Supreme Court

Constitutional Law

Constitutional law


Section 121 of Constitution Act, 1867 does not impose absolute free trade across Canada

Admitted free. Accused travelled from New Brunswick to purchase cheaper alcohol, amounting to 15 cases of beer and 3 bottles of hard liquor, in Quebec. Accused was acquitted of offence under s. 134(b) of Liquor Control Act which barred possession of liquor, beyond limited quantity, that was not purchased from New Brunswick liquor commission. Trial judge found Supreme Court of Canada precedent held that s. 121 of Constitution Act, 1867, providing that products of any province must be “admitted free” into other provinces, did nothing more than protect movement of Canadian goods against interprovincial custom duties or charges. Trial judge found evidence of historical expert established that “admitted free” had broader and more comprehensive meaning than “admitted free of duty”. Trial judge found nothing in wording of provision support inference that meaning of term was restricted to “admitted free of duty” but rather supported opposite view that it meant free trade, as trade barriers with United States were uppermost in minds of politicians during constitutional moment and British policy favoured free trade. Trial judge found intent of drafters of Constitution Act, 1867 was to replace loss of free trade American market with free trade Canadian market. Trial judge found statements by Fathers of Confederation were consistent with intent to form strong and harmonious economic union based on free trade, without allowing non-tariff barriers to be imposed. Trial judge found contrary to Crown’s expert’s view that words “admitted free into” suggested border crossing where customs were levied, nothing in words “admitted free into” could possibly lead to very strict interpretation confining its meaning to prohibiting customs. Trial judge found robust interpretation of s. 121 of Constitution Act, 1867 would create conflict with exercise of provincial powers and would dismantle regime in place involving governments’ multitude of restrictive measures and policies imposing interprovincial trade barriers. Trial judge found important consideration of original purpose of provision at issue should not be displaced merely by notions of what amounted to request for accommodation based on long-standing misinterpretation of intent of Fathers of Confederation. Trial judge found narrow and strict interpretation placed upon s. 121 of Constitution Act, 1867 in Supreme Court of Canada was unwarranted and unfounded, and it had shaped all subsequent cases dealing with provision. Section 134(b) of Act constituted trade barrier violating s. 121 of Constitution Act, 1867 and was of no force and effect as against accused. Crown appealed. Appeal dismissed. Section 121 of Constitution Act, 1867 does not impose absolute free trade across Canada, and does not prohibit governments from adopting laws and regulatory schemes directed to other goals that have incidental effects on passage of goods across provincial borders. Federalism principle and purposive approach where provinces could legislate within their jurisdiction even where such laws may incidentally limit passage of goods over provincial borders. Provincial law functioned like tariff at extreme end of spectrum, however, text and effects were aligned and suggested primary purpose of s. 134(b) of Act was not to impede trade, rather to restrict access to any non-corporation liquor. Broader legislative scheme involved New Brunswick’s capacity to regulate how liquor is managed within province and enable public supervision of production, movement, sale, and use of alcohol within New Brunswick.

R. v. Comeau (2018), 2018 CarswellNB 124, 2018 CarswellNB 125, 2018 SCC 15, 2018 CSC 15, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNB 445, 2016 CarswellNB 446, M.E.L. Larlee J.A. (N.B. C.A.).

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