The Past Speaks

The Supreme Court of Canada today published its ruling in the case of Her Majesty the Queen v. Gerard Comeau. For press coverage, please see here, here, and here. I was the historical expert witness at the 2015 court case that was the subject of the appeal decided today.  Here is my initial reaction (keep in mind I am a non-lawyer).

Although Mr. Comeau lost, the court accepted much of my historical interpretation (see paragraphs 55 to 66 of their decision). In paragraph 67, the Court expands the meaning of section 121, perhaps not as much as the lawyers I was working with might have wanted, but certainly enough to prohibit all interprovincial trade barriers that are protectionist in intent.

In paragraph 67, the Court wrote:

We conclude that the historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff-like measures. At the same time, the historical evidence nowhere suggests that provinces, for example, would lose their power to legislate under s. 92  of the Constitution Act, 1867  for the benefit of their constituents even if that might have impacts on interprovincial trade. The historical evidence, at best, provides only limited support for the view that “admitted free” in s. 121  was meant as an absolute guarantee of trade free of all barriers.

In paragraph 106, the Court wrote:

We conclude that a purposive approach to s. 121  leads to the following conclusion: s. 121 prohibits laws that in essence and purpose restrict trade across provincial boundaries. Laws that only have the incidental effect of restricting trade across provincial boundaries because they are part of broader schemes not aimed at impeding trade do not offend s. 121  because the purpose of such laws is to support the relevant scheme, not to restrict interprovincial trade.

It seems to me that this interpretation of s.121 is very similar to the High Court of Australia’s ruling in the 1988 case of Cole v. Whitfield, which revolved around the interpretation of Section 92 of the Australian constitution, which provides for free trade between Australia’s states. (For a comparison of these parts of the Canadian and Australian constitutions, see here). That case involved a fisherman who broke a state environmental law when he imported crabs from another Australian state. The crabs in question were of legal size in the originating state but illegal in size in his home state. The fisherman’s lawyers argued that the state law, which had been intended to protect the crab population, was a protectionist and unconstitutional trade barrier. In this decision, the court ruled that the Australian constitution prohibited only those barriers to interstate commerce that had either a protectionist purpose or effect. Australian courts now apply the so-called “Cole v. Whitfield test” in judging section 92 cases. As in today’s Supreme Court ruling, the Australian court decided that purpose of the law restricting internal trade was crucial in deciding its constitutionality.

Turning back to today’s SCC decision, I was pleased that the Court accepted the view that research on historical context similar to that I provided in my 2015 expert testimony is helpful in interpreting the meaning of the constitution. The Court made an interesting and important point about the role of historical research in constitutional interpretation: it ruled that while historical information of the type I shared was not, by itself, enough to overturn an existing SCC decision, it does matter. In a sense, this part of the ruling was a victory for advocates of some variant of the interpretative doctrine called originalism.

I must say that it was an honour to have worked in the case with a fantastic group of lawyers.