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Provincial relations loom large in Supreme Court fall cases

The Supreme Court of Canada is about to hear a case that could cause the fall of interprovincial trade barriers.

Sean Kilpatrick/The Globe and Mail

When retired steelworker Gérard Comeau of New Brunswick drove over the Restigouche River into Quebec to buy beer and liquor in the fall of 2012, he fell into an RCMP snare.

Mounties in both provinces had teamed up on a special project. On the Quebec side, officers kept an eye on New Brunswickers as they purchased liquor. Then, they followed them in unmarked cars onto the J.C. Van Horne Bridge. At that point, they radioed ahead to their colleagues on the other side of the river, giving them the licence plate number and a vehicle description.

Police in New Brunswick caught Mr. Comeau with 354 bottles and cans of beer and three bottles of liquor, and fined him $292 under a provincial law that sets a limit of 12 bottles of beer or one bottle each of wine and liquor bought outside the provincial liquor authority. But Mr. Comeau challenged that law in provincial court, arguing that Canada's founding Constitution protects free trade between provinces. And he won.

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This fall, the Supreme Court will hear New Brunswick's challenge of Mr. Comeau's legal victory, in a case that could cause the fall of interprovincial trade barriers affecting other products, such as milk and eggs.

"Comeau has the potential to be groundbreaking for our federation," says Hugo Cyr, dean of law and political science at the University of Quebec at Montreal. "What kind of barriers can provinces impose on products imported from other provinces? To what extent does the Constitution provide that Canada must be a common market?"

It is not the only case to address a sore spot in the Canadian federation during the fall session that begins on Tuesday.

The court is also being asked whether a 1969 deal in which Quebec bought hydro-electric energy from Newfoundland and Labrador is unfair to the latter and must be renegotiated. The two provinces set a fixed price for energy produced by the Churchill Falls dam, decreasing over the 65-year term of the contract. Hydro-Québec, the provincial power utility, is projecting a windfall of $245-billion (in 1989 dollars) over the life of the contract, according to a court filing from Churchill Falls (Labrador) Corp. Ltd.

While one is a constitutional case and the other is rooted in Quebec's civil code, the two cases will both help shape relationships between provinces, according to Peter Russell, a political science professor emeritus at the University of Toronto.

"What kind of federation are we going to be? Are we going to have what we used to call 'comity' in our federal union, treating each other with respect? Are we going to be a decent, friendly kind of federation?"

He said he was stopped by the Ontario Provincial Police around 1959 as he brought beer from Quebec into Ontario, where he intended to give it to friends parched from a beer-workers strike. He told the officer the law violated the Constitution and he would see him in court, but the officer chose not to give him a ticket.

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Section 121 of the 1867 Constitution says all goods manufactured from one province are to be "admitted free" into any other province. New Brunswick's Public Prosecution Services argues in a court filing that Canada's model of "co-operative federalism" depends on a flexible interpretation of the Constitution.

In the Churchill Falls case, the key issue is whether Quebec's civil code requirement that business deals be done in good faith obliges the province to renegotiate. Nalcor Energy, a provincial Crown corporation based in St. John's, owns Churchill Falls Corp. Ltd., and says the energy market has changed in a way that was inconceivable in 1969.

Energy was then a "public good with no real market value," it says in a filing to the Supreme Court. Today, Hydro-Québec is "a profit-centre generating billions of dollars selling power to its own Quebec consumers, and billions more exporting to previously non-existent spot markets at 20, 30, even 40 times the Contract price." But two Quebec courts, including the Court of Appeal, rejected that claim, saying there was no requirement that the contract be renegotiated, partly because the parties foresaw price fluctuation when they made the deal.

Dean Cyr says the case could have a far-reaching impact. "It will pit the security of contracts and foreseeability of law against the protection of those who end up losing on the deal. This could obviously have an impact on the willingness of parties in the future to enter into contracts."

Other cases to be heard this fall

Trinity Western University v the Law Society of Upper Canada (and TWU v the Law Society of British Columbia), Nov. 30-Dec. 1: Law societies in B.C. and Ontario refused to recognize the graduates of the proposed Christian law school, saying that to do so would be tantamount to accepting discrimination. The B.C. Court of Appeal overturned one decision, while Ontario's top court supported the other. The case features a record number of intervenors, 26, including faith groups and same-sex advocacy groups. It is a reprise of a 2001 case in which the court upheld lower-court rulings forcing the B.C. College of Teachers to recognize the school's graduates.

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Michael Bourgeois v the Queen, Oct. 13: Mr. Bourgeois was convicted of sexual assault, but a dissenting appeal-court judge in Alberta said that the facts of the case, combined with "errors, flaws and defects in the reasons of the trial judge, leave me with considerably more than a 'lurking doubt' or 'feeling of unease.'" At a time when appeal courts have criticized several trial judges for being unfair to accused men in sexual-assault cases, Bourgeois provides an opportunity to scrutinize the reasoning process of a judge when two versions of what happened are diametrically opposed.

Benjamin Robinson v the Queen and Kwesi Millington v the Queen, Oct. 30: Two Mounties are challenging their perjury convictions arising from testimony at the Braidwood Inquiry into the death of Robert Dziekanski, a Polish immigrant who had been lost for 10 hours in the Vancouver International Airport in October, 2007, when four RCMP officers tasered him five times, although he held only a stapler.

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