Lawyers and Students
By Michael Marschal, JD Candidate (University of Saskatchewan)
This comment explores R. v. Comeau. Although the Supreme Court of Canada’s articulation of the law regarding s. 121 of the Constitution Act, 1867 was persuasive, well-reasoned, and consistent with modern federalism jurisprudence, its application was shallow and overly deferential.
One man’s quest to buy cheap liquor across the provincial border in Quebec, without risking a fine, led to the Supreme Court of Canada decision R. v. Comeau.1 This decision considered whether s. 134(b) of the New Brunswick Liquor Control Act2 infringed s. 121 of the Constitution Act, 1867.3 It clarified two significant issues in the law: (1) when lower court judges can depart from binding precedent based on the exceptions outlined in R. v. Bedford;4 and (2) the nature and scope of s. 121 of the Constitution. The first issue was quickly dealt with by the Court, concluding that the trial judge erred by departing from binding precedent on s. 121.5 The Supreme Court’s handling of the second issue, the nature and scope of s. 121, is the focus of this comment.
The Court’s seventy-three paragraph analysis of s. 121 is persuasive, well-reasoned, and consistent with modern federalism jurisprudence. By contrast, the brief ten-paragraph application that follows appears shallow and overly deferential. It fails to give any real meaning to s. 121, particularly given the courts’ role as “guardians of the constitution.”6 The Court ultimately reached the correct result, but for the wrong reasons.
Section 121 states “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.”7The Court concluded in Comeau that s. 121 does not create an absolute free trade zone in Canada.8 Provincial laws with merely incidental effects impacting interprovincial trade do not violate s. 121.9 Instead, to violate s. 121, a provincial law must restrict interprovincial trade in both essence and purpose.10 This approach is consistent with modern federalism jurisprudence, which has moved away from the historic concept of federal and provincial powers as “watertight compartments” to a conception of cooperative federalism involving “overlapping jurisdiction.”11 In Reference re Secession of Quebec,12 the Supreme Court recognized the principle of federalism means that provincial governments must be allowed the autonomy to regulate and “develop their societies”13 even if that regulation has incidental effects on federal jurisdiction.14
The interpretation of s. 121 from Comeau is merely one more iteration of the idea of cooperative federalism. Section 121 is simply an enumerated power to impose interprovincial tariffs that was taken out of the powers conferred in ss. 91 and 92 of the Constitution.15However, it must be viewed similarly to other powers: in a flexible and purposive manner.16
Comeau becomes problematic when the Court applies s. 121 to s. 134(b) of the LCA. Subsection 134(b) prohibits the possession of liquor not purchased from the New Brunswick Liquor Corporation (known as Alcohol New Brunswick Liquor, “ANBL”) except for the allowed amount prescribed in s. 43.17 Section 43 allows for possession of twelve pints of beer or one bottle of liquor not purchased from the ANBL.18 The Court concluded s. 134(b) has two effects: (1) it restricts access to liquor purchased from outside the province; and (2) it restricts access to liquor purchased intraprovincially that is not purchased from the ANBL.19 The fine imposed for violation of this provision, in substance, acts as an interprovincial tariff and thus, in essence, violates s. 121.20 However, to be inconsistent with s. 121, the primary purpose of the legislation must also be to restrict trade. It is at this point where my analysis diverges from that of the Court.
The Court concludes that the provision’s primary purpose is to “enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick.”21 With the utmost respect for the Court, this conclusion fails to critically examine the regulatory framework and the substance of the provision.
To be clear, an impermissible purpose, when considering the core22 of s. 121, is imposing a charge merely because alcohol is crossing a provincial boundary.23 Creating a provincial monopoly on alcohol sales within the province is a permissible purpose.24 Artificially increasing the price of all alcohol within the province is a permissible purpose.25 Setting provincial standards on the permissible quality and alcohol content is a permissible purpose.26 So long as the provisions treat all alcohol in the province equally, there is no infringement of s. 121.
The real purpose of s. 134(b) of the LCA is to protect the provincial monopoly on alcohol sales by prohibiting the possession of liquor not purchased from the ANBL. Taking a broad, permissive view of the purpose as “supervision” of alcohol in New Brunswick fails to take an honest assessment of the nature of alcohol sales in the province. The product sold by the ANBL is the exact same product that is sold in other provinces.27 The ANBL controls the supply of alcohol in the province but does not limit it in any meaningful way. The ANBL does not set any limits on the volume of ANBL alcohol that can be purchased or possessed by residents in the province, nor does it monitor who purchases liquor from the ANBL or how it is being used or transported.28 New Brunswick does not do anything to monitor or supervise alcohol lawfully purchased from the ANBL after the transaction is concluded.
It could be argued that government regulation to artificially increase the price of all alcohol in the province with the goal of discouraging excessive alcohol consumption is a permissible purpose.29 However, government regulation must treat the price of all alcohol in the province equally to avoid being classified as a tariff.30 Subsection 134(b) does not treat all alcohol equally as it prohibits virtually all out-of-province liquor and enforces the prohibition through a fine, which is an arbitrary amount not connected to the price of alcohol set by the ANBL.
The allowable amounts in s. 43 of the LCA are simply too low to indicate a primary purpose of targeting bootleggers seeking to violate the ANBL’s monopoly. Twelve pints of beer or one bottle of liquor is a relatively small amount of alcohol considering that the top twenty per cent of alcohol consumers in the United States drink, on average, more than fifteen drinks per week.31 The exact placement as to where the line of allowable amounts is drawn should be left to the legislature; however, the limits must be reasonable if the purpose is truly to target bootlegging. Subsection 134(b), in conjunction with s. 43, clearly targets the personal consumption of out-of-province liquor, not merely potential bootleggers.
The primary purposes of s. 134(b) is to protect the province’s monopoly on alcohol and the revenue it generates for the province. Although s. 121 is directed at revenue generating provincial tariffs,32 the fact that s. 134(b) generates revenue does not automatically mean that the purpose is to impose a charge on liquor crossing a provincial border. One must look at the journey of two bottles of beer, one brewed in Moncton, New Brunswick,33 the other brewed in London, Ontario,34 to understand the true nature of the LCA scheme. Both beers are purchased by the ANBL at fair market value and then sold to the people of New Brunswick at a markup. Both beers are treated the same. The liquor is still admitted “free” in the sense that the scheme does not impose a charge for liquor merely crossing a border, but acts as a general tax on all liquor in the province regardless of where it is manufactured. The taxation of liquor in the province to recover costs on the healthcare or criminal justice systems caused by alcohol is a permissible provincial purpose.35 The Court shies away from this result and instead chooses to close its eyes to the true nature of the scheme.36 However, by doing so, it creates the potential for the ANBL to implicitly violate s. 121 by refusing to purchase alcohol from certain provinces. All alcohol in New Brunswick flows through the ANBL; therefore, the true risk in the LCA scheme is the ANBL’s discretion to choose which goods enter the province by exercising its purchasing powers provided for in the LCA.37 This risk is amplified by the administrative nature of this power, as it may not be clear to an outside observer why the ANBL is, or is not, purchasing specific liquor from a particular region.
The lack of critical analysis of the substance of s. 134(b) demonstrates an unwillingness on the part of the Court to enforce s. 121 of the Constitution in a meaningful way. Despite the Court’s insistence on looking at substance over form, it refrains from doing so in its application of the law to s. 134(b).38
Although the Court ultimately comes to the correct result in Comeau, its application was unduly shallow and sends the implicit message that the courts will not look behind the veil when it comes to s. 121. This leaves provincial governments free to violate s. 121, provided they cloak their impermissible purpose using broad, open provisions to blend it with a permissible one. Time will tell whether courts in the future will engage in more probing analyses of provisions alleged to violate s. 121.
1 2018 SCC 15 [Comeau].
2 RSNB 1973, c L-10 [LCA].
3 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [Constitution].
4 2013 SCC 72,  3 SCR 1101.
5 Comeau, supra note 1 at paras 23–43.
6 The Right Honourable Chief Justice of Canada Beverley McLachlin, “Canada’s Legal System at 150: Democracy and the Judiciary Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada” (delivered at the Empire Club of Canada, Toronto, Ontario, 3 June 2016), online: Supreme Court of Canada <https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx>, archived: < https://perma.cc/ZWT8-TMXN>.
7 Constitution, supra note 3.
8 Comeau, supra note 1 at para 89.
10 Ibid at para 107.
11 Reference re Securities Act, 2011 SCC 66 at paras 54-60,  3 SCR 837.
12 Reference re Secession of Quebec,  2 SCR 217, 1998 CanLII 793.
13 Ibid at para 58.
15 Comeau, supra note 1 at para 72.
16 Ibid at para 89.
17 LCA, supra note 2.
19 Comeau, supra note 1 at para 121.
21 Ibid at para 124.
22 To borrow terminology from the doctrine of interjurisdictional immunity (Quebec v Canadian Owners and Pilots Association, 2010 SCC 39 at para 37,  2 SCR 536).
23 Comeau, supra note 1 at paras 67, 98, 100.
24 Ibid at para 124.
25 Ibid at para 93.
26 Constitution, supra note 3, s 92(13).
28 Except, of course, to ensure the purchaser is of legal age and persons are not driving while intoxicated.
29 Comeau, supra note 1 at para 93.
30 Ibid at para 108.
31 Christopher Ingraham, “Think You Drink a Lot? This Chart Will Tell You”, The Washington Post(25 September 2014), online: <https://www.washingtonpost.com/news/wonk/wp/2014/09/25/think-you-drink-a-lot-this-chart-will-tell-you/?noredirect=on&utm_term=.260fdd3ac0e3>, archived: <https://perma.cc/JH76-2PNP>.
32 Comeau, supra note 1 at paras 61, 68, 71.
33 Molson Canadian is brewed in Moncton, New Brunswick and sold by the ANBL (“Molson Coors Canada” (2018), online: Molson Coors <https://www.molsoncoors.com/en/our-story/our-markets/molson-coors-canada>, archived: <https://perma.cc/92CE-5VH4>).
34 Budweiser is brewed by Labatt in London, Ontario and sold by the ANBL (“Our Company” (2018), online: Labatt <http://www.labatt.com/company/#province>, archived: <https://perma.cc/7LRM-C2A6>).
35 Constitution, supra note 3, s 92(2).
36 Comeau, supra note 1 at para 124.
37 Supra note 2, s 35(2).
38 Comeau, supra note 1 at para 109.
Since the introduction of mandatory CPD in Saskatchewan in 2010, the CPD Policy required that CPD content be designed for an audience that is primarily composed of lawyers, paralegals, articling students and/or law students. However, over the last decade the legal landscape has changed and access to justice has become an increasingly prominent issue. There has been a dramatic increase in the number of self-represented litigants and in public demand for legal information. Further, the Law Society has received questions/complaints from members who have presented to an audience that is not connected to the legal profession. These members express the view that to prepare and present to these other audiences requires similar (and sometimes more) review, analysis and preparation, as compared to presenting to a lawyer audience.
In light of this, and to better facilitate and encourage the delivery of legal information to the public, the CPD Policy has been amended, effective January 1, 2019, to reduce the restrictions on the type of audience required for CPD hours. The CPD content being presented must be in compliance with the overall subject matter requirements set out in the CPD Policy, but the restrictions on the type of audience have been removed, with the exception of presentations to clients (CPD hours are not available for presentations targeted primarily at clients).
Please refer to the complete CPD Policy on our website for further details related to CPD requirements.
With travellers at Canadian airports and border crossings subject to increasing scrutiny, it is important for lawyers and Quebec notaries to have an understanding of how the privacy interests of their clients may be impacted by legislation and policies developed to address public safety issues. Legal counsel should also understand that their profession does not make them immune to policies and processes that could impact information otherwise subject to solicitor-client privilege.
Canadian lawyers and Quebec notaries travelling internationally with electronic devices face increasing uncertainty about how those electronic devices will be treated by border agents on apprehension by Canadian Border Security Agency (“CBSA”) officers on return to Canada, by border agents in the U.S., or by border agents in other international destinations. Searching the electronic device (including smart phones, laptops, and USB sticks) of a legal professional may infringe solicitor-client privilege when that legal professional crosses borders.
This advisory, developed by the Policy Counterpart Group of the Federation of Law Societies of Canada (the “Federation”) with the assistance of law society practice advice counsel, describes the risks of travelling with an electronic device when returning to Canada, going through pre-clearance with U.S. border officials on Canadian soil, and when travelling to the U.S. and beyond. This advisory also identifies relevant professional responsibilities, and concludes with suggestions and advice for Canadian lawyers and Quebec notaries on minimizing those risks.
For the complete advisory, please see the Law Society website.
 Office of the Privacy Commissioner, “Your privacy at airports and borders,” (October 2018), online: https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/
By Alan Kilpatrick
Are you attending the CBA Mid-Winter Meeting being held January 31 – February 1 in Saskatoon? The Law Society Legal Resources Department is excited to be hosting a booth at the meeting again this year.
Please visit us to learn more about the Law Society and its many programs. Legal Resources staff will be on hand to tell you about their exciting research services, online resources, and publications. We look forward to talking to you.
Please note that our awesome Law Society Librarians, Ken fox and Alan Kilpatrick, will be presenting a must-see session on legal enhancements at the meeting:
Thursday, January 31, 2018
Time: 3:15 pm – 4:45 pm
Ken Fox, Alan Kilpatrick // LAW SOCIETY OF SASKATCHEWAN LIBRARY
Ignorantia Legis Neminem Excusat. Ignorance excuses no one. Indeed, the public is presumed to know the law. But in today’s world, the law is far too complex to be read out in a public square. It is even too complex for a trained professional to know much more than is required for a limited range of practice. Primary law is now simultaneously more voluminous and more available than ever. The haystacks are planet-sized, and the needles neatly labelled. Are you using a GPS, or an expired atlas? Today, knowing means knowing how to find. So how does one find the law on a particular question? Through legal information enhancements. In this session, the Law Society librarians will provide an account of how critical enhanced legal resources are to locating law for both the public and the legal profession.
In light of Bell Let’s Talk day, the Law Society wants to remind our members that there is always someone available to talk to. LAWYERS CONCERNED FOR LAWYERS provides Saskatchewan lawyers and their family members:
- CONFIDENTIAL assistance in effectively dealing with problems;
- The services of an INDEPENDENT professional consultant;
- Services provided without charge.
For confidential information and assistance, please call Homewood Human Solutions at 1-800-663-1142.
The Ministry of Justice and Attorney General is conducting a review of The Business Corporations Act and is seeking input respecting potential updates to the Act. Individuals and organizations with experience in the field of corporate law are invited to review the Discussion Paper and complete the online survey that are both found in the link below. The Ministry is asking that all responses be provided by February 28, 2019.
By Barbra Bailey, Director of Policy
Proactive Regulation of Law Firms
The environment in which a lawyer practises can play a significant role in determining professional conduct, yet the entities through which lawyers provide services have been largely unregulated. To address this, The Legal Profession Act, 1990 was amended in 2014 to include firms as members of the Law Society. According to that Act, one of the duties of the Law Society is to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members, which implies that the Law Society should be proactive in taking steps to assist the membership to meet those requirements. With the amendment to the Act, this duty now extends to law firms.
The Law Societies of Saskatchewan, Alberta and Manitoba (the “Prairie Law Societies”) have been working together to examine various approaches to regulating law firms (in addition to regulation of individual lawyers) and have determined that a proactive approach would allow both law firms and the Law Society to be more responsive to a diverse and profoundly changing environment, to enhance the quality of legal services, to encourage ethical legal practice and to foster innovation in legal services. Accordingly, the Prairie Law Societies have been working together to develop a consistent regulatory framework that incorporates that approach across the prairies.
As part of that work, the Prairie Law Societies conducted a pilot project in 2017 to test a new resource aimed at helping firms assess the robustness of their practice management systems and firm culture. The Law Firm Practice Management Assessment Tool (the “Assessment Tool”) helps firms recognize their strengths and provides “things to consider” in areas where opportunities for improvement have been identified. These include examples of how a law firm might put practices, policies or procedures into place, along with links to further resources that law firms can use to make improvements. By its design, the Assessment Tool is intended not only as an evaluation mechanism, but also as a convenient source of best practice resources for firms. The content of the Assessment Tool is designed to help firms think about how to best serve their clients, their lawyers and their employees; an exercise that should foster both public protection – in terms of ethical, efficient practice – and good business practices.
The goal of the pilot project was to test the functionality of the Assessment Tool and determine how it could be used in helping firms work with the Law Society to ensure sound practice management systems are in place. Pilot project participants were identified by randomly selecting firms of various sizes throughout the province, providing a representative sample of Saskatchewan firms. Those firms were then invited to voluntarily participate in the pilot project. Ultimately, 22 Saskatchewan firms participated. A similar process was followed in Alberta and Manitoba. Participating firms were asked to designate a representative to be the liaison for the pilot project. The designated representative’s task was to ensure the firm undertook the self-assessment process, using the Assessment Tool, and report to the Law Society about things that the firm has been doing well and areas identified as needing improvement.
The designated representatives were then asked to complete an evaluation of the Assessment Tool and conduct an exit interview about their experience. Overall, the feedback about the Assessment Tool was positive. The majority of participants said they thought the Assessment Tool would improve engagement with the Law Society (80%), increase general awareness and education related to the key objectives (84%) and help firms to improve their organizational policies and procedures (81%). Participants also had the opportunity to comment on any improvements they felt should be made to the Assessment Tool and the process overall. Much of that feedback focused on tailoring the Assessment Tool to ensure the content was appropriate for the size of the firm and making the process more efficient. Based on that feedback, the Prairie Law Societies have been working to refine the Assessment Tool and develop an appropriate regulatory framework to guide this process.
The ultimate goal of this initiative is to foster a more collaborative relationship between the Law Society and its members, and to help lawyers and firms manage risk so that the likelihood of conduct leading to a complaint or negligence is minimized. On December 7, 2018, the Benchers approved a framework for moving forward with law firm regulation that is centred on providing coaching and assistance through the Assessment Tool, but that would also allow the Law Society to address conduct issues at a firm level. Work will continue in 2019 to develop the details of this framework and further updates will be communicated to the membership as they become available.
Alternative Legal Service Providers
In 2017, a Task Team was appointed to explore the possibility of allowing non-lawyers to provide some legal services and develop recommendations for consideration by the Benchers of the Law Society and the Ministry of Justice about the appropriate role, if any, of non-lawyers in the provision of legal services. In carrying out its mandate, the Legal Services Task Team considered a wide range of possible approaches to address issues related to access to justice, consumer choice and effective regulation, all the while keeping the public interest central to its determinations. To assist the Task Team’s examination, an extensive consultation with members, legal organizations and other stakeholders within Saskatchewan’s justice system was conducted.
The Task Team released its final report in August 2018. The report includes a number of recommendations on how to improve the regulation and provision of legal services in the province.
The recommendations include:
- providing greater clarity to service providers about what legal services are regulated;
- expanding the list of exceptions to the prohibition against practicing law to recognize existing service providers;
- providing the Law Society with licensing authority to allow service providers to practice law with a limited licence on a case-by-case basis;
- modernizing the legislation regulating legal services to provide more flexibility for future developments in this area;
- creating guidelines to help educate the public about legal services; and
- conducting pilot projects to help develop and test the recommendations.
The Benchers of the Law Society of Saskatchewan accepted the recommendations as outlined in the Task Team’s final report on September 14, 2018. Bill 163, which would amend The Legal Profession Act, 1990 to enable the Law Society to implement the Task Team’s recommendations, was introduced in the Saskatchewan Legislature on December 3, 2018. Subject to the passing of Bill 163, the Law Society of Saskatchewan will implement the recommendations on an incremental basis, first beginning with pilot projects to better inform the development of the regulatory framework. The Law Society will continue to consult with the membership and other stakeholders throughout this process.