Dalhousie Law Journal, Forthcoming
40 Pages Posted: 21 Sep 2016 Last revised: 17 Oct 2016
Date Written: October 16, 2016
A recent decision from the New Brunswick Provincial Court may have unusually significant implications for Canada’s constitutional structure. In R v Comeau, the court held that s. 121 of the Constitution Act, 1867, the Constitution’s internal free trade provision, prohibits both interprovincial tariffs as well as non-tariff trade barriers. In doing so, the trial judge departed from a line of Supreme Court and Privy Council precedents holding that s. 121 prohibits only the erection of outright tariffs or duties on interprovincial trade. Ultimately, the judge held that s. 134(b) of New Brunswick’s Liquor Control Act, which effectively prohibits the possession of all but small quantities of liquor purchased out of province, constituted a non-tariff barrier in contravention of s. 121. In this paper, the author argues that the trial judge was correct in holding that the text, historical context, and purpose of s. 121 all indicate that it should extend at least to some non-tariff barriers. Yet the decision also leaves important questions unanswered, including how a robust interpretation of s. 121 can be reconciled with provincial regulatory authority, how an interpretation of s. 121 should be informed by the constitutional principles of democracy and federalism, and how doctrine can be developed so as to appropriately distinguish between permissible and impermissible non-tariff barriers. After considering the purposes of s. 121, as well as internal free trade jurisprudence from Australia and the United States, the author proposes a framework that aims to reconcile the trial judge’s analysis with these additional considerations.
Keywords: constitutional law, federalism, trade and commerce, free trade
Suggested Citation: Suggested Citation
Lavoie, Malcolm, R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union (October 16, 2016). Dalhousie Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2840845