Thoughts on the Case of the Queen v. Comeau

27 08 2015

For the last few days, I’ve been testifying as an expert witness in a Canadian constitutional court case that has captured the imagination of the country and which has serious implications for a number of key economic sectors. The court case is about the section of the Canadian constitution that declares that there should be free trade among Canada’s ten provinces. It’s rare for a business historian to be called as an expert witness in a court case. However, since my PhD thesis was on the role of business in the creation of the Canadian constitution, I’m qualified to speak to what the framers of the Canadian constitution intended when they inserted this section (s.121) into the 1867 constitution. My view is that since the creators of the Canadian constitution wanted to create a comprehensive economic union of the various British colonies in North America, the various laws that restrict “imports” of goods from one Canadian province to another should be considered unconstitutional. (This particular “test case” centres on the conviction in 2012 of a man who purchased some beer in Quebec, a Canadian province, and then drove this beer into New Brunswick, another Canadian province, where he was arrested by the RCMP).

I’ve been astonished by the extent to which the Canadian media is discussing this case (see here, here, and here). Last evening, Canada’s 24 hour news channels were abuzz with discussion of the case. For part of yesterday, our case was the most discussed issue in Canadian social media, ahead of the ongoing federal general election. Moreover, the topic has gone viral in ordinary conversations. As I write this I am sitting in a roadhouse in between the location of the trial, the tiny border town of Campbellton, and the nearest international airport, which is in Moncton. The other diners, who don’t know that I am involved in the case, are energetically debating its merit. One of the people I just overheard has speculated that if free trade in beer among Canadian provinces is established, the brewing companies will no longer be required to operate small breweries in each province. This individual, who appears to be of university-student age, is predicting consolidation and rationalization in the industry should the defence win in this trial. (The defence wants the court to declare inter—provincial trade barriers to be unconstitutional). His friend is talking about the implication for dairy products and the other goods that are currently fettered by internal trade barriers. The implication is that if inter-provincial free trade and a Canadian common market is established, a wide range of industries will have to be restructured. I expect that regardless of the decision by the judge, the case will ultimately make its way to the Supreme Court of Canada.

I’ve listened to a number of radio stations, French-language and English-language, during my drive today. Interspersed among the music and weather reports is discussion of the ongoing trial.  The DJs are also reference discussion of the trial on Facebook and other social media. A DJ at a radio station said “For anyone who is at the trial today, here is this song”. He proceeded to play a catchy pop song by Mark Ronson and Bruno Mars called “Uptown Funk.” I don’t know how much meaning should be read into the DJ’s decision to play this song in honour of the ongoing trial.  It would probably be a mistake to ascribe any political significance into the verbal machine-gun fire that is commercial radio DJ blather.  However, I do know that the people in the local community I spoke to are uniformly in favour of being able to purchase beer in Quebec dépanneur.

As I prepare to fly back to Europe, I reflect that I am honoured that my academic research has been used in this way in a court case that has important implications for many companies, and individuals, in an important G-20 economy. My guess is that future economic historians may regard this case as the Canadian analogue of the Cassis de Dijon case in EU law. (That court case helped to create the European Common Market).

If you would like to read the Expert Witness Report that was submitted to the court,it will soon be available online.

P.S. I would like to thank the staff of the trial hotel, Campbellton’s Quality Inn, and Brasserie 1026, the adjacent restaurant, for all of their help during my stay in their community.

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6 05 2017
Ben Oliphant on Originalism and History | The Past Speaks

[…] the R. v. Comeau court case (see my blog posts about being the expert witness in this case here), talks about the competing schools of thought about how to interpret the text of written […]

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