It is a stunning decision if you consider what it means, in ruling against Gerard Comeau, the Supreme Court of Canada said that it remains illegal for a citizen of this country to buy a legal good in one part of the country and move it to another part of the country.
We aren’t talking about illegal substances, we are talking about the widely available product known as beer.
It seems the temperance movement is alive and well.
In coming to their decision, the court not only relied on the shoddy and controversial Gold Seal precedent, one arrived at via political interference in 1921, but also by looking to how the law being struck down could impact other laws.
At the core of this argument is what section 121 of the constitution means. The section itself is pretty easy to understand, it is plainly written.
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.
That clearly means the Fathers of Confederation did not want trade barriers between the provinces, a single economic unit was one of the main arguments and reasons for Confederation. Yet the judges make clear, early on in their ruling that they are concerned about the political fall out of reading the constitution and taking the words at their plain meaning.
 The answers to these questions have broad implications. If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. Agricultural supply management schemes, public health driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid.
The justices are signalling here that political considerations will trump all when it comes to their decision.
Fearful of potentially upsetting the dairy cartel and other regulatory measures the court set about arguing that the term, “admitted free,” in section 121 cannot mean free trade in Canada but rather the end of tariffs.
It’s funny, the constitution doesn’t say that, is says plainly that all goods must be admitted free. While free can have many meanings, none of those meanings is without tariff.
Canadians are often smug about our Supreme Court, they point to the naked partisanship of the American court and claim, falsely, that our court is not political. It is.
There can be political decisions on this court reached along more partisan lines and then there are cases like this, where the court has sought to render a decision that is at odds with the law and our constitution in order not to upset the status quo.
It isn’t the first time I’ve seen this, sadly, it won’t be the last.