By Bradley Miller
The Supreme Court declined this month to radically change the way that Canada works. In R v Comeau, lawyers for a New Brunswick man ticketed for bringing too many bottles of beer into the province from Quebec urged the justices to use the history of the Canadian federation to improve its future, at least as they saw it. They asked the court to find in section 121 of the Constitution Act 1867 – a long-ignored little provision that says that the products of each province shall be “admitted free” into each of the others – a right to largely-unfettered free trade between provinces, a move that would put at risk a vast array of regulatory schemes that in one way or another end up limiting or burdening the flow of goods across Canada, such as the beer that the RCMP hauled out of Gerald Comeau’s car after he was pulled over in October 2012.
Many people loathe the kinds of restrictions and regulations that might have been killed by Comeau, and there’s lots of evidence that they massively hike costs on consumers and badly damage Canadian productivity. So the notion that the constitution could bridge the boundaries that are too often created by provincial laws and that the justices could find a right to economic liberty in the way that they’ve laudably found rights to so many other pieces of modern Canada was dazzlingly tempting to many of our brightest commentators and public policy thinkers.
The case drew even more attention because of the role of history and historians in the litigation: elements of the pro-free trade argument entailed an originalist analysis, a technique which is often a tool of social conservatives seeking to squash rights for women, LGBT people, and others, and very uncommon in Canadian constitutional cases. In the telling of Comeau’s lawyers, free trade wasn’t a new right at all, but rather the recognition of one that had been there since the Fathers of Confederation and Britain’s legislative draftsman finalized the British North America Act in 1867. They backed this point up in the New Brunswick trial and the Supreme Court appeal using the Confederation debates of the 1860’s, the expert testimony of a Canadian historian on nineteenth-century trade and the intentions of the BNA Act’s framers, as well a secret 1924 letter describing a clandestine meeting between judges and politicians that purportedly delegitimized a foundational precedent on section 121. Their case, in other words, was that the court should restore a key plank of the original Confederation deal.
Comeau’s lawyers succeeded in the provincial court, where a judge found in their favour and declared the New Brunswick liquor law used to seize the beer unconstitutional. But they didn’t sway the Supreme Court, and his side lost there 9-0, an outcome that was predictable to many who watched the free trade argument get pounced on and gutted by the justices in oral arguments last December.
While the results have disappointed many, some critics have singled out the court’s treatment of history for special attack. In the run-up to the Supreme Court hearings, legal scholars Benjamin Oliphant and Leonid Sirota called the defence’s version of history “a very strong originalist case.” In the wave of criticism since the case was handed down, Sirota has called the court’s opinion an “unmaking” and “disparagement of history” and the court’s take on the historical evidence “bizarre.” Meanwhile, political scientist Emmett Macfarlane described the court’s treatment of that evidence dumbfounding.
I don’t agree with either the strength of the originalist case or its alleged abuse by the justices. Instead, as I try to show below, the courts took history and historical evidence and inquiry seriously in Comeau. In fact, historical analysis was central to the case against Comeau’s right to bring beer over the provincial boundary. We may not like the policy outcomes of the Supreme Court’s decision, but if unfettered free trade didn’t triumph, it’s not because the justices decided to ignore Canada’s past.
Duelling Histories and Historians of Trade
Whatever the policy ramifications of the case, Comeau has done constitution buffs a fundamentally good turn by sparking a new wave of writing about the creation of the 1867 constitutional order. In what could charitably be described as a dry period for historical writing on the constitution, Comeau spurred professors, lawyers, and public historians to reargue key elements of the conception and legislation of the BNA Act, especially the relationship between Confederation and economic development.
In fact, two very different versions of history emerged from two historians involved in the litigation. Comeau’s lawyers wielded the first version in the New Brunswick court and again in Ottawa. It was spearheaded by Andrew Smith, formerly of Laurentian’s history department and now of the University of Liverpool’s management school and the author of a hugely impressive book on the role of British business interests in Confederation. In this telling, the Fathers and framers of Confederation were classically liberal devotees of free trade – so much so, that they deliberately used the words “admitted free” in section 121 in order to prohibit both tariff and non-tariff barriers to interprovincial trade rather than a narrower term like “free from duty” that would only bar the provinces from imposing customs duties on each other’s goods. In other words, the Fathers and framers intended to make trade liberalization a sweeping constitutional force that would limit the legislative powers of Ottawa and the provinces that are set out in sections 91 and 92 of the BNA Act.
In arguing this point, Smith used the histories of British liberalism and laissez faire economics and the public statements of key politicians like Sir John A. Macdonald and Sir Alexander Galt to demonstrate what he called “the thinking of the Fathers of Confederation.” In the defence view, that thinking of the 1860’s mandates a sweeping revision to Canadian federalism now. New Brunswick provincial court judge Ronald LeBlanc agreed.
The second version emerged best in an affidavit given by historian Christopher Moore, author of two widely-read books on Confederation and several others on Canadian legal history and a two-time winner of the Governor General’s Award for Literature. Moore was retained by the Alberta government when litigants from Saskatchewan started using the same arguments as the Comeau defence team to challenge subsidies that the Alberta Gaming and Liquor Commission provides to craft breweries in the province, arguing that they were tantamount to trade barriers and were forbidden under the new and expanded (or old and revived, depending on your view) version of section 121 espoused in Judge LeBlanc’s decision. Once Alberta intervened in Comeau, Moore’s report became central to their arguments about the historical background of section 121 at the Supreme Court.
Simply put, Moore argued that Canadian views on trade and trade barriers were far more nuanced than the defence proposed. Although many politicians endorsed free trade in many commodities, their proposals were never absolute and never barred the kinds of non-tariff barriers that the defence lumped in with customs duties as equally anathema to British North American statesmen in the Confederation era. Besides which, colonial governments intervened in the economy and, before and after Confederation, raised tariffs on international goods; before and after Confederation those tariffs were essential sources of government revenue. In other words, the Fathers were far from free trade absolutists.
At the Supreme Court, the justices preferred the latter view. As the justices concluded, “the historical evidence, at best, provides only limited support for the view that ‘admitted free’… was meant as an absolute guarantee of trade free of all barriers.”
Having examined the written submissions of both sides, it’s difficult to disagree with the court. With due respect to the constitutional scholars who think the court ignored a “very strong originalist case” and “unmade” and “disparaged” history, and who found the court’s treatment of the past dumbfounding and “bizarre,” I don’t think any of those allegations are sustainable.
First, the pro-Comeau version of Canada’s trade history over-extended the evidence. That is, it called on the court to conclude that because some Fathers and framers were against many tariffs much of the time, they were hostile enough to regulation that might burden interprovincial trade to implant in constitutional text a sweeping restriction on governments’ legislative power that somehow didn’t come up in the Confederation debates or in any other pieces of Confederation-era evidence. To be clear, there were flashes of a tenuous circumstantial case in the defence arguments, and they certainly appeal to those of us who think the Fathers and framers intended to house the deepest powers of economic regulation in the federal government in order to create a genuinely national economy and that post-1867 courts wrongly read down the federal trade and commerce power.
But these flashes didn’t successfully make the historical case, and in so doing they exposed the challenges that originalists face in trying to document a singular and enforceable original intention or original meaning in a document that was as much-Fathered as the BNA Act. In other words, the outcome of Comeau may be disappointing for those of us who don’t like the status quo policy-wise, but the court’s historical take is anything but “bizarre.”
Nor did Comeau disparage the role of history in constitutional law. That is, the court didn’t find a clear intention on the part of the Fathers and framers to prohibit non-tariff trade barriers or that the meaning of the phrase “admitted free” in the 1860’s included freedom from those barriers. If they had, and decided that original intent and original meaning didn’t matter or mattered less than contemporary policy concerns or the weight of case law, the originalists might be justifiably angry. But this is a decision that didn’t denounce originalism because it didn’t need to; there wasn’t a conflict between the strongest historical evidence about original intent and meaning and the case that prevailed.
Historical Scandal and Historical Evidence
The drafting and original intentions behind section 121 weren’t the only aspects of history that played a role in the case. At the trial in New Brunswick, the defence tried to use an undiscovered political scandal of the 1920’s to delegitimize a foundational Supreme Court precedent which they sought to overturn. Since Canadian constitutional litigation doesn’t often include secret historical documents charting seedy and surreptitious events, it’s fair to say that this one stood out. It did not, however, have much effect on the case – but not, again, because the courts ignored history.
At issue was a letter now housed in Library and Archives Canada written by then-Justice (later Chief Justice) Lyman Poore Duff in 1924 to the British judge Lord Haldane, known in some circles as the “wicked stepfather of the Canadian constitution” because of his role in neutering federal economic regulatory authority in division of powers cases. In the letter, Duff alludes to the case of Gold Seal Ltd. v. Alberta decided by the Supreme Court in 1921. Gold Seal was the first decision to interpret section 121 – the bedrock, really, of the case law which the Comeau defence team sought to overturn. The precedent was a problem for the defence because in it several of the justices construed the words “admitted free” to merely prohibit interprovincial tariffs. As a result, Gold Seal is a much, much narrower take on section 121 than Comeau’s lawyers wanted to implement.
And they saw historical evidence as a means to destroy the influence of that case.
Here’s why. Duff mentioned in the letter a meeting between two of the Gold Seal justices who narrowly construed “admitted free” and the Minister of Justice shortly before the case was handed down. In the meeting, the minister reportedly asked the justices how the case would be decided and, when they told him, it enabled the government to change its policy just in time to save the law that was being challenged; it’s arguably implied that the justices even offered advice on how to do so.
The Comeau defence tried to use this allegation of improper connections between judges and politicians to argue that Gold Seal need not be treated as binding precedent by the courts now.
Judge LeBlanc didn’t agree, and concluded that the letter was irrelevant to the case. However, he did so after engaging in the kind of evidentiary analysis that historians undertake constantly when deciding how seriously to take pieces of archival information. As LeBlanc noted, Duff’s motives for making this allegation were questionable and there was no evidence tendered that he actually sent the letter to Haldane, which raises the question of how seriously he himself took the story. In fact, it’s not clear how Duff even knew about the meeting, since he didn’t reveal his source. Nor is there much other detail in the letter about the meeting that would help confirm his view. Nor were there any outside sources tendered to LeBlanc that would support the idea that the meeting even happened at all. All in all, LeBlanc found the letter to be, as he put it, “unsubstantiated and possibly unreliable hearsay.”
After losing on this point in the trial decision, the defence invoked the letter in their Supreme Court submissions anyway. They told the justices that the Duff letter “stains the Gold Seal Interpretation with possible judicial misconduct” and the case “cannot be regarded as anything other than political expediency and not a judicially reached determination.” Whatever your ideological take on the role of history in constitutional interpretation, that’s over-stretching the evidence yet again. As far as litigation tactics go, it also smacks more than a little of desperation. The Supreme Court didn’t even touch this part of the argument.
The Weight of the Past
The one big element of the court’s engagement with Canadian history that I haven’t talked about is precedent – the accumulated weight of case law, not just on section 121 but on federalism generally and the power of regulation in particular that has emerged since Confederation. The justices keenly felt the burden of this mass of law, as they made clear in oral arguments by asking about the implications that broadly interpreting section 121 would have on precedents that go back to the founding era of the federation. They reflected that concern in their ruling, the first half of which delivers what Sirota accurately calls a “benchslap to the trial judge,” for deciding that the evidence of one historian on the original intent behind the section could free lower court judges like him from the obligations of following precedent. While Sirota also calls that spanking “gratuitous,” many others who prize the stability that comes with stare decisis won’t agree.
There’s lots of good arguments against originalism as a method of constitutional interpretation. These include, as I’ve argued here before, that many of the Fathers didn’t intend or believe that their views should shape the way that courts gave meaning to the BNA Act in their own lifetimes, let alone forever thereafter. There’s also the argument, put to one of the lawyers in Comeau by one of the justices, that this methodology might leave judges needing a resident historian to co-preside on the bench in constitutional cases, handing control over what may be the most important part of our law to just one type of expert. And then, of course, there’s the fact that the famous “living tree” is so firmly embedded in Canadian law that even the defence lawyers in Comeau downplayed the originalist nature of the trial judge’s ruling which they sought to uphold. So why upend the methodological status quo? While the American battle between originalists and living constitutionalists makes for great drama, surely we Canadians have re-learned over the last year and a half to revel in our own blandness.
But in the end, as I’ve argued, the Supreme Court didn’t pick a side in that fight, because they didn’t need to.
Bradley Miller is an assistant professor of history at UBC. His book, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914, was published in 2016.