R. v. Comeau

R. v. Comeau
Collection
Supreme Court Judgments
Date
2018-04-19
Neutral citation
2018 SCC 15
Report
[2018] 1 SCR 342
Case number
37398
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
New Brunswick
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342
Appeal Heard: December 6, 2017 Judgment Rendered: April 19, 2018 Docket: 37398
Between:
Her Majesty The Queen
Appellant
and
Gerard Comeau
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Attorney General of the Northwest Territories, Government of Nunavut as represented by the Minister of Justice, Liquidity Wines Ltd., Painted Rock Estate Winery Ltd., 50th Parallel Estate Limited Partnership, Okanagan Crush Pad Winery Ltd., Noble Ridge Vineyard and Winery Limited Partnership, Artisan Ales Consulting Inc., Montreal Economic Institute, Federal Express Canada Corporation, Canadian Chamber of Commerce, Canadian Federation of Independent Business, Cannabis Culture, Association of Canadian Distillers, operating as Spirits Canada, Canada’s National Brewers, Dairy Farmers of Canada, Egg Farmers of Canada, Chicken Farmers of Canada, Turkey Farmers of Canada, Canadian Hatching Egg Producers, Consumers Council of Canada, Canadian Vintners Association and Alberta Small Brewers Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 128)
The Court
R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342
Her Majesty The Queen Appellant
v.
Gerard Comeau Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of British Columbia,
Attorney General of Prince Edward Island,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Attorney General of Newfoundland and Labrador,
Attorney General of the Northwest Territories,
Government of Nunavut as represented by the Minister of Justice,
Liquidity Wines Ltd.,
Painted Rock Estate Winery Ltd.,
50th Parallel Estate Limited Partnership,
Okanagan Crush Pad Winery Ltd.,
Noble Ridge Vineyard and Winery Limited Partnership,
Artisan Ales Consulting Inc.,
Montreal Economic Institute,
Federal Express Canada Corporation,
Canadian Chamber of Commerce,
Canadian Federation of Independent Business,
Cannabis Culture,
Association of Canadian Distillers, operating as Spirits Canada,
Canada’s National Brewers,
Dairy Farmers of Canada,
Egg Farmers of Canada,
Chicken Farmers of Canada,
Turkey Farmers of Canada,
Canadian Hatching Egg Producers,
Consumers Council of Canada,
Canadian Vintners Association and
Alberta Small Brewers Association Interveners
Indexed as: R. v. Comeau
2018 SCC 15
File No.: 37398.
2017: December 6; 2018: April 19.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for new brunswick
Constitutional law — Interprovincial trade — Provincial offences — Restricted access to liquor from other provinces — New Brunswick resident charged under s. 134(b) of Liquor Control Act for having quantities of alcohol in excess of applicable limit — Whether s. 134(b) of Liquor Control Act infringes s. 121 of Constitution Act, 1867 — Whether s. 121 is free trade provision that bars any impediment to interprovincial commerce — Meaning of “admitted free” in s. 121 —Whether trial judge erred in departing from binding precedent on basis of historical evidence and expert’s opinion of evidence — Constitution Act, 1867, s. 121 — Liquor Control Act, R.S.N.B. 1973, c. L-10, s. 134(b).
Together with other provisions of the New Brunswick Liquor Control Act, s. 134(b) makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation. C is a resident of New Brunswick who entered Quebec, visited three different stores, and purchased quantities of alcohol in excess of the applicable limit. Returning from Quebec to New Brunswick, C was stopped by the RCMP; he was charged under s. 134(b) and was issued a fine. C challenged the charge on the basis that s. 121 of the Constitution Act, 1867 — which provides that all articles of manufacture from any province shall be “admitted free” into each of the other provinces — renders s. 134(b) unconstitutional. The trial judge found s. 134(b) to be of no force and effect against C and dismissed the charge. The Court of Appeal dismissed the Crown’s application for leave to appeal.
Held: The appeal should be allowed. Section 134(b) of the Liquor Control Act does not infringe s. 121 of the Constitution Act, 1867 .
Common law courts are bound by authoritative precedent. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. A legal precedent may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Not only is the exception narrow, it is not a general invitation to reconsider binding authority on the basis of any type of evidence. For a binding precedent from a higher court to be cast aside, the new evidence must fundamentally shift how jurists understand the legal question at issue.
This high threshold was not met in this case. The trial judge relied on evidence presented by an historian whom he accepted as an expert. The trial judge accepted the expert’s description of the drafters’ motivations for including s. 121 in the Constitution Act, 1867 , and the expert’s opinion that those motivations drive how s. 121 is to be interpreted. Neither class of evidence constitutes evolving legislative and social facts or a comparable fundamental shift; the evidence is simply a description of historical information and one expert’s assessment of that information. The trial judge’s reliance on the expert’s opinion of the correct interpretation of s. 121 was erroneous. To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert. And to rely on such evidence to rebut stare decisis is to substitute one expert’s opinion on domestic law for that expressed by appellate courts in binding judgments. This would introduce the very instability in the law that the principle of stare decisis aims to avoid.
The modern approach to statutory interpretation provides a guide for determining how “admitted free” in s. 121 should be interpreted. The text of the provision must be read harmoniously with the context and purpose of the statute. Constitutional texts must be interpreted in a broad and purposive manner and in a manner that is sensitive to evolving circumstances. Applying this framework to s. 121 , the text, historical context, legislative context, and underlying constitutional principles do not support the contention that s. 121 should be interpreted as prohibiting any and all burdens on the passage of goods over provincial boundaries, essentially imposing an absolute free trade regime within Canada. Rather, these considerations support a flexible, purposive view of s. 121 — one that respects an appropriate balance between federal and provincial powers.
With respect to the text of s. 121 , the phrase “admitted free” is ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts. To achieve economic union, the framers of the Constitution agreed that individual provinces needed to relinquish their tariff powers. The historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff‑like measures. But the historical evidence nowhere suggests that provinces would lose their power to legislate under s. 92 of the Constitution Act, 1867 for the benefit of their constituents even if that might have impacts on interprovincial trade.
As well, the legislative context of s. 121 indicates that it was part of a scheme that enabled the shifting of customs, excise, and similar levies from the former colonies to the Dominion; that it should be interpreted as applying to measures that increase the price of goods when they cross a provincial border; and that it should not be read so expansively that it would impinge on legislative powers under ss. 91 and 92 of the Constitution Act, 1867 .
In addition, foundational principles underlying the Constitution may aid in its interpretation. In this case, the federalism principle is vital. It recognizes the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction and requires a court interpreting constitutional texts to consider how different interpretations impact the balance between federal and provincial interests. Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation. The need to maintain balance embodied in the federalism principle supports an interpretation of s. 121 that prohibits laws directed at curtailing the passage of goods over interprovincial borders, but allows legislatures to pass laws to achieve other goals within their powers, even though the laws may have the incidental effect of impeding the passage of goods over interprovincial borders.
The lines of jurisprudential authority about the ambit of s. 121 can be distilled into two related propositions. First, the purpose of s. 121 is to prohibit laws that in essence and purpose restrict or limit the free flow of goods across the country. Second, laws that pose only incidental effects on trade as part of broader regulatory schemes not aimed at impeding trade do not have the purpose of restricting interprovincial trade and hence do not violate s. 121. Therefore, s. 121 does not catch burdens on goods crossing provincial borders that are merely incidental effects of a law or scheme aimed at some other purpose. To prohibit incidental impacts on cross‑border trade would allow s. 121 to trump valid exercises of legislative power, and create legislative hiatuses where neither level of government could act.
It follows that a claimant alleging that a law violates s. 121 must establish that the law in essence and purpose restricts trade across a provincial border. The law must impact the interprovincial movement of goods like a tariff, which, in the extreme, could be an outright prohibition. The claimant must establish that the law imposes an additional burden on goods by virtue of them coming in from outside the province. And, restriction of cross‑border trade must be the primary purpose of the law, thereby excluding laws enacted for other purposes, such as laws that form rational parts of broader legislative schemes with purposes unrelated to impeding interprovincial trade.
In this case, s. 134(b) impedes liquor purchases originating anywhere other than the New Brunswick Liquor Corporation. In essence, it functions like a tariff, even though it may have other purely internal effects. However, the text and effects are aligned and suggest the primary purpose of s. 134(b) is not to impede trade, but rather to restrict access to any non‑Corporation liquor, not just liquor brought in from another province. The objective of the New Brunswick regulatory scheme is 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. Finally, s. 134(b) is not divorced from the objective of the larger scheme. It plainly serves New Brunswick’s choice to control the supply and use of liquor within the province. The primary purpose of s. 134(b) is to prohibit holding excessive quantities of liquor from supplies not managed by the province. While one effect of s. 134(b) is to impede interprovincial trade, this effect is only incidental in light of the objective of the provincial scheme in general. Therefore, while s. 134(b) in essence impedes cross‑border trade, this is not its primary purpose. Section 134(b) does not infringe s. 121 of the Constitution Act, 1867 .
Cases Cited
Applied: Gold Seal Ltd. v. Attorney‑General for the Province of Alberta (1921), 62 S.C.R. 424; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Atlantic Smoke Shops Ltd. v. Conlon, [1943] 4 D.L.R. 81; Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; referred to: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Roberge v. Bolduc, [1991] 1 S.C.R. 374; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Canadian Pacific Air Lines Ltd. v. British Columbia, [1989] 1 S.C.R. 1133; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Edwards v. Attorney‑General for Canada, [1930] 1 D.L.R. 98; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; R. v. Mohan, [1994] 2 S.C.R. 9; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Attorney‑General for Manitoba v. Manitoba Egg and Poultry Assn., [1971] S.C.R. 689; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581; R. v. Gautreau (1978), 21 N.B.R. (2d) 701.
Statutes and Regulations Cited
Canadian Wheat Board Act, R.S.C. 1952, c. 44.
Constitution Act, 1867, ss. 91 , 92 , Part VIII, 119, 121, 122, 123.
Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I‑3, s. 3 .
Liquor Control Act, R.S.N.B. 1973, c. L‑10, ss. 43(c), 134(b), 148(2).
New Brunswick Liquor Corporation Act, S.N.B. 1974, c. N-6.1 [now R.S.N.B. 2016, c. 105].
Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, s. 116(3).
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40 .
Treaties and Other International Instruments
General Agreement on Tariffs and Trade, Can. T.S. 1948 No. 31, Part I, Article I.
Reciprocity Treaty With Great Britain, June 5, 1854, 10 Stat. 1089.
Authors Cited
Black’s Law Dictionary, 9th ed. by Bryan A. Gardner. St. Paul, Minn.: Thompson Reuters, 2009, “tariff”.
Hill, Derek, ed. National Trade and Tariff Service. Toronto: LexisNexis, 1999 (loose‑leaf updated February 2018).
Hogg, Peter W., and Wade K. Wright. “Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism” (2005), 38 U.B.C. L. Rev. 329.
Kong, Hoi L. “Republicanism and the division of powers in Canada” (2014), 64 U.T.L.J. 359.
Leclair, Jean. “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity” (2003), 28 Queen’s L.J. 411.
McLean, James A. Essays in the Financial History of Canada. New York: Columbia College, 1894.
Monahan, Patrick J. “At doctrine’s twilight: The structure of Canadian federalism” (1984), 34 U.T.L.J. 47.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “essence”.
Perry, J. Harvey. Taxes, tariffs, & subsidies: A history of Canadian fiscal development. Toronto: University of Toronto Press, 1955.
Schneiderman, David. “Economic Citizenship and Deliberative Democracy: An Inquiry into Constitutional Limitations on Economic Regulation” (1995), 21 Queen’s L.J. 125.
Scott, F. R. “Centralization and Decentralization in Canadian Federalism” (1951), 29 Can. Bar Rev. 1095.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Swinton, Katherine. “Courting Our Way to Economic Integration: Judicial Review and the Canadian Economic Union” (1995), 25 Can. Bus. L.J. 280.
Wexler, Stephen. “The Urge to Idealize: Viscount Haldane and the Constitution of Canada” (1984), 29 McGill L.J. 608.
APPEAL from a judgment of the New Brunswick Court of Appeal (Larlee J.A.), 2016 CanLII 73665, [2016] N.B.J. No. 232 (QL), 2016 CarswellNB 445 (WL Can.), dismissing an application for leave to appeal a decision of LeBlanc Prov. Ct. J., 2016 NBPC 3, 448 N.B.R. (2d) 1, 1179 A.P.R. 1, 398 D.L.R. (4th) 123, [2016] N.B.J. No. 87 (QL), 2016 CarswellNB 167 (WL Can.), declaring s. 134(b) of the Liquor Control Act, R.S.N.B. 1973, c. L‑10, of no force or effect with respect to Mr. Comeau. Appeal allowed.
William B. Richards and Kathryn A. Gregory, Q.C., for the appellant.
Ian A. Blue, Q.C., Arnold Schwisberg, Mikael Bernard and Daria Peregoudova, for the respondent.
François Joyal and Ian Demers, for the intervener the Attorney General of Canada.
Michael S. Dunn and Padraic Ryan, for the intervener the Attorney General of Ontario.
Jean‑Vincent Lacroix and Laurie Anctil, for the intervener the Attorney General of Quebec.
No one appeared for the intervener the Attorney General of Nova Scotia.
J. Gareth Morley and Tyna Mason, for the intervener the Attorney General of British Columbia.
Jonathan M. Coady and Thomas Laughlin, for the intervener the Attorney General of Prince Edward Island.
Theodore J. C. Litowski, for the intervener the Attorney General of Saskatchewan.
Robert J. Normey, for the intervener the Attorney General of Alberta.
Philip Osborne and Barbara Barrowman, for the intervener the Attorney General of Newfoundland and Labrador.
Bradley Patzer, for the intervener the Attorney General of the Northwest Territories.
John L. MacLean and Adrienne Silk, for the intervener the Government of Nunavut as represented by the Minister of Justice.
Shea Coulson and Allan L. Doolittle, for the interveners Liquidity Wines Ltd., Painted Rock Estate Winery Ltd., 50th Parallel Estate Limited Partnership, Okanagan Crush Pad Winery Ltd. and Noble Ridge Vineyard and Winery Limited Partnership.
Malcolm Lavoie, for the intervener Artisan Ales Consulting Inc.
Mark Gelowitz and Robert Carson, for the intervener the Montreal Economic Institute.
J. Scott Maidment and Samantha Gordon, for the intervener Federal Express Canada Corporation.
Christopher D. Bredt and Ewa Krajewska, for the interveners the Canadian Chamber of Commerce and the Canadian Federation of Independent Business.
Kirk Tousaw and Jack Lloyd, for the intervener Cannabis Culture.
Jennifer Klinck and Marion Sandilands, for the intervener the Association of Canadian Distillers, operating as Spirits Canada.
Steven I. Sofer and Paul Seaman, for the intervener Canada’s National Brewers.
David K. Wilson, Owen M. Rees and Julie Mouris, for the interveners the Dairy Farmers of Canada, the Egg Farmers of Canada, the Chicken Farmers of Canada, the Turkey Farmers of Canada and the Canadian Hatching Egg Producers.
Paul J. Bates, Ronald Podolny, Tyler J. Planeta and Michael Sobkin, for the intervener the Consumers Council of Canada.
Robert W. Staley, Ranjan K. Agarwal and Jessica M. Starck, for the intervener the Canadian Vintners Association.
Robert Martz and Paul Chiswell, for the intervener the Alberta Small Brewers Association.
The following is the judgment delivered by
The Court —
I. Introduction
[1] In 1867, The British North America Act, 1867 (U.K.), 30 & 31 Vict., c. 3 , united individual British colonies into one new country, the Dominion of Canada. Prior to this, each colony had its own power to impose tariffs at its borders. Part VIII of that Act (now the Constitution Act, 1867 ) contains provisions for the transfer of this power to levy tariffs to the Dominion government. At the heart of Part VIII is s. 121 , the provision at issue in this appeal:
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.
[2] The respondent, Mr. Gerard Comeau, contends that s. 121 is essentially a free trade provision — in his view, no barriers can be erected to impede the passage of goods across provincial boundaries. On the other side of the debate, the appellant, Her Majesty the Queen in Right of New Brunswick (“the Crown”), argues that s. 121 was only intended to dismantle the power to impose tariffs or tariff-like charges at provincial boundaries. The trial judge agreed with Mr. Comeau. The question before us is whether he erred in doing so. What does it mean for articles to be “admitted free” as stated in s. 121 ? How does that requirement constrain state action? Fundamentally, does s. 121 constitutionalize some particular form of economic union? These questions lie at the core of this appeal.
[3] The answers to these questions have broad implications. If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. 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 may be invalid.
[4] The dispute arises out of Mr. Comeau’s assertion that s. 121 of the Constitution Act, 1867 prevents the Province of New Brunswick from legislating that New Brunswick residents cannot stock alcohol from another province. The appeal asks whether s. 134(b) of the Liquor Control Act, R.S.N.B. 1973, c. L-10, infringes s. 121 . Section 134(b) of the Liquor Control Act provides:
134 Except as provided by this Act or the regulations, no person, within the Province, by himself, his clerk, employee, servant or agent shall
. . .
(b) have or keep liquor,
not purchased from the Corporation.
[5] Together with ss. 43(c) and 148(2) of the Liquor Control Act, s. 134(b) makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation.
[6] In holding that s. 134(b) of the Liquor Control Act is invalid because it offends s. 121 of the Constitution Act, 1867 , the trial judge departed from binding precedent from this Court on the basis of historical and opinion evidence tendered by an expert witness.
[7] The appeal therefore raises two issues. First, did the trial judge err in departing from precedent, and second, what is the proper interpretation of s. 121 ? Both issues go to the primary question in this appeal: Does s. 134(b) of the Liquor Control Act infringe s. 121 of the Constitution Act, 1867 ?
[8] We conclude that the trial judge erred in departing from previous decisions of this Court. Going on to interpret s. 121 , we conclude that it prohibits laws that in essence and purpose impede the passage of goods across provincial borders and, therefore, does not prohibit laws that yield only incidental effects on interprovincial trade. The impediment to trade posed by s. 134(b) of the Liquor Control Act is an incidental effect of a regulatory scheme that does not, as its primary purpose, thwart interprovincial trade. Thus, s. 134(b) does not infringe s. 121 . We would therefore allow the appeal.
II. Factual History
[9] The respondent Mr. Comeau is a resident of the Tracadie-Sheila region on the Acadian Peninsula in northeastern New Brunswick. On October 6, 2012, Mr. Comeau drove to Campbellton in the northwest of the province, crossed the Restigouche River, and entered Quebec. Mr. Comeau did what many Canadians who live tantalizingly close to cheaper alcohol prices across provincial boundaries probably do. He visited three different stores and stocked up.
[10] Mr. Comeau was being watched. The Campbellton RCMP had become concerned with the frequency by which enterprising New Brunswick residents were sourcing large quantities of alcohol in Quebec in contravention of the law. In response, the RCMP started monitoring New Brunswick visitors to commonly frequented liquor stores on the Quebec side. Officers in Quebec would record visitors’ information and pass it on to their New Brunswick colleagues, who were waiting across the border. During his October 6, 2012 trip, Mr. Comeau was so tracked.
[11] Returning from Quebec to New Brunswick, Mr. Comeau was stopped by the RCMP. The police found a large quantity of beer and some bottles of spirits in his vehicle. It is not in dispute that Mr. Comeau purchased quantities of alcohol in excess of the applicable limit prescribed by s. 43(c) of the Liquor Control Act. Mr. Comeau was charged under s. 134(b) and consequently issued a fine in the amount of $240 plus administrative fees and the victim surcharge levy.
[12] Mr. Comeau challenged the charge on the basis that s. 121 of the Constitution Act, 1867 renders s. 134(b) of the Liquor Control Act unconstitutional and therefore of no force and effect. It is not controversial that the beer and liquor at issue in this case are the “Articles of the Growth, Produce, or Manufacture” of a Canadian province — that is, they were produced in Quebec or elsewhere in Canada. The question of whether s. 121 concerns non-Canadian goods imported into one province and then shipped across the country either intact or as inputs in new manufactured goods is not before the Court and therefore we do not address it.
III. Judicial History
[13] The New Brunswick Provincial Court, per LeBlanc J., agreed with Mr. Comeau that s. 134(b) infringed s. 121 of the Constitution Act, 1867 . The trial judge found s. 134(b) to be of no force and effect against Mr. Comeau and therefore dismissed the charge: 2016 NBPC 3, 448 N.B.R. (2d) 1.
[14] The trial judge accepted that this Court’s 1921 decision in Gold Seal Ltd. v. Attorney-General for the Province of Alberta (1921), 62 S.C.R. 424, was binding authority. He noted that this Court in Gold Seal held that s. 121 prohibits direct tariff barriers (i.e. customs duties) on goods moving between provinces. He found that s. 134(b) of the Liquor Control Act imposed no tariff and therefore would not violate s. 121 under Gold Seal.
[15] The trial judge went on to hold, however, that Gold Seal was wrongly decided and should not be applied, given the evidence on the origins of s. 121 called by Mr. Comeau. This evidence, presented by an historian whom the trial judge accepted as an expert, comprised historical information about the intentions of the drafters of s. 121 , and the expert’s opinion as to the import of that historical evidence for the interpretation of s. 121 . The trial judge accepted the expert’s opinion “without hesitation”: para. 52.
[16] On the basis of this evidence, the trial judge concluded that the drafters were highly motivated to open up trade between the provinces. This was a direct response to trade barriers that had been erected by the United States of America in response to anti-British sentiment in that country during the American Civil War. The trial judge accepted that the drafters would have been preoccupied with the continued economic prosperity of British North America after the American Civil War and that this depended on the availability of new barrier-free markets. The trial judge concluded that this motivation could be extracted from the expert’s description of the political climate at the time, but also more specifically from the speeches of some of the Fathers of Confederation. On this basis, the trial judge agreed with the expert that the phrase “admitted free” in s. 121 alluded to free trade, and that, in the minds of the drafters, this meant barrier-free borders.
[17] The trial judge first concluded that the failure of the Court to consider this historical evidence and “embark on a large, liberal or progressive interpretation” of s. 121 in Gold Seal rendered that decision suspect: para. 116. He then concluded that the new evidence adduced at trial allowed him to depart from Gold Seal under the evidence-based exception to vertical stare decisis approved in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. The trial judge held, at para. 125:
What has occurred is that there has been a significant change in evidence, one that I believe has fundamentally shifted the parameters of the debate. To my knowledge, in none of the cases dealing with section 121 has there been any evidence presented to the trier of fact, or to the appellate court, addressing the issues presented before me respecting the following topics: the drafting of the British North America Act, 1867 , the legislative history of the Act, the scheme of the Act and its legislative context. It has been the presentation of evidence on these issues that changed in a substantial way the parameters of the debate on the correct interpretation of the expression “admitted free” in section 121 of the Constitution Act, 1867 . In my opinion, this allows this Court to proceed with its analysis and indeed mandates that it do so.
[18] After concluding that he was entitled to depart from binding precedent on the basis of the expert’s evidence, the trial judge then held that this evidence of the “original purpose of the provision at issue” is “elemental and fundamental” in the analysis and should not be “displaced” by other considerations stemming from a “long-standing misinterpretation of the intent of the Fathers of Confederation”: para. 165.
[19] The trial judge held that, given his conclusions regarding the drafters’ intent, s. 121 , correctly construed, prohibits all barriers to interprovincial trade. As s. 134(b) of the Liquor Control Act discourages cross-border purchases and therefore limits access to extra-provincial liquor, the trial judge determined that it infringed s. 121 .
[20] The Crown sought leave to appeal directly to the New Brunswick Court of Appeal, as it was authorized to do in this case by virtue of s. 116(3) of the Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1. The Court of Appeal dismissed the application for leave: 2016 CanLII 73665.
[21] The Crown now appeals to this Court. Although the Court of Appeal’s decision was limited to the question of leave, the substantive constitutional question is properly before this Court: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Roberge v. Bolduc, [1991] 1 S.C.R. 374; s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 .
IV. Issues
[22] The main issue is whether s. 134(b) of the Liquor Control Act infringes s. 121 of the Constitution Act, 1867 . This raises the following subsidiary issues:
(a) Did the trial judge err in departing from binding precedent and providing his own interpretation of s. 121 ? and
(b) What is the proper interpretation of s. 121 ?
V. Analysis
A. Did the Trial Judge Err in Departing From Binding Precedent and Providing His Own Interpretation of Section 121 of the Constitution Act, 1867 ?
[23] The trial judge accepted that this Court’s decision in Gold Seal was binding authority and that, applying Gold Seal, s. 134(b) of the Liquor Control Act does not violate s. 121 of the Constitution Act, 1867 . He went on to hold, however, that Gold Seal had been wrongly decided and that therefore he should not follow it.
[24] The decision of this Court in Gold Seal was expressly affirmed by the Judicial Committee of the Privy Council in Atlantic Smoke Shops Ltd. v. Conlon, [1943] 4 D.L.R. 81, at pp. 91-92, and by a majority of this Court in Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, at p. 634. It has never been overruled, although some Justices of this Court have interpreted it to apply not only to tariffs, but to tariff-like burdens on goods crossing provincial boundaries: Murphy, at p. 642, per Rand J.; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198, at p. 1268, per Laskin C.J.; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591, at p. 609, per La Forest J.; Canadian Pacific Air Lines Ltd. v. British Columbia, [1989] 1 S.C.R. 1133, at p. 1153, per La Forest J.; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, at paras. 123 and 171, per McLachlin J. (as she then was).
[25] For the stare decisis issue, we need not decide between these interpretations (although we address them later in these reasons). The trial judge’s reading of s. 121 — that it precludes any laws that impede goods crossing provincial boundaries — is incompatible with both interpretations.
[26] Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.
[27] The question before us is whether the trial judge erred in rejecting this Court’s precedent, which he acknowledged was binding, and re-interpreting s. 121 . In doing so, he relied on one historian’s evidence of the drafters’ motivations for including s. 121 in the Constitution Act, 1867 and that expert’s opinion of what those motivations tell us about how s. 121 should be interpreted today.
[28] The trial judge relied on one of the narrow exceptions to vertical stare decisis identified by this Court in Bedford. The respondent argues that the trial judge was entitled to do so on the basis of the expert’s evidence. The appellant demurs. We agree with the appellant.
[29] In Bedford, this Court held that a legal precedent “may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”: para. 42. The trial judge, relying on the evidence-based exception identified in that excerpt from Bedford, held that the historical and opinion evidence he accepted “fundamentally shifts the parameters of the debate” over the correct interpretation of s. 121 , referring to this Court’s treatment of the question in Gold Seal.
[30] The new evidence exception to vertical stare decisis is narrow: Bedford, at para. 44; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44. We noted in Bedford, at para. 44, that
a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. . . . This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
[31] Not only is the exception narrow — the evidence must “fundamentally shif[t] the parameters of the debate” — it is not a general invitation to reconsider binding authority on the basis of any type of evidence. As alluded to in Bedford and Carter, evidence of a significant evolution in the foundational legislative and social facts — “facts about society at large” — is one type of evidence that can fundamentally shift the parameters of the relevant legal debate: Bedford, at paras. 48-49; Carter, at para. 47. That is, the exception has been found to be engaged where the underlying social context that framed the original legal debate is profoundly altered.
[32] In Carter, for example, new evidence about the harms associated with prohibiting assisted death, public attitudes toward assisted death, and measures that can be put in place to limit risk was relevant. This evidence was unknowable or not pertinent, given the existing legal framework, when Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, was decided. These new legislative and social facts did not simply provide an alternate answer to the question posed in Rodriguez. Instead, the new evidence fundamentally shifted how the Court could assess the nature of the competing interests at issue.
[33] This focus on shifting legislative and social facts is conceptually linked to Lord Sankey’s famous “living tree” metaphor, which acknowledges that interpretations of the Constitution Act, 1867 evolve over time, given shifts in the relevant legislative and social context: Edwards v. Attorney-General for Canada, [1930] 1 D.L.R. 98 (P.C.), at pp. 106-7. In Edwards, both legal and social changes that had opened the door to women’s increased integration into public life after Confederation confirmed that it was no longer appropriate to read the term “person” in the impugned constitutional provision as anything other than its plain gender-neutral meaning: pp. 110-12.
[34] To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question.
[35] This high threshold was not met in this case.
[36] The trial judge accepted the expert’s evidence in question on two points — one of history, the other of law. He accepted (1) the expert’s description of the drafters’ motivations for including s. 121 in the Constitution Act, 1867 , and (2) the expert’s opinion that those motivations drive how s. 121 is to be interpreted. Neither class of evidence constitutes evidence, for example, of evolving legislative and social facts; the evidence is simply a description of historical information and one expert’s assessment of that information. This does not evince a profound change in social circumstances from the time Gold Seal was decided. It is evidence of one perspective of events that occurred decades before the Gold Seal company brought its case to the courts and a century before this Court’s discussion of s. 121 in Murphy. Historical evidence can be helpful for interpreting constitutional texts: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236. However, a re-discovery or re-assessment of historical events is not evidence of social change.
[37] Because the historical evidence accepted by the trial judge is not evidence of changing legislative and social facts or some other fundamental change, it cannot justify departing from vertical stare decisis. Differing interpretations of history do