Unmaking History

23 04 2018

Leonid Sirota (Auckland University of Technology Law School) has published a great piece on the recent Comeau decision in Canada.

Double Aspect

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restriction on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll 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.” But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal…

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