Constitutional challenge set in cross-border beer battle

Interprovincial trade barriers based on politically tainted precedent

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BELLEVILLE, ON Aug 24, 2015/ Troy Media/ – Canadians seem obsessed with the Mike Duffy story these days, deeming it a scandalous cover-up of inappropriate behaviour.

But, starting August 25, an even more scandalous cover-up – one that has gone virtually unnoticed by the public for approximately 94 years – will hit the headlines in a New Brunswick courtroom.

On trial – at least, nominally – is retiree Gerard Comeau, who committed the heinous offence of bringing home 14 cases of beer and some other alcohol from Quebec into New Brunswick back in 2012. (Alcohol is much cheaper in Quebec.)

No sooner did Mr. Comeau cross the border with his bargain booze, than he was stopped by the RCMP. They seized his purchases and fined him $292.50. Mr. Comeau hadn’t known it, but he was breaking New Brunswick law by importing more than 12 pints of beer from another province.

It’s that law, the Liquor Control Act, that is really going on trial starting today, August 25. Mr. Comeau and his lawyers will challenge the constitutionality of a statute that makes quasi-criminals out of thousands of unwitting New Brunswickers every year.

Under Canada’s constitution, adopted in 1867 as the British North America Act, internal trade barriers like this aren’t supposed to exist. Section 121 of the constitution says, “All articles of the growth, produce, or manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Contemporary statements of the Fathers of Confederation, including Sir John A. Macdonald, George Brown and George-Etienne Cartier, demonstrate that an important benefit they expected to gain from confederation would be to “throw down the barriers of trade” and unify a market of four million people.

But half a century later, during the Prohibition era, the federal government enacted legislation that forbade transporting alcoholic beverages from Alberta to Saskatchewan. An Alberta company called Gold Seal Limited, whose business was trading nationwide in alcohol, challenged the law in court.

And, here’s where the scandal comes in. After the Supreme Court of Canada had heard arguments in the case, but before it had rendered its decision, two of the five Supreme Court judges on the case were summoned by the federal Minister of Justice for a meeting. The two judges and the justice minister were old chums; they had all attended the same Jesuit college in Montreal.

Nobody knows exactly what was said at the meeting, but the minister reportedly asked how the court was planning to rule. He naturally wanted them to uphold his government’s law.

His tete-a-tete apparently worked its intended magic. When the Supreme Court announced its decision a few months later, a four-to-one majority (including the two judges who had met with the politician) pronounced the law to be valid, largely because of a hastily passed federal bill (possibly suggested by the judges themselves) retroactively declaring that the defects in the challenged law were rectified. As far as Section 121 of the constitution was concerned, the court threw in the casual opinion that it prohibited only customs duties between provinces; other trade barriers were permissible. A politically-tainted precedent was set.

Nobody knew then about the secret meeting. We know about it now only because one of the Supreme Court judges involved in the Gold Seal case wrote a letter several years later, mentioning it as an example of how political pressure had interfered with judicial independence. Toronto lawyer Ian Blue unearthed and publicized the then 85-year-old letter in his 2010 article On the Rocks; the Gold Seal Case: A Surprising Second Look.

These days, it would be considered outrageous for a cabinet minister to meet privately with judges while they were considering the validity of legislation that the minister wanted upheld. In fact, the Supreme Court called meetings between judges and cabinet ministers “clearly inappropriate” in a 1997 decision, causing the chief justice of the Federal Court to resign.

A cloud of suspicion hangs over the Gold Seal precedent and its strange interpretation of section 121. Prohibition ended decades ago. It’s time to undo the damage done by that politically compromised decision so that Gerard Comeau and others like him can legally engage in interprovincial trade, as the Fathers of Confederation intended.

Karen Selick is the litigation director for the Canadian Constitution Foundation, which is supporting Mr. Comeau’s constitutional challenge.

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