There will be no one happier with the Supreme Court of Canada’s decision on the Comeau case about taking beer across provincial boundaries that B.C.’s NDP Premier John Horgan.
I’m not saying Horgan is against citizens grabbing a case of suds and bringing it home from another province, but in crafting their decision to keep that act illegal, the court gave Horgan the arguments he needs to block the Trans Mountain Pipeline.
The argument for freeing the beer was that section 121 of the constitution clearly states that goods can flow freely from one province to the next. Yet the court said that provincial laws can stop that free flow or hinder it if the laws designed to do so have as their essence and purpose, a different act such as health.
Stand-alone laws that have the effect of restricting trade across provincial boundaries will not violate s. 121 if their primary purpose is not to impede trade, but some other purpose. Thus a law that prohibits liquor crossing a provincial boundary for the primary purpose of protecting the health and welfare of the people in the province would not violate s. 121.
Now take that and apply it to British Columbia’s fight against the Kinder Morgan pipeline.
Section 92 of the constitution is clear, pipelines are a federal responsibility and wholly within the federal jurisdiction. Or at least they were.
In their endorsement of cooperative federalism over the plain meaning of the law, the court has given Horgan all he needs to not only argue but win. He and his government claim that they are concerned about the health of British Columbians, about the environment and all he needs to do is make that case, quote the court back to itself.
The Supreme Court has boxed itself and the federal government in here. They were so determined not to rock the boat when it came to the possible impact of the Comeau case on things like supply management that they failed to see what they were setting themselves up for.