Reactions to the Comeau "free the beer" ruling

By Yves Faguy April 25, 201825 April 2018

Reactions to the Comeau

Predictably, the Supreme Court’s ruling in Comeau has been greeted with a good measure of disappointment. Emmett Macfarlane was among the first to set the tone:

It’s the pitch-perfect case for why judicial deference to a legislature can still be inappropriately political, even activist. And as a result of this politicized timidity, we get a resounding absurdity. As economist Mike Moffatt tweeted, “With today’s SCC decision, there are fewer trade barriers for Ontario companies to sell to Michigan than to Quebec. This is a problem.”

It’s an absurdity of constitutional interpretation that the Court routinely allows in the context of federalism but would never countenance in other areas of law. But mostly, it’s just absurd.

Asher Honickman calls the unanimous ruling “bizarre:”

The Comeau decision is a basket of contradictions. The Court emphasized the importance of stare decisis, but it overruled the governing precedent without saying so. It purported to ground its analysis, in part, on the text and historical context of s.121, but it showed little regard for either. The Court explained that this is not a case to which the “living tree” doctrine applies, but, as Professor Leonid Sirota has argued, its reasoning is ultimately living constitutionalist, betraying a deep concern for the government’s ability to maintain sufficient economic regulations.

In many ways, Comeau is a casualty of the confused doctrine that has recently preceded it. Without Bedford‘s radical departure from vertical stare decisis, the Court could have crafted a more internally coherent rule. Without the Court’s ever-evolving method of constitutional interpretation (which ranges from everything between original intentism to post-living tree progressivism), the Court could have assessed s.121 simply in accordance with its ordinary meaning and long-established principles of statutory interpretation. And without the relatively recent (and textually-problematic) obsession with “co-operative federalism,” the Court could have stayed true to the foundational premise of Canadian federalist doctrine: that the powers of each order of government are inherently limited.

Léonid Sirota also dislikes the ruling, but takes issues with critics, such as Macfarlane and Craig Forcese, who would have liked to see the top court evolve its thinking:

Yet regrettably, many of Comeau‘s critics too seem to be taking the wrong lesson from it. They want the Supreme Court to remake Canadian federalism in the name of the “living tree” or of the desire which, Andrew Potter tells us, Canadians feel for an ever closer union. To ask the Court to remake the law in this way is only to encourage further mistakes in the future. To be sure, some corrections are in order, mainly in the realm of doctrines operating at the boundary of federal and provincial jurisdictions. But they would involve, in Mr. Honickman’s words, “getting back to the constitutional division of powers” laid down in 1867 ― not updates in the service of economic policy or nation-building. If such updates are necessary, they must be carried out by politicians following the procedures provided for constitutional amendment, not judges. What Comeau teaches us is not that our federalism jurisprudence as a whole is hidebound or perverse, but that the Supreme Court should stop playing constitution-maker’s apprentice and stick to enforcing the law.

Yves Boisvert took a more charitable view toward the decision:

One can criticize the Court for interpreting the New Brunswick law while accepting a little too easily its stated goals dating back to the  1920s. Today, provincial state monopolies in Canada primarily serve as tax collectors. To prohibit citizens from buying alcohol elsewhere is clearly a protectionist measure whose aim it is to protect that tax revenue. 

And yet there is no doubt that exposing all provincial laws that have negative effects on interprovincial trade to a challenge would have led to constitutional chaos of some sort, invited multiple challenges and pushed the country toward more uniformity. The Court clearly expressed its concern about preserving the existing balance of constitutional powers.

The ruling reinforces the autonomy of those provincial powers, and to that we should raise a glass. (Our translation)

Philippe Lagassé also sees a silver lining:

A third possibility is that the Court is subtly telling us that we can’t avoid constitutional negotiations forever –that these rulings are meant to serve as a forcing function. Seen in this way, the SCC is saying that it won’t make the changes that should be properly negotiated between governments. Paradoxically, the Court may be using its power as a status quo player to force Ottawa and the provinces to accept that they will need to reopen the constitution if they want to address Canada’s constitutional deficiencies.

If this is what the SCC is doing, then there’s something valuable about their approach.


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