Ryan Manucha is pursuing his JD at Harvard Law School. He has worked in the trade policy section at the Canadian embassy in Washington and in the economic analysis group at the Ontario Securities Commission. He has a BA in economics from Yale University.
Let Canadians remember 2018 as the year that Gérard Comeau delivered to his fellow citizens a true gift: consumer freedom.
When the Supreme Court of Canada ruled against the resident of Tracadie, N.B., in his bid to fight the fines he incurred for bringing alcohol across the border from Quebec, he may have lost the battle. But he would go on to win the war – not just for himself, but for all beer-loving Canadians.
But the legacy of Mr. Comeau’s five-year-long court battle provides more than just a newfound liberty to travel intraprovincially with a couple of cases of beer in the trunk. It also reaffirms the primacy of interprovincial political structures, rather than our court system, to break down obstacles to free trade.
The deciding factor in his case was the Supreme Court’s long-standing interpretation of the Constitution’s Section 121, which provides that all goods made in one province shall “be admitted free into each of the other Provinces" – in which “free,” according to the judicial opinion, simply means that goods shall not face tariffs when crossing provincial or territorial borders. So, although his legal team challenged that definition, the reality is that his situation – non-tariff measures, such as personal exemption limits on alcohol brought in from another province – wasn’t covered by that interpretation of Section 121, as the country’s highest court reaffirmed.
It was an expected result, in a way. The Court, which seeks to be objective and apolitical, also prefers not to strike down laws that impede the flow of goods; so long as there is a governmental purpose other than restricting trade, the Court leaves the trade-inhibiting law alone. In Comeau, the purpose behind the limit had been to ensure that the New Brunswick government could monitor the provincial liquor trade – an explanation the Court found satisfactory.
Without a constitutional amendment, the Court is unlikely to change its tune on how Section 121 should operate, and the odds that we would reopen the terms of our founding document are extremely low. There was an attempt to redraft Section 121 during the Charlottetown Accord so as to create a strong form of free trade within Canada. However, this failed, as did the Accord itself, and for the time being, the idea of a constitutional amendment has been laid to rest.
But the Supreme Court’s unanimous decision against Mr. Comeau in April wouldn’t be the conclusion of his free-the-beer fight. Barely three months later, Canada’s premiers took up the issue of interprovincial alcohol limits for personal consumption at the Council of the Federation in July, 2018. During its annual meeting in Saint Andrews, N.B., the provincial leaders agreed, at least in vague terms, to hike the personal exemption limits for alcohol when crossing provincial boundaries. Finally, in early December, the Council announced that seven provinces and territories would join Alberta and Manitoba in eliminating personal exemption limits altogether, while the remaining four would increase the exemption amounts significantly.
The legacy of Comeau shows the importance of such political forums, as well as intergovernmental commitments such as the Canadian Free Trade Agreement (CFTA) in providing economic unity. The political solution arrived at by the premiers is a shining example of what is possible when national willpower gets behind the long-standing aspiration of a Canadian economic union.
Despite this success story, and the long-standing dreams of internal free trade in Canada – Father of Confederation George Brown called on fellow lawmakers to “throw down all barriers between the provinces” in 1865 – the system we have in place certainly isn’t perfect. TheCFTA has a dispute-resolution mechanism, but provinces have included a slew of exemptions that have made a plethora of issues untouchable by the formal complaints system; even embarking on a dispute for an infraction of the agreement is a non-trivial process. And in December, Manitoba Premier Brian Pallister and the Macdonald-Laurier Institute’s Brian Lee Crowley proposed innovative reforms to the CFTA’s political mechanism. And it is unclear when – or even if – the country’s premiers would have done away with personal exemption limits if Mr. Comeau hadn’t endured his five-year-long saga in the court system.
But he shows us that the current model can work. And that’s worth raising a glass to.