Selected responses to R v Comeau

By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Asper Centre at the Supreme Court of Canada Twice Next Month

 

The Asper Centre will be at the Supreme Court of Canada (SCC) as an intervener in two separate cases next month: Gillian Frank v Attorney General of Canada and Spencer Dean Bird v Her Majesty the Queen.

First up on March 16, 2018 is our intervention in Bird, an important case about prisoners’ rights in Canada.  In this case, the appellant was sentenced to a penitentiary term followed by a period of long-term supervision. The Parole Board determined that this supervision would begin with the appellant residing at a community correctional centre. Upon completing his penitentiary term, the appellant arrived to the designated correctional centre to commence the period of long-term supervision but soon left. He was apprehended and charged with failure to comply with the conditions of his long-term supervision. He argued that the residency requirement was unlawful. The trial judge agreed, finding that his being forced to reside in penal institution after completion of his prison term violated his s. 7 Charter rights. The Court of Appeal allowed the appeal, ruling that the trial judge erred in permitting the appellant to collaterally attack the residency requirement.

The Asper Centre factum argues, with regard to the proper application of the collateral attack doctrine, that the Maybrun framework should consider constitutional and access to justice issues. Our factum can be found here.

Less than a week later, on March 21, 2018, the Asper Centre will be intervening in Frank, a case focused on the voting rights of Canadians residing outside of Canada. In Frank, the applicants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

The Asper Centre factum addresses the “social contract” argument that has been used to support revoking a Canadian citizen’s right to vote if they do not live in Canada. Our factum can be found here.

 

 

Asper Centre’s fireside chat delves into the future of Charter litigation in Canada

Asper Centre Fireside Chat with David Asper and Raj Anand

Should a government pay for its citizens to challenge the constitutionality of that government’s laws?  How reliable is a government’s commitment to provide this kind of funding?  More generally, is constitutional litigation the best way to protect Canadians’ constitutional rights?

On a cold November evening, the David Asper Centre for Constitutional Rights convened a fireside discussion of these questions in the Jackman Law Building.  The discussion featured alumni Raj Anand, LLB 1978, a prominent constitutional litigator and bencher of the Law Society of Upper Canada, and David Asper, LLM 2007, the Centre’s founder and a successful criminal/constitutional litigator.  (Most notably, Asper represented David Milgaard in overturning Milgaard’s wrongful conviction.)

Cheryl Milne, executive director of the Asper Centre, chaired the discussion, the focus of which was the Court Challenges Program (“CCP”).  Created in 1978, the CCP funded legal challenges to laws offending equality and official language minority rights guaranteed under the Canadian constitution, including the Charter of Rights and Freedom.  The program has funded more than 1,200 cases, but has also been cancelled, twice, by governments averse to funding challenges to their own laws.  The current Liberal government plans to revive the CCP, and is undertaking consultations to this end.

The discussion was a study in contrasting viewpoints: Anand’s more conservative (reflecting his long experience as a member of the CCP’s Equality Rights Panel), and Asper’s more radical.  Asper was adamant, for example, that the CCP’s strength comes from its independence.  “It’s irresistible, in my view, that when you have an organization whose objective is to challenge the government, sooner or later the government will defund you—whatever the stripe.”  Anand replied that perfect independence is impossible: “Ultimately, public money has to be carefully safeguarded and spent pursuant to government policies. So, like it or not, there are always public servants that have a direct and indirect impact on the program.”

Asper was unmoved, suggesting at one point that the CCP will always be “a sitting duck for government.”

While both lamented the CCP’s suspension by the Conservative government in 2006, they fastened upon different effects as being most significant.  Anand noted the deleterious effect on s. 15 of the Charter (equality rights) jurisprudence because of fewer, and more poorly supported, cases being brought to trial.  (“The kinds of arguments that were brought… became very weak.”)  Asper characterized the CCP’s suspension as anti-constitutional: “It sent a signal to Canadians that we were somehow less willing to get into the risk of rights litigation.  It was totally contrary to the spirit of the Charter.”

Milne then asked whether, given the CCP’s inherent limitations (in addition to independence issues, the CCP’s funding mandate—limited to equality and official language minority rights cases—has long been criticized as far too narrow), the CCP was the best way to support Charter litigation in Canada.

Asper dismissed this as a red herring.  “Something is better than nothing,” he said, “but the discussion of CCP is a Band-Aid to a much more significant problem in the Canadian justice system.”  Specifically addressing those in the audience watching live via webcast from Ottawa, he continued, “I believe that the courts, and the things that radiate inward from courts—judges, lawyers, systems, processes— are failing us.  The court system itself is the biggest barrier to the adjudication of Charter rights.”

Anand was much more circumspect.  “I think it’s a bit of a distraction to say that we have a bigger problem [i.e., access to justice] and therefore we shouldn’t look at this little problem [the CCP] and try to fix it.  We have a rare opportunity here, and the question should be how we put this program back in place more durably and more effectively than the previous program.”

The ensuing discussion canvassed various alternatives to constitutional litigation, including less reliance on traditional adversarial processes (at the cost of establishing fewer binding precedents), a specialized constitutional court (diametrically opposed to the Supreme Court of Canada’s view on which tribunals can adjudicate Charter claims), and reformed civil procedure rules.  Several members of the audience wondered at the viability of privately funded litigation supplanting the CCP, such as US-style charitable organizations seeking public interest standing to bring constitutional challenges.

No consensus emerged, and the discussion concluded with Asper underlining the ongoing—soon to be imminent—need to re-engage Canadians on the importance of Charter litigation following the CCP’s suspension in 2006: “We’ve probably come through an era of government where [the Charter] wasn’t so popular,” he said, “and that’s no longer the case.”  Asper concluded by reminding the audience of what he sees as the broader context for the reformed CCP.  Once again addressing the audience watching by webcast, he said, “Canadians are losing faith in our justice system as we continue to talk about doing all these things to fix it, and don’t fix it.”

By Christopher R. Graham / Photography by Salathiel Wesser

Asper Centre was granted leave to intervene in the SCC case on voting rights for long-term expats

The case, Gillian Frank, et al. v Attorney General of Canada concerns two applicants who are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

A majority of the Court of Appeal allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to the laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.

The Asper Centre will intervene in March of 2018.