R. v. Comeau (2018) SCC reinforces the law we all grew up with. You’re not allowed to go over to Quebec to buy your cheap beer and cigarettes. Comeau was charged under a New Brunswick provincial statute, with having in his possession some beer that was not purchased in New Brunswick.
Comeau’s lawyer did a thing that I did many years ago, when representing a Labrador Innuit who had killed a polar bear, out on the ice, without a license. I went ‘constitutional’ on the crown. I don’t mean Charter nonsense. I mean that I went back to the original constitution. The British North America Act. I argued that the waters off of Labrador were federal and the province could not legislate. The crown withdraw rather than risk their legislation.
Comeau’s lawyer looked at the BNA Act and found s.121 which stated that all products will be admitted freely into every province.
There can be no stronger assertion of a free trade zone that this clause. Any judge abiding by original intention would so find. Of course, ‘original intent’ is prohibited in Canada. No judge will survive such politically-incorrect approach to the constitution. Which is why we find the Supreme Court rendering an extra-hard spanking on the provincial court judge who presumed to apply original intent to the Canadian constitution.
The Supreme Court reiterated that s.121 does not mean free trade in the ordinary sense of the phrase (i.e. that you can buy your groceries in one province and go home to another). No, rather s.121 means what it has been interpreted by many courts over 150 years to mean. That is: that the provinces have, over that time erected countless provincial monopolies, each of which burden the citizen with higher prices, less choice, less convenience. But which the province has deemed to be in the overall interest of that particular province.
This is why you saw the contemptable spectacle of every provincial monopoly being granted standing at the Supreme Court to argue how it was essential for the welfare of the country that these egg producers, and these dairy farmers maintain their monopolies.
Ronald Coase, who won the nobel prize in economics, once said that it did not matter to whom the legal right was assigned (in this case the province) if getting rid of monopolies was in the provincial interest the province would do it.
This is formally correct and is a complete answer (which was the implicit answer of all of the judges from Watson to Maitland who sided with the provinces over the century) against the federalists like F.R. Scott and Bora Laskin.
But in this victorious spirit of the provinces celebrating yet another crippling of the union at the hands of the Supreme Court, it would not hurt to listen to Adam Smith, the most accurate spirit of what welfare is and is not.
He described England, the rise of England from the 1630’s to the 1770’s. His core argument was that the rise was synonymous with the fall of statutory monopolies, put in place over the Henry-Elizabethan years.
As for the colonies of North America, he said this: ‘Of all the expedients that can well be contrived to stunt the natural growth of a new colony that of an exclusive company is undoubtedly the most effectual’ (book 4, vii., b, 22)
As between Coase and the Supreme Court and Smith and MacDonald’s Original Intent, I think Smith and Macdonald had the Original Intent of letting you buy your beer and your cigarettes, milk, eggs, gas, electricity, and everything else in Quebec.
