So where is your idolatry of the Supreme Court now, o ye Court Party?

Surely even the idolaters of the Supreme Court of Canada must be having some doubts this morning as to its  inerrancy. It was a classic case of “the way we make decisions is more important than the decisions we make.”

Not merely has the Supreme Court defended interprovincial trade barriers, with all their damaging effects on national wealth generation, and allowed them to be established on the flimsiest of grounds, but it has done so on the basis that the trial judge was a naughty boy for stepping out of judicial precedent to rule in favour of Comeau’s beer buying in the first place.

As the case summary reads:

Common law courts are bound by authoritative precedent. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. A legal precedent may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Not only is the exception narrow, it is not a general invitation to reconsider binding authority on the basis of any type of evidence. For a binding precedent from a higher court to be cast aside, the new evidence must fundamentally shift how jurists understand the legal question at issue.

                    This high threshold was not met in this case. The trial judge relied on evidence presented by an historian whom he accepted as an expert. The trial judge accepted the expert’s description of the drafters’ motivations for including s. 121  in the Constitution Act, 1867 , and the expert’s opinion that those motivations drive how s. 121  is to be interpreted. Neither class of evidence constitutes evolving legislative and social facts or a comparable fundamental shift; the evidence is simply a description of historical information and one expert’s assessment of that information. The trial judge’s reliance on the expert’s opinion of the correct interpretation of s. 121  was erroneous. To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert. And to rely on such evidence to rebut stare decisis is to substitute one expert’s opinion on domestic law for that expressed by appellate courts in binding judgments. This would introduce the very instability in the law that the principle of stare decisis aims to avoid.


Thus for the Supremes the case turns on the use of a historian’s evidence of what the trade provisions of the constitution mean – though at the same time for the past decades the Court seems to bend over backward to listen to the tribal lore of groups of a few hundred Indians to block economic development. “To cede the judge’s primary task to an expert” is the fault which the Supreme Court declares the basis of validating the restrictive trade practices of the provinces that block economic development.

In short, the economic stultification of Canada is defended by a rule that arises internally from the legal profession’s forms of decision making.

So the issue does not turn on an appreciation of the role that provinces play in the blockage of economic development. The Comeau case does not turn on the issue at hand, which is intrerprovincial trade barriers, but on the Court’s concern that nothing be upset by lower court decisions, but hey!, when the Supreme Court invents law out of whole cloth, that is their right and duty.


Look at the test the Supreme Court sets out for interprovincial barriers.

….Restriction of cross‑border trade must be the primary purpose of the law, thereby excluding laws enacted for other purposes, such as laws that form rational parts of broader legislative schemes with purposes unrelated to impeding interprovincial trade.

The restriction must only form a rational part of “legislative schemes with purposes unrelated to impeding interprovicnial trade”.

  • This is a bad decision on its merits: it establishes that the flimsiest rationale will suffice to colour a protective scheme that interferes with trade within Canada;
  • It is economically illiterate: it fails to consider the multi-billion dollar question at the core of the issue: the economic  consequences for the Canadian economic union of the law and the courts interfering with economic development.

If ever there was a case of the Court seeing the mote in the other guy’s eye and ignoring the beam in its own, it was the Comeau decision. Let us inhibit economic development for stare decisis. Economic barriers 9- trade freedom 0. How’s that Supreme Court working for ya?