R. v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union
40:1 Dalhousie Law Journal 189 (2017)
33 Pages Posted: 21 Sep 2016 Last revised: 20 Aug 2017
Date Written: October 16, 2016
A recent decision from the New Brunswick Provincial Court may have significant implications for Canada’s constitutional structure. R. v. Comeau 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 court departed from a line of precedents holding that s. 121 prohibits only the erection of outright tariffs or duties on interprovincial trade. Ultimately, the court 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. The Supreme Court of Canada recently granted leave to appeal. The author argues that the judge was correct in holding that s. 121 should extend at least to some non-tariff barriers. Yet the decision leaves important questions unanswered, including how s. 121 can be reconciled with provincial regulatory authority, how a construction 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. 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
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