constitutional interpretation, such as that advocated by "new originalists", would have led the Court to the same result. Using readily available historical evidence from the record and secondary sources consulted by the experts in the case, we will show that the trial judge was right to revisit Gold Seal but wrong to have uncritically accepted the evidence of the expert witness for Comeau that "admitted free" meant free from any and all barriers to interprovincial trade. In fact, a more accurate analysis of the original meaning of section 121, based upon the text and historical context, demonstrates that "admitted free" means free from interprovincial tariffs and border measures only.

This came as a surprise to Kerri Froc, who initially found the expert evidence admitted by the trial judge compelling on its face for a broader, originalist interpretation of "admitted free" in section 121 than the narrower perspective adopted in the Court's previous interpretation of section 121 in Gold Seal. (12) Judge LeBlanc, the Provincial Court trial judge in Comeau, took notice of the fact that none of the facta filed with the Supreme Court in Gold Seal contained argument on section 121; the case itself contained little interpretation, no citation of authority (jurisprudential or academic), and no serious consideration of history. (13) Stare decisis notwithstanding, it was a seriously flawed precedent.

However, Michael Marin's research regarding the text and history of Confederation debates presents a more persuasive interpretation that supports the outcome in Comeau. His analysis of the original meaning of "admitted free" places section 121 in the context of the broader financial arrangements between the federal government and the provinces. In particular, the federal government assumed jurisdiction over indirect taxation and a muscular set of economic powers that permitted economic integration and distribution of Canada's wealth on a nondiscriminatory basis. In exchange, the provinces would receive subsidies from the federal government and neither level of government would be permitted to impose interprovincial tariffs. Only this latter aspect of the financial arrangement is enshrined in section 121.

In the first part of this article, we will provide a detailed critique of the Court's decision in Comeau, both in terms of its attempts to limit its prior expansive dicta on overturning stare decisis to thwart future originalist arguments and its methodology to ascertain section 121's historical context. In the second part of this article, we will summarize for readers the tenets of "new originalism." New originalism bears little resemblance to the Court's sub rosa caricature of "old originalism" that relies on original intent. Bradley Miller, Grant Huscroft (now justices of the Ontario Court of Appeal), Benjamin Oliphant, Leonid Sirota, Asher Honickman, as well as Froc are part of a growing body of Canadian scholars advocating a new Canadian originalism. (14) New originalist theories are grounded in original meaning (an assessment of the semantic meaning--or linguistic usage--of the terms at the time of framing and ratification), rather than the psychological states of those who drafted and ratified a constitutional provision. They are also consistent with a more principled "purposive" methodology that regards a constitutional provision's legislative history as important evidence of meaning. In the third part, we will provide a textually and historically grounded analysis of the original meaning of section 121 of the Constitution Act, 1867. We will thus demonstrate that it was unnecessary for the Court to use its version of "living tree" interpretation misapplying the historical evidence to arrive at its result.

  1. Comeau--The Court's Tactical Interpretive Approach to "Save" Federalism

    The beginning of the Court's decision in Comeau (published per curiam) hints that more than principle will be driving its analysis. It remarked that interpreting "admitted free" to mean an absence of both tariff and non-tariff barriers would mean undoing complex federal-provincial institutional relationships such as "[agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders". (15) The judgment repeats in similar language throughout these dire predictions about the future of such schemes should the trial judge's historically driven interpretation of section 121 stand. (16) In the past, the Supreme Court has not shied away from overturning conventional wisdom on constitutionality, even with dramatic results. In addition to more recent decisions setting firm time lines for criminal trials, as well as overturning decades-old precedent concerning the constitutionality of prostitution and assisted suicide prohibitions, one could also look to the Manitoba Language Reference, in which the Court declared unconstitutional Manitoba's entire body of unilingual laws (based on a historical reading of section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867). (17) However, the spectre both of the Court undoing complex inter-provincial trade policy, as well as upending the primacy of the living tree constitutionalism (in principle if not always in practice) supported a trajectory towards its interpretation of section 121. This was the one established by Gold Seal and extended only slightly to include "tariff-like" barriers, following a small number of later judicial opinions. (18) Below, we identify the Court's strategic moves straying from doctrine and coherent interpretive methodology that lead to our conclusion.

    1. The Anti-Originalism Subtext Behind the Revision of Stare Decisis Doctrine

      In its "Judicial History" commentary, the Court referred to Judge LeBlanc's acceptance "without hesitation" of expert evidence "about the intentions of the drafters" and "minds of the drafters" as underlying his rationale for departing from the Gold Seal...

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