“It is therefore with a great deal of trepidation that I find that the Gold Seal case was wrongly decided.”
Provincial Court Judge Ronald LeBlanc might well feel trepidatious. His honour sits on the lowest law court in New Brunswick, and Gold Seal is a Supreme Court of Canada decision that has stood as settled law since 1921.
In R. v. Comeau, LeBlanc J. boldly goes where no provincial court judge has gone before, at least not in active memory. On April 29, Comeau struck down the subsection in New Brunswick’s Liquor Control Act (LCA) that prohibited anyone to “have or keep liquor, not purchased” from the province’s Liquor Corporation. LeBlanc J. reasons there that the prohibition violates section 121 of the Constitution Act, 1867: “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.” And sure enough, as purported constitutional violations go, the LCA prohibition walks like a lame duck. The trouble is, higher authority, which is to say Gold Seal, says it doesn’t talk like one.
It all started when Gerard Comeau made a booze run to La neighbouring belle province, then motored home to Campbellton, N.B., with 15 cases of beer, 1500 ml. of whiskey (two bottles) and 1.5 litres of liqueur, all of it apparently much dearer if you buy it locally through “the Corporation.” The LCA provision permitted “liquor not in excess of one bottle or beer not in excess of twelve pints purchased” in another province or territory, even if you received it as a gift. Then again, apparently the N.B. police look the other way for trafficking (across staid lines, you might say) in four cases of Quebec beer or less. So, for New Brunswick drinkers, Gold Seal was already overturned, more or less, de facto if not de jure.
It must be said, too, that Justice LeBlanc’s decision is remarkable for more than its hierarchical chutzpah, however trepidatious. It is well written (which sadly is not a given in these documents, and excepting the judge’s multiple mistakings of “regards” for “regard,” although probably that settled rule has been overturned de facto, as well), and it provides a thoroughgoing, highly readable history of Canadian constitutional history. It would serve well in high school history and first-year law classes.*
As both the press and LeBlanc J. note, his decision, if it stands, could have far-reaching consequences regarding interprovincial trade. In Comeau, the judge points out that Gold Seal is the foundation of “marketing boards such as for wheat, eggs, milk and poultry, provincial liquor,” as well as federal trade barriers and other regulation of every sort of interprovincial trade. But of course there’s the rub.
His honour puts the dilemma plainly, himself: “ The current state of the law in Canada on the meaning and effect of section 121 of the Constitution Act, 1867 is clear and unambiguous: section 121 prohibits the establishment of customs duties affecting inter-provincial trade in the products of any province in Canada. The principle of vertical stare decisis [that is, the rule that courts generally must follow legal precedent, and especially decisions of courts above them in rank] mandates that I follow that law and not deviate from it unless an exception is warranted.”
The exception that Justice LeBlanc says permits him to “overturn” the current state of law is new evidence: “if the evidence that was presented before me at this trial had been brought to the attention of the justices of the Supreme Court of Canada in their deliberations on the meaning of section 121, particularly when the Gold Seal case was decided in 1921, the result would have been different.”
Gold Seal does seem to torture the syntax of s. 121 and its context in the nation’s foundational document, designed to establish a commonwealth of mutually supportive regions. It holds that in specifying that goods should “be admitted free” province to province, the fathers of Confederation meant “free of duties and other charges,” not free trade. And through the testimony of experts on Canadian constitutional history, albeit nearly a century after Gold Seal, Mr. Comeau (represented by the Canadian Constitution Foundation) argued convincingly that this is too narrow an interpretation, biased toward provincial self-interest.
Another notable quality of Judge LeBlanc’s decision is that, while it seems to be extravagantly revisionist and activist, in fact it is an unusual Canadian example of judicial originalism – of closely reading the text and historical setting of the constitution to determine what its writers intended. Generally Canadian constitutional law adheres to Lord Sankey’s dictum – in the famous case holding that “persons” entitled to sit in the Senate includes women – that the constitution is “a living tree capable of growth and expansion within its natural limits.” But that was on an appeal from the Supreme Court of Canada to the Judicial Committee of the British Privy Council – from the country’s highest appellate court to the Commonwealth’s highest. Provincial Court Judge LeBlanc quotes Lord Sankey, yet bases his decision to “overturn” Gold Seal on what defence experts in 2016 tell him the Fathers must have intended 149 years ago: a confederation in which each part of the country contributes its resources to the good, and coherence, of the federated whole. So it would appear that, legally speaking, “trepidation” means setting the cat among the pigeons.
*For further perspective on this case, from an historian, see Chris Moore’s blog. Chris has me coming down harder than I think I did here on LeBlanc J., but he adds welcome expertise on the historical evidence.