R. v. Comeau: Good Law, Bad Application

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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 ConstitutionThe 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, [2013] 3 SCR 1101.

5 Comeausupra 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&gt;, archived: < https://perma.cc/ZWT8-TMXN&gt;.

7 Constitution, supra note 3.

8 Comeausupra note 1 at para 89.

9 Ibid.

10 Ibid at para 107.

11 Reference re Securities Act, 2011 SCC 66 at paras 54-60, [2011] 3 SCR 837.

12 Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793.

13 Ibid at para 58.

14 Ibid.

15 Comeausupra note 1 at para 72.

16 Ibid at para 89.

17 LCAsupra note 2.

18 Ibid.

19 Comeau, supra note 1 at para 121.

20 Ibid.

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, [2010] 2 SCR 536).

23 Comeausupra 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).

27 New Brunswick Liquor Corporation Catalog, online: ANBL <https://www.anbl.com/catalog&gt;, archived: <https://perma.cc/3GXW-7XQX&gt;.

28 Except, of course, to ensure the purchaser is of legal age and persons are not driving while intoxicated.

29 Comeausupra 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&gt;, archived: <https://perma.cc/JH76-2PNP&gt;.

32 Comeausupra 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&gt;, archived: <https://perma.cc/92CE-5VH4&gt;).

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&gt;, archived: <https://perma.cc/7LRM-C2A6&gt;).

35 Constitution, supra note 3, s 92(2).

36 Comeausupra note 1 at para 124.

37 Supra note 2, s 35(2).

38 Comeau, supra note 1 at para 109.

New Ethics Ruling

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The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, we’ve listed the ruling below but it can also be found in our Ethics Rulings Database.

If you have any questions or concerns  regarding this post, please contact the Law Society at (306) 569-8242 or 1-833-733-0133.

Date: December 6, 2018
Cite as: 2018 SKLSPC 10
Classification: Undertakings and Trust Conditions, Rule 7.2-11
Practice Area: Family Law

Ethics Committee Ruling:
This was a Request for Ruling by Lawyer X. Lawyer X received disclosure on trust conditions from Lawyer Y. Lawyer X was concerned with the trust conditions for the reasons as follows:
1. They purport to place trust conditions retroactively on documents received in the past;
2. They place trust conditions on material from court services;
3. They place trust conditions on documents filed with the court; and
4. They purport to attach trust conditions to all disclosure which may be received in the future.

The Ethics Committee reviewed the trust conditions and determined that while it is inappropriate to impose trust conditions on documents provided in the past, Lawyer Y has revised their trust condition template letter and rectified this issue. Lawyer Y does have a duty to draft clear and unambiguous trust conditions. In this instance, the Committee did not find there were any other issues with the drafting of Lawyer Y’s trust conditions. If Lawyer X does not wish to accept the trust conditions, they can return the documents and either request an amendment or make the argument to the Court about why they have not received disclosure and allow the court to decide. In the event Lawyer X already has court documents that Lawyer Y provided by way of disclosure, Lawyer X should return the disclosure to Lawyer Y and advise that they already have their own copy and therefore they do not need them.
With respect to imposing trust conditions on future disclosure, the Ethics Committee noted that these are used regularly in the court context in both criminal proceedings and family services proceedings as they allow for timely disclosure. Lawyers may exchange disclosure when they have it and not return to the office to send a cover letter with trust conditions. To create a ruling that prohibits this would put an onerous obligation on prosecutors to the detriment of the accused.

Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know

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With travellers at Canadian airports and border crossings subject to increasing scrutiny,[1] 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.

[1] 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/

Following Legal Sourcery via Email

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When the Law Society of Saskatchewan transitioned over to our new website design, we decided to bid farewell to our old news section, which used to be hosted on the home page. We found that most of these entries were being posted both in the news section and on our blog, Legal Sourcery. In an effort to cut down on duplication and streamline our communications to our membership and the public, Law Society news items will now appear solely on the blog.

Now that Legal Sourcery has become the main hub for Law Society news, it seems like a perfect time to get more acquainted with WordPress. In a few quick steps you can be following Legal Sourcery, automatically making life that much easier simply by being able to access our news items and articles directly from your inbox.

Following the blog is really easy and this article will walk you through the process.

  1. Look in the sidebar on the right and scroll all the way down to the bottom. You will find a section called “Follow Legal Sourcery via Email”. Enter your chosen email address here. WordPress gives you very fine grained control over how frequently you get emails, so in this case, I am going to enter my work email address.
  2. After you enter your email address, click “Follow”. In the bottom right hand corner of the screen, you will receive a notification reminding you to check your email.
  3. You will receive an email shortly. When you receive it, you will notice a few things. To follow the blog, click “Confirm Follow”. If you follow many WordPress blogs, you may want to sign up for a WordPress.com account as it makes keeping track of many blogs much easier. And, if you receive too much email (or not enough), you can adjust your email subscription options.follow-blog-confirm
  4. You have three options when you subscribe to blogs via email. You can receive an email as soon as we post a new article, or you can choose to receive either daily or weekly digests.

CBA Mid-Winter Meeting 2019 – The Law Society Will Be There!

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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

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.

New Newsletter on CanLII – Building Insight: Construction Law from Glaholt LLP

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By Sarah Sutherland; Reposted with permission from the CanLII blog

We are happy to announce the addition of the Glaholt LLP newsletter Building Insight: Construction Law to CanLII’s commentary section, CanLIIDocs.

This quarterly newsletter will provide commentary on Ontario cases focusing on construction-related litigation. You can read the first issue here.

Please join us in thanking the members of Glaholt LLP, especially Andrea Lee, for sharing their expertise and actively contributing to open commentary.

Discover the New Law Society Website – Legal Resources

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The Legal Resources page is your portal to all sources of law. Some sources are free for public use, others are licensed and you will need to log in through the Members Resources page. The latter are identified as such.

Let’s start at the top with three prominent links under the heading Legal Resources:

  • Catalogue Search – Search our Primo Library Catalogue for books, seminars, conference proceedings, journals, government publications, and online resources
  • CPD Materials – Full text access to a wide range of Continuing Professional Development papers. These papers are often a good way to familiarize yourself with a new area of Saskatchewan law
  • eBooks (members) – We currently host collections of legal ebooks from Irwin Law, Emond and WestlawNext Canada

A bit further down, you will see the heading Find, which includes six categories:

  • Cases – Links to CanLII, Case Mail, Saskatchewan Cases, vLex Canada (members), and WestlawNext Canada (members)
  • Articles – Links to CanLII Commentary, HeinOnline (members), Index to Canadian Legal Literature (ICLL) (members)
  • Sentencing Range – Links to Rangefindr (members), Saskatchewan Court of Appeal Sentencing Digests
  • Forms and Precedents – Links to O’Brien’s Internet (members), Queen’s Bench Forms
  • Legislation – Publications Saskatchewan (public access to all Saskatchewan Legislation), Saskatchewan Bills, Saskatchewan Regulations
  • Ebooks – all our subscription ebook sources (included in “eBooks” above), and CanLII Commentary

The next heading going down the page is Research Tools & Resources. This portion of the page contains links to some key materials, Members Resources and Law Society Databases, that overlap with the material listed above. Also included are our Subject Resource Lists, which will be of use if you are working in an area of law you are unfamiliar with, and Legal Research Guides, which are of general use in learning legal research.

Further down again, close to the bottom of the page, there are four boxes that contain links to important policies and additional information:

And finally, on the right-hand panel, the Legal Resources page has a sidebar with additional important information. Near the top you will see the heading About Us – which includes links to our hours, locations, and contact info for individual staff members.

A little further down there are Related Links, which are quick links to some key free resources. Some of these are included in other parts of the page, and others, such as Family Law Saskatchewan, are not.

At the bottom of the sidebar, you will see Popular Resources, which includes such things as rules, forms, manuals & guides – again, some of which are included in other parts of the page.

And finally, at the top of the sidebar, there is a blue box with the text Need Assistance? Ask a Librarian. This includes a link to our Reference email. We hope to hear from you soon!