SCC FILE NUMBER 37398

IN THE (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK)

B ETWEEN:

HER MAJESTY THE QUEEN APPELLANT (Appellant) - and -

COMEAU,GERARD RESPONDENT (Respondent) - and -

ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF PRINCE EDWARD ISLAND, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR, ATTORNEY GENERAL OF NORTHWEST TERRITORIES,THE GOVERNMENT OF NUNAVUT as represented by THE MINISTER OF JUSTICE, LIQUIDITY WINES LTD., PAINTED ROCK ESTATE WINERY LTD., 50TH PARALLEL ESTATE LIMITED PARTNERSHIP, OKANAGAN CRUSH PAD WINERY LTD. AND NOBLE RIDGE VINEYARD AND WINERY LIMITED PARTNERSHIP, ARTISAN ALES CONSULTING INC., MONTREAL ECONOMIC INSTITUTE,FEDERAL EXPRESS CANADA CORPORATION,CANADIAN CHAMBER OF COMMERCE, CANADIAN FEDERATION OF INDEPENDENT BUSINESS, CANNABIS CULTURE, ASSOCIATION OF CANADIAN DISTILLERS, operating as SPIRITS CANADA, CANADA'S NATIONAL BREWERS, DAIRY FARMERS OF CANADA, EGG FARMERS OF CANADA, CHICKEN FARMERS OF CANADA, TURKEY FARMERS OF CANADA, CANADIAN HATCHING EGG PRODUCERS, CONSUMERS COUNCIL OF CANADA, CANADIAN VINTNERS ASSOCIATION and ALBERTA SMALL BREWERS ASSOCIATION INTERVENERS

FACTUM OF THE INTERVENER, CANADIAN VINTNERS ASSOCIATION (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) BENNETT JONES LLP BENNETT JONES LLP 3400 One First Canadian Place World Exchange Plaza P.O. Box 130 1 900-45 O'Connor Street Toronto, Ontario M5X 1A4 Ottawa, ON KlP 1A4

Robert W. Staley(LSUC #27115J) Mark Jewett QC Ranjan K. Agarwal(LSUC #49488H) Jessica M. Starck(LSUC #70150J) Tel: 613-683-2328 Fax: 613-683-2323 Telephone: (416) 863-1200 Email: jewettmbennettjones.com Facsimile: (416) 863-1716 Email: staleyrAbennettiones.corn Agent for the Intervener, Canadian Vintners Association Counsel for the Intervener, Canadian Vintners Association

ORIGINAL

THE REGISTRAR OF THE SUPREME COURT OF CANADA Supreme Court of Canada 301 Wellington Street Ottawa, Ontario KlA 0,11

COPIES TO:

HER MAJESTY TILE QUEEN GOWLING WLG(CANADA) LLP Attorney General of New Brunswick 160 Elgin Street Public Prosecutions Branch Suite 2600 P.O. Box 6000, Carleton Place Ottawa, Ontario KIP 1C3 Fredericton, New Brunswick E3C 5111 D. Lynne Watt Telephone: (613) 786-8695 William B. Richards Facsimile: (613) 788-3509 Kathryn A. Gregory Email: [email protected]

Telephone: (506) 453-2784 Ottawa Agent for Counsel for the Appellant Facsimile: (506) 453-5364 Email: [email protected]

Counsel for the Appellant GARDINER,ROBERTS LLP SUPREME ADVOCACY LLP Bay Adelaide Centre, East Tower 100-340 Gilmour Street 22 Adelaide St. W., Suite 3600 Ottawa, Ontario K2P OR3 Toronto, Ontario M511 4E3 Marie-France Major Ian A. Blue, Q.C. Telephone: (613) 695-8855 Ext.: 102 Arnold Schwisberg Facsimile: (613) 695-8580 Mikael Bernard Email: infiriajor(Oupremeadvocacy.ca Telephone: (416) 865-2962 Facsimile: (416) 865-6636 Ottawa Agent for Counsel for the Respondent Email: [email protected]

Counsel for the Respondent

ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA Procureur general du Canada 50 O'Connor Street, Suite 500, Room 557 Complexe Guy-Favreau Ottawa, Ontario 200, bowl. Rene-Levesque Ouest, Piece 1202-23 KlA 01-18 Montreal, Quebec H2Z 1X4 Christopher M. Rupar Telephone: (613) 670 6290 Francois Joyal Facsimile: (613) 954-1920 Telephone: (514) 283-5880 Email: christopher.rupar(i4justice.gc.ca Facsimile: (514) 496-7876 E-mail: ncois.joval usti cc.ge.ca Ottawa Agent for Counsel for the Intervener, Attorney General of Canada Counsel for the Intervener, Attorney General of Canada

ATTORNEY GENERAL OF ONTARIO BORDEN LADNER GERVAIS LLP 720 Bay St., 4'h Floor World Exchange Plaza Toronto, Ontario 100 Queen Street, Suite 1300 MSG 2K1 Ottawa, Ontario K1P 1J9 Michael S. Dunn Telephone: (416) 326-3867 Nadia Effendi Facsimile: (416) 326-4015 Telephone: (613) 237-5160 m [email protected] Facsimile: (613) 230-8842 Email: tiefTendi4b1g.com Counsel for the Intervener, Attorney General of Ontario Ottawa Agent for Counsel for the intervener, Attorney General of Ontario ATTORNEY GENERAL OF QUEBEC NONJ & ASSOCIES Procureur general du Quebec 1 11, rue Champlain a/s Ministere de la Justice (droit autochtone) Gatineau, QC 1200 Route de l'Eglise, 2e etage :18X 3R1 Quebec, QC G1V 4M1 Pierre Landry Telephone: (819) 771-7393 Jean-Vincent Lacroix Facsimile: (819) 771-5397 Laurie Anctil E-mail: [email protected] Telephone: (418) 643-1477 Facsimile: (418) 644-7030 Ottawa Agent for Counsel for the Intervener, Email: jcan-vincent.lacroix(i6- ustice.Qom ,.qc.ca Attorney General of Quebec

Counsel for the Intervener, Attorney General of Quebec

ATTORNEY GENERAL OF NOVA SCOTIA COWLING WLG(CANADA) LLP 1690 Hollis Street, 8th Floor 160 Elgin Street PO Box 7 Suite 2600 Halifax, Nova Scotia Ottawa, Ontario B3J 2L6 K1 P 1C3

Edward A. Gores, Q.C. D. Lynne Watt Telephone: (902) 424-3297 Telephone: (613) 786-8695 Facsimile: (902) 424-1730 Facsimile: (613) 788-3509 E-mail: edward.(rores*lovascotia.ca -mail: lvnile.watt@gowl rIgwt.coin

Counsel for the Intervener, Ottawa Agent for Counsel for the Intervener, Attorney General of Nova Scotia Attorney General of Nova Scotia

ATTORNEY GENERAL OF BRITISH BORDEN LADNER GERVAIS LLP COLUMBIA World Exchange Plaza Legal Services Branch, 1001 Douglas St. 100 Queen Street, Suite 1300 PO Box 9280, Stn. Prov. Govt. Ottawa, Ontario Victoria, British Columbia KIP 1J9 V8W 9J7 Nadia Effendi J. Gareth Morley Telephone: (613) 237-5160 Tyna Mason Facsimile: (613) 230-8842 Telephone: (250) 356-8584 E-mail: neffendi@blg,com Facsimile: (250) 953-3557 E-mail: gareth.morle\4eov.bc.ca Ottawa Agent for Counsel for the Intervener, Attorney General of British Columbia Counsel for the Intervener, Attorney General of British Columbia STEWART McKELYEY GOWLING WLG (CANADA)LLP 65 Grafton Street 160 Elgin Street Charlottetown, Prince Edward Island Suite 2600 CIA 8B9 Ottawa, Ontario K1P 1C3 James W. Gormley, Q.C. Jonathan M. Coady D. Lynne Watt Telephone: (902) 629-4513 Telephone: (613) 786-8695 Facsimile: (902)566-5283 Facsimile: (613) 788-3509 E-mail: nne.watt(a)gowl ngwl g,co m Counsel for the Intervener, Attorney General of Prince Edward Island Ottawa Agent for Counsel for the Intervener, Attorney General of Prince Edward Island

ATTORNEY GENERAL FOR GOWLING WLG(CANADA) LLP SASKATCHEWAN 160 Elgin Street Ministry of Justice Saskatchewan Suite 2600 Constitutional Law Branch Ottawa, Ontario 820-1874 Scarth St. K1P 1C3 Regina, Saskatchewan S4P 4B3 D. Lynne Watt Telephone: (613) 786-8695 Theodore Litowski Facsimile: (613) 788-3509 Telephone: (306) 787-6642 E-mail: lvnne.watt@ go wl n gwI2 eon' Facsimile: (306) 787-9111 L mail: theod o re.I towski 4Lgov. sk.ea Ottawa Agent for Counsel for the Intervener, Attorney General for Saskatchewan Counsel for the Intervener, Attorney General of Saskatchewan

ATTORNEY GENERAL OF ALBERTA COWLING WLG(CANADA) LLP 4th Floor, Bowker Building 160 Elgin Street 9833 - 109th Street Suite 2600 Edmonton, Alberta Ottawa, Ontario TSK 2E8 K1 P 1C3

Robert J. Normey D. Lynne Watt Telephone: (780) 422-9532 Telephone: (613) 786-8695 Facsimile: (780) 425-0307 Facsimile: (613) 788-3509 E-mail: robert.normot*gov.ab.ca E-mail: lyilne.watt go wlingw1g. co in

Counsel for the Intervener, Ottawa Agent for Counsel for the Intervener, Attorney General of Alberta Attorney General of Alberta ATTORNEY GENERAL OF GOWLING WLG(CANADA) LLP NEWFOUNDLAND AND LABRADOR 160 Elgin Street, Suite 2600 4th Floor, East Block Ottawa, Ontario Confederation Bldg. KIP 1C3 St. John's, Newfoundland & Labrador A M 4J6 Robert E. Houston, Q.C. Telephone: (6]3) 783-8817 Barbara Barrowman Facsimile: (613) 788-3500 Philip Osborne Email: [email protected] Telephone: (709) 729-2869 Facsimile: (709) 729-2129 Ottawa Agent for Counsel for the Intervener, F mail: barbarabarrowm a n ca Attorney General of Newfoundland and Labrador Counsel for the Intervener, Attorney General of Newfoundland & Labrador

ATTORNEY GENERAL OF THE GOWLING WLG(CANADA) LLP NORTHWEST TERRITORIES 160 Elgin Street 4903 — 49th Street Suite 2600 PO Box 1320 Ottawa, Ontario Yellowknife, Northwest Territories KIP 1C3 X1 A 2L9 Guy Regimbald Bradley Patzer Telephone:(613) 786-0197 Telephone: (867) 920-3248 Facsimile: (613) 563-9869 Facsimile: (867) 873-0234 E-mail: [email protected] E-mail: brad patzer(&wv.nt.ca Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Attorney General of the Northwest Territories Attorney General of Northwest Territories ATTORNEY GENERAL OF THE NUNAVUT GOWLING WLG(CANADA) LLP TERRITORY 160 Elgin Street Government of Nunavut as represented by the Suite 2600 Minister of Justice Ottawa, Ontario P.O. Box 1000, Station 540 KIP 1C3 Igaluit, Nunavut XOA OHO Guy Regimbald Telephone:(613) 786-0197 Adrienne Silk Facsimile: (613) 563-9869 John L. MacLean E-mail: atv,[email protected] Telephone:(867) 975-6172 Facsimile: (867) 975-6349 Ottawa Agent for Counsel for the Intervener, E-mail: asilk(d),gov.nu.ea Attorney General of the Nunavut Territory

Counsel for the Intervener, Attorney General of the Nunavut Territory

COULSON LITIGATION SUPREME ADVOCACY LLP 1500 - 885 West Georgia Street 100- 340 Gilmour Street Vancouver, British Columbia Ottawa, Ontario V6C 3E8 K2P OR3

Shea Coulson Marie-France Major Telephone:(604) 398-4481 Telephone:(613) 695-8855 Ext: 102 E-mail: scoulson cotilsonlitigation.com Fax:(613) 695-8580 E-mail: m fmai upremead vocacy .ca Counsel for the Intervener, Liquidity Wines Ltd. Ottawa Agent for Counsel for the Intervener, Liquidity Wines Ltd.

COULSON LITIGATION SUPREME ADVOCACY LLP 1500 - 885 West Georgia Street 1 00- 340 Gilmour Street Vancouver, British Columbia Ottawa, Ontario V6C 3E8 K2P 0R3

Shea Coulson Marie-France Major Telephone:(604) 398-4481 Telephone:(613) 695-8855 Ext: 102 E-mail: scoulson()coulsonlitigation.com Fax:(613) 695-8580 E-mail: mlinajor(cisuprcmeadvocacv.ca Counsel for the Intervener, Painted Rock Estate Winery Ltd., 50th Parallel Ottawa Agent for Counsel for the Intervener, Estate Limited Partnership, Okanagan Crush Painted Rock Estate Winery Ltd., 50th Pad Winery Ltd. and Noble Ridge Vineyard and Parallel Estate Limited Partnership, Winery Limited Partnership Okanagan Crush Pad Winery Ltd. and Noble Ridge Vineyard and Winery Limited Partnership UNIVERSITY OF ALBERTA SUPREME ADVOCACY LLP Law Centre, 111 - 89 Avenue 100- 340 Gilmour Street Edmonton, Alberta Ottawa, Ontario T6G 2F15 K2P OR3

Malcolm Lavoie Marie-France Major Telephone:(780) 492-9809 Telephone:(613) 695-8855 Ext: 102 Fax:(780) 492-4924 Fax: (613) 695-8580 E-mail: [email protected] E-mail: mfmajor Jisupremeadvocacy.ca

Counsel for the Intervener, Ottawa Agent for Counsel for the Intervener, Artisan Ales Consulting Inc. Artisan Ales Consulting Inc.

OSLER, HOSKIN & HARCOURT LLP OSLER, HOSKIN & HARCOURT LLP 100 King Street West Suite 1900 1 First Canadian Place, Suite 6200, P.O. Box 50 340 Albert Street Toronto, Ontario Ottawa, Ontario IV15X 1B8 K1R 7Y6

Mark A. Gelowitz Geoffrey Langen Robert Carson Telephone: (613) 787-1015 Telephone:(416) 862-4743 Fax:(613) 235-2867 Fax:(416) 862-6666 E-mail: glangenk-Osler.com [email protected] Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Montreal Economic Institute Montreal Economic Institute

MeMILLAN LLP McMillan LLP BCE Place, Suite 4400 50 O'Connor Street 1 81 Bay Street, Bay Wellington Tower Suite 300 Toronto, Ontario Ottawa, Ontario 1\45,1 2T3 Ki P 6L2

Scott Maidment Jonathan O'Hara Samatha Gordon Telephone:(613) 232-7171 Ext: 122 Telephone:(416) 865-7911 Fax: (613) 231-3191 Fax: (416) 865-7048 E-mail: jonathan,ohara &,mcmillan.ca E mail scott.maidmentO)mcmillan.ca Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Federal Express Canada Corporation Federal Express Canada Corporation BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP Scotia Plaza, 40 King Street West World Exchange Plaza Toronto, Ontario 100 Queen Street, suite 1300 M514 3Y4 Ottawa, Ontario KIP 1J9 Christopher D. Bredt Ewa Krajewska Nadia Effendi Telephone:(416) 367-6165 Telephone:(613) 237-5160 Fax: (416) 361-7063 Fax: (613) 230-8842 E mail cbredt(iiThIg.com E-mail: neffendi(Olg.com

Counsel for the Intervener, Ottawa Agent for Counsel for the Intervener, Canadian Chamber of Commerce, Canadian Canadian Chamber of Commerce, Canadian Federation of Independent Business Federation of Independent Business

TOUSAW LAW CORPORATION SUPREME ADVOCACY LLP 2459 Pauline Street 100- 340 Gilmour Street Abbotsford, British Columbia Ottawa, Ontario V2S 3S1 K2P OR3

Kirk To usaw Marie-France Major Jack Lloyd Telephone: (613) 695-8855 Ext: 102 Telephone:(604) 836-1420 Fax: (613) 695-8580 Fax: (866) 310-3342 E-mail: mlmajor(csupremeadvocacv.ca mail: kirk tousa w(i62n)- ai com Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Cannabis Culture Cannabis Culture

POWER LAW POWER LAW 401 West Georgia Street 1 103 - 130 Alberts Street Suite 1600 Ottawa, Ontario Vancouver, British Columbia KIP 564 V6B 5A1 Audrey Mayrand Jennifer Klinck Telephone:(613) 702-5560 Marion Sandilands Fax:(613) 702-5560 Madelaine Mackenzie E-mail: amayran d uristespower.ca Kirsten Goodwin Telephone:(604) 260-4462 Ottawa Agent for Counsel for the Intervener, Fax:(902) 422-5797 Association of Canadian Distillers, operating E-mail: smseonkjuristespower.ca as Spirits Canada

Counsel for the Intervener, Association of Canadian Distillers, operating as Spirits Canada GOWLING WLG(CANADA) LLP GOWLING WLG(CANADA) LLP 100 King Street West 160 Elgin Street Suite 1600 Suite 2600 Toronto, Ontario Ottawa, Ontario M5X 1G5 K1P 1C3

Stephen I. Sofer Guy Regimbald Paul Seaman Telephone:(613) 786-0197 Telephone:(416) 369-7240 Facsimile: (613) 563-9869 Fax:(416) 369-7250 E-mail: guy.regimbald4,gowlingwig„com E-mail: steven.sofer@gclwling\Lv.lg.eom Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Canada's National Brewers Canada's National Brewers

CONWAY BAXTER WILSON LLP 400-411 Roosevelt Avenue Ottawa, Ontario K2A 3X9

David K. Wilson Owen M. Rees Julie Mouris Telephone:(613) 288-0149 Fax:(613) 688-0271 E-mail: ciwilson*onwayTrp

Counsel for the Intervener, Dairy Farmers of Canada, Egg Farmers of Canada, Chicken Farmers of Canada, Turkey Farmers of Canada and Canadian Hatching Egg Producers SISKINDS LLP MICHAEL J. SOBKIN 100 Lombard Street 331 Somerset Street West Suite 302 Ottawa, Ontario Toronto, Ontario K2P 0J8 MSC 1M3 Telephone:(613) 282-1712 Fax:(613) 288-2896 Paul Bates E-mail: msobki06iympatico.ca Ronald Rodolny Tyler Planeta Ottawa Agent for Counsel for the Intervener, Telephone:(519) 672-2121 Consumers Council of Canada FAX:(519) 672-6065 E-mail: paul,[email protected]

Counsel for the Intervener, Consumers Council of Canada

BURNET,DUCKWORTH & PALMER 2400, 525 - 8 Avenue SW Calgary, Alberta T2P 1G1

Robert L. Martz Paul G. Chiswell Telephone: (403) 260-0393 Fax:(403) 260-0332 E-mail: rmartzAbdplaw.com

Counsel for the Intervener, Alberta Small Brewers Association TABLE OF CONTENTS

PART I: OVERVIEW AND STATEMENT OF FACTS 1 PART II: STATEMENT OF POSITION 1 PART III: LAW AND ARGUMENT 2 A. THIS CASE CONSTITUTES AN EXCEPTION TO VERTICAL 5'114 RE DEC:ISIS New Evidence Regarding Historical Context 3 2, New Social and Legislative Matrix 4 B. THIS CASE CONSTITUTES AN EXCEPTION TO HORIZONTAL STARE DECISIS 6 1. Inconsistent Jurisprildence 8 2. Academic Criticism 9 PART IV: SUBMISSIONS CONCERNING COSTS 10 PART V: ORDERS SOUGHT 10 PART VI: TABLE OF AUTHORITIES 11 1

PART I: OVERVIEW AND STATEMENT OF FACTS

1. The central question at issue in this appeal is the proper interpretation of the internal free trade provision found in section 121 of the Constitution Act, 1867.1 This issue was considered almost a hundred years ago by this Court in Gold Seal Ltd v Dominion Express Co,2 which concluded that section 121 only prohibits "customs duties" or "tariff barriers" to interprovincial trade.

2. The trial judge departed from this in holding that section 121 prohibits both tariff and non-tariff barriers to interprovincial trade. Based on this interpretation, he concluded that section 134(b) of New Brunswick's Liquor Control Act3 violated section 121 of the Constitution and was therefore unconstitutional.

3. The Canadian Vintners Association (the CVA) submits that the Gold Seal precedent can be overturned based on new historical evidence and the new social and legislative matrix that has developed since 1921, when Gold Seal was decided.

4. Even if this Court concludes that the trial judge was not entitled to overturn the Gold Seal interpretation, it must still consider whether this case constitutes an exception to the principle of horizontal stare decisis. This Court has an absolute right to overturn a previous decision it later determines to be wrongly decided. Gold Seal was wrongly decided, and later case law and legislation has created uncertainty regarding its proper interpretation. It is appropriate for this Court to now reconsider its previous interpretation of section 121, which was articulated almost a hundred years ago.

PART II: STATEMENT OF POSITION

5. The new expert evidence presented to the trial judge regarding the historical context surrounding the drafting of section 121 of the Constitution as well as the drastic change in the social and legislative matrix that has occurred since Gold Seal was decided entitled the trial judge to reconsider Gold Seal. These factors, along with inconsistent subsequent jurisprudence and

1 30 & 31 Vict, c 3,(UK), reprinted in RSC 1985, App II, No 5 [the Constitution]. 2 Gold Seal Ltd v Dominion Express' Co,[1921] 3 WWR 710 [Gold Seal]. 3 Liquor Control Act, RSNB 1973, c L-10. 2 significant academic criticism, allow for this Court to overrule its previous decision.

PART 111: LAW AN!) ARGUMENT

A. This Case Constitutes an Exception to Vertical Stare Decisis

6. The trial judge did not have to follow this Court's decision in Gold Seal, which interpreted section 121 of the Constitution as only prohibiting interprovincial barriers to trade in the form of custom duties or tariff barriers. Although the principle of vertical stare decisis generally requires that lower courts follow the decisions of higher courts, "stare decisis is not a straitjacket that condemns the law to stasis".4 Rather, in certain circumstances, a trial court may revisit settled rulings of higher courts. As confirmed by this court in Carter and BedlOrd,5 there are two general exceptions to the principle of vertical stare decisis:

(a) when a new legal issue is raised; or

(b) when a change in the circumstances or evidence fundamentally shifts the parameters of the debate.6

7. Only one of these pre-conditions is necessary to trigger the reconsideration of a binding precedent.?

8. In assessing the principle of vertical stare decisis in the context of Constitutional interpretation, this Court has confirmed that "the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional."8

9. Here, there is a change in circumstances and new evidence that justify the trial judge's decision to depart from the Gold Seal precedent.

Carter v Canada (Attorney General), 2015 SCC 5 at para 44 [Carter]. Bedford v Canada (Attorney General), 2013 SCC 72 at para 42 [Bed/Ord]. 6 Carter, supra note 4 at para 44. 7 R v Liigu, 2016 BCSC 1487 at para 39. 8 Bedford, supra note 5 at paras 43-44. 3

1. New Evidence Regarding Historical Context

10. New evidence regarding the historical context surrounding the drafting of section 121 of the Constitution required the trial judge to reconsider the interpretation of section 121 articulated in Gold Seal. Expert evidence regarding the drafting of the Constitution, its legislative history, scheme, and legislative context was presented to the trial judge. None of the previous courts tasked with interpreting the meaning of "admitted free" in section 121 of the Constitution were made privy to this expert evidence.9

1 1. Ultimately, this novel historical evidence led the trial judge to conclude that the legislative drafters of the Constitution wanted to implement free trade as between the provinces of the newly formed Canada.10 This conclusion was based on the trial judge's acceptance of the following facts:

(a) The changes made to the wording of section 121 of the Constitution between the first and second drafts reflects their attempt to gain unfettered economic exchange and a more comprehensive economic union.1 1

(b) The drafters purposely used wording in section 121 that mirrored the words used in existing legislation encouraging free trade in their respective provinces,12

(c) The drafters were highly experienced, including on commercial and economic matters. They would have known to include "from customs duties or charges" in section 121 if they intended to limit this section to tariff barriers.13

(d) The drafters knew of the distinction between "admitted free" and "admitted free from duty" and deliberately avoided including the latter. I4

1 2. This new historical evidence invalidates a fundamental parameter of the debate regarding the proper interpretation of section 121. The threshold for revisiting a higher court's binding

9 R v Comeau, 2016 NBPC 3 at para 125 [Comeau]. 10 Comeau, supra note 9 at para 183. 1 1 Comeau, supra note 9 at para 178. 1 2 Comeau,supra note 9 at para 179. 13 Comeau, supra note 9 at para 181. 14 Comeau, supra note 9 at para 182. 4 precedent is undoubtedly high. As explained by the Alberta Court of Appeal in Caswell, the change in evidence or circumstances must invalidate the starting premise of the precedent for reconsideration of the precedent to be possible.15

1 3. The starting premise of Gold Seal was that the drafters intended the term "free" in section 121 to mean a prohibition on the levying of custom duties or other like charges in matters of interprovincial trade. The new evidence at the trial here was that the drafters' true intention was something different. The high threshold set out in Carter and Bedford is satisfied here.

2. New Social and Legislative Matrix

14. The social and legislative context regarding alcohol has fundamentally changed since Gold Seal was decided in 1921. The Supreme Court's narrow interpretation of the phrase "admitted free" in section 121 of the Constitution was necessarily influenced by the fact that this decision was rendered when prohibition was still in effect in certain Canadian provinces. This is reflected in Justice Anglin's conclusion:

The purpose of [section 121 of The B.N.A. Act] is to ensure that articles of the growth, produce or manufacture of any province shall not be subjected to any customs duty when carried into any other province. Prohibition of import in aid of temperance legislation is not within the purview oldie section, 16 [Emphasis added]

5. The legislation at issue in Gold Seal prohibited the importation of intoxicating liquor into those provinces where its sale for beverage purposes was forbidden by provincial law. The Supreme Court was interpreting section 121 when prohibition was the social norm, as enforced through legislation.

1 6. There have been several legislative and social changes over the 96 years since Gold Seal was decided, all of which fundamentally shift the parameters of the debate. These changes include:

1 5 1? l' Caswell, 2015 ABCA 97,[2015] AWLD 1674 at para 44. 16 Gold Seal, supra note 2 at 466. 5

(a) Federal legislation prohibiting interprovincial trade of alcohol has evolved. The Importation ofIntoxicating Liquors Act(IILA) 17 was enacted in 1928, shortly after the Gold Seal decision was released, following the revocation of liquor prohibition laws. It effectively gave provincial liquor boards a monopoly over the sale and distribution of alcohol in their province and made it a crime for individuals to transport alcohol from one province to another for personal use. On June 28, 2012, the IILA was amended by Bill-C-311,1s which removed the federal restrictions on interprovincial trade of wine and provided each province with the option to set limits on personal importations of alcohol.19 On June 19, 2014, a further amendment to the IILA came into force, allowing individuals to move beer and spirits from one province to another for personal use.20 These amendments allowed for provinces to enact the necessary laws to facilitate and encourage interprovincial trade.

(b) The current legislative landscape regarding interprovincial trade barriers applicable to alcohol is divergent across provinces, sporadically enforced, and often misunderstood by Canadian citizens.`1

(c) International trade has flourished since Gold Seal was decided. Canada is now a party to multiple international trade agreements, which facilitate trade with many countries including the United States, the European Union as well as a coalition of Pacific Rim nations.22

1 7 RSC, 1985, c 1-3. 18 Canada Bill C-311, An Act to amend the Importation olintoxicating Liquors Act (interprovincial importation of wine for personal use), 1 sl Sess, 4151 Parl, 2012, cl 1 (assented to 28 June 2012), RS 2012, c 14. 19 An Act to amend the Importation of Intoxicating Liquors Act (intetprovincial importation of wine for personal use), SC 2012, c 14; Trial Transcript, before the Honourable Judge Ronald LeBlanc, August 25, 26, 27, 28, 2015 at 68-70, Volume II, Part III-Evidence, Excerpts, Transcripts, Tab 9. 20 SC 2014, c 20, s 163. 21 Dr. Andrew Smith Report at 129, Record of the Appellant, Volume V, Part IV-Exhibits, Tab 30; Comeau, supra note 9 at paras 11, 38, 160. 22 Lavoie, "R v. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union"(2017) 40 Dal L,1 189 at 206 [Lavoie]. 6

(d) The social and economic landscape has also been altered by modern technology, including the internet and drastically improved methods of delivery, allowing consumers to easily purchase products directly from a producer in another province in person, by phone, or over the internet and have them shipped to their homes. The ease with which one can purchase alcohol from another province and the lack of social stigma associated with alcohol consumption prevalent during the prohibition era, results in a different social attitude toward the purchase and sale of alcohol.23

17. The new historical evidence and the drastic change in social and legislative context since Gold Seal has shifted the parameters of this debate. The trial judge therefore could revisit this Court's decision in Gold Seal.

18. Saskatchewan describes the trial judge's decision as a "simple disagreement with this Court on the meaning of a constitutional provision", which did not entitle him to break away from a binding precedent.21 If accepted, this argument would transform lower courts into "mere scribes" by forcing them to uphold unconstitutional laws without conducting a legal analysis something this Court has explicitly warned against.25

B. This Case Constitutes an Exception to Horizontal Stare Decisis

19. This Court has an absolute right to overrule itself, if it has a genuine realization of error.26 In determining whether to overturn its own precedent, this Court must engage in a balancing exercise and ask whether the reasons in favour of following a precedent such as certainty, consistency, predictability and institutional legitimacy outweigh the need to overturn a precedent sufficiently wrong it should not be upheld and perpetuated.27 The meaning of the phrase "admitted

23 Ian Blue,"On the Rocks? Section 121 of The Constitution Act 1867, And the Constitutionality of the Importation of Intoxicating Liquors Act" (2009) The Advocates Quarterly 306 at 325 [On the Rocks]. 24 FaCtUM of the Intervener, The Attorney General of Saskatchewan at para 9. 25 Bedford, supra note 5 at para 43. 26 Michael Adams, "Escaping the 'Straitjacket': Canada (Attorney General) v Bedford and the Doctrine of Stare Decisis" 78 Sash L Rev 325 at 331-332 [Adcuns]. 27 Fraser r Ontario (Attorney General), 2011 SCC 20 at para 139. 7

free" was misinterpreted in Gold Seal. This Court must now decide whether the principles underlying .stare decisis outweigh the need to rectify this mistake.

20. There are compelling reasons for this Court to overturn its previous decision in Gold Seal. The magnitude of the impact of the Gold Seal interpretation on trade between provinces weighs heavily in favour of this Court parting- ways with its previous interpretation of section 121. Interpreting section 121 as only prohibiting tariff barriers to interprovincial trade has allowed for a proliferation of conflicting provincial laws and an overall deterioration of interprovincial trade. The vast economic implications for Canadian businesses and consumers outweigh any benefit that could be derived from upholding an incorrect interpretation of the term "admitted free" from a case decided almost a century ago.

21. When constitutional interpretation is involved, this Court must conduct this balancing exercise remembering that our Constitution is a "living tree", which accommodates and addresses the realities of modern life.28 Since judicial understanding of the Constitution develops over time, "the courts only need to point to the 'living tree' approach before overruling its previous holding".29 Here, the interpretation of"admitted free" in section 121 must be reconsidered by this Court given the economic, social, and legislative landscape that has drastically changed since Gold Seal was decided almost a century ago.

22. In recent years, there has been significant academic criticism of Gold ,S'eal.311 Later jurisprudence has also signaled the need for a reconsideration of Gold Seal.31 Both of these factors militate in favour of this Court departing from the principle of horizontal stare decisis and reconsidering its previous interpretation of section 121 in Gok/Sea/.32

28 Reference Re Scone-Sex Marriage, 2004 SCC 79 at para 22. 29 Adams, supra note 26 at 332. 30 On the Rocks, swpra note 23 at 317-324; Ian Blue, "Long Overdue: A Reappraisal of Section 121 of the Constitution Act, 1867"(2010), 33 Dal 1-1 161 [Long Overdue]; Lavoie, supra note 22 at 198, footnote 43; Martha Jackman, "Interprovincial Mobility Rights under the Charter" (1985) 43 U Toronto lac L Rev 16 at 19 [Jackman]. 3 1 Murphy v Canadian Pacific Railway Co, [1958] SCR 626 at 642 [Tituphy]; Agricultural Products Marketing Act (Re),[1978] 2 SCR 1198 at 1268 [APMA]. 32 Canada v Craig, 2012 SCC 43 at para 29 [Craig]. 8

1. Inconsistent Jurisprudence

23. Generally, adhering to precedent enshrines certainty.33 However, in this case, continued recognition of the interpretation of section 121 articulated in Gold Seal would generate more uncertainty than certainty. This uncertainty stems from the Supreme Court having effectively given section 121 two separate and distinct interpretations. The first is that described in Gold Seal, Atlantic Smoke Shops Ltd v Conlon34 and the majority judgment in Altuphy. According to this interpretation, section 121 only prohibits interprovincial barriers to trade in the form of custom duties or tariff barriers.

24. The second interpretation of section 121 was articulated by Justice Rand in his concurring judgment in Aliirphy, and by Chief Justice Laskin in APAIA. In Murphy, Justice Rand applied a purposive interpretation to section 121 that significantly widened the scope of permissible interprovincial trade. Under this interpretation, section 121 prohibits the imposition of any restriction on the movement of Canadian goods that in its essence and purpose relates to a provincial boundary.35 Chief Justice Laskin subsequently adopted Justice Rand's purposive interpretation of section 121 in APMA, but injected a further element of uncertainty by stating that what constituted a tariff or customs duty could differ depending on whether it was estimated under a provincial statute or a federal statute.36

25. Legal scholars have repeatedly cited these divergent interpretations as a reflection of the fact that the scope of section 121 has not yet been conclusively established.37 Given that later jurisprudence has already created uncertainty regarding the proper interpretation of section 121,

33 Teva Canada Ltd v TD Canada Trust, 2017 SCC 51 at para 141, Cote and Rowe JJ, dissenting [Tem.]. 34 _Atlantic Smoke Shops Lid v Conlon., [1943] 2 All ER 393. 35 Aluiphy, supra note 31 at 642. 36 44P/114, supra note 31 at 1267. 37 Jackman, supra note 30 at 19; On the Rocks, supra note 23 at 317; Long Overdue, supra note 30 at 180; Stevan M. Pepa, "Extraterritoriality and the Supreme Court's Assertion of the Economic Constitution," (2001) 34 Can Bus LI 231 at 234, footnote 11; Joseph Eliot Magnet, "The Constitutional Distribution of Taxation Powers in Canada" (1978), Ottawa LI 473 at 528-531. 9 maintaining certainty is not a valid justification for this court to simply apply the Gold Seal interpretation without first considering which, if any, interpretation of section 121 is correct.

2. Academic Criticism

26. Significant academic criticism of the Gold Seal interpretation also supports a departure from the doctrine of horizontal stare decisis.38

27. The most common criticism of the Gold Seal interpretation of section 121 is that it misconstrues the provision's plain meaning. As Professor Malcolm Lavoie explains: "the plain meaning of section 121 is not restricted to tariffs. The text says goods are to be 'admitted free,' and tariffs are only one way that free trade can be admitted."39 Scholars contrast. this wording with the language used in sections 102, 123 and 126 of the Constitution, where "duties" are expressly mentioned40 to support their argument that the framers of the Constitution had this language at their disposal and yet chose not to incorporate it into section 121*

28. Some scholars hypothesize that the perfunctory manner in which the Court in Gold Seal dealt with section 121 led the Court astray, given that "section 121 was an afterthought in Gold Seal, raised for the first time in oral arguments",42 The later jurisprudence that upheld Gold Seal also failed to analyze section 121 in any depth, and as a result, the erroneous Gold Seal interpretation "was carried forward more or less uncritically in two subsequent high court decisions".43

29. Justices of this Court have recently acknowledged the relevance of academic criticism when considering a departure from horizontal stare deci,s1s.44 This factor, combined with the drastic change in social and economic context, and the inconsistent jurisprudence dealing with

38 Craig, supra note 32 at para 29; See also the joint dissenting reasons of Cote and Rowe .1J (McLachlin CJ and Wagner J concurring) in this Court's recent decision in Tera„yepra note 33 at para 152. 39 Lavoie, supra note 22 at 200. 40 On the Rocks, ,supra note 23 at 319, 41 On the Rocks, supra note 23 at 320, 42 Lavoie, supra note 22 at 201. 43 Lavoie sepia note 22 at 201. 41 Teva, sepia note 33 at para 149. 10 section 121, all suggest that this Court should reconsider the proper interpretation and scope of section 121.

30. Saskatchewan and Quebec both argue that the trial judge erred by interpreting this case as an exception to the principle of vertical stare decisis, Neither of these interveners address the fact that regardless of whether the trial judge could depart from binding precedent, this Court has complete discretion to overrule Gold Seal.45 In deciding whether to exercise this discretion, this Court must weigh correctness against certainty--an analysis that inherently requires this Court to determine, given all the evidence before it, the correct interpretation of section 121. Upholding Gold Seal would allow for a past mistake to dictate future directions and would undermine the values underpinning the principle of store deci,s1,s'.16

PART IV: SUBMISSIONS CONCERNING COSTS

31. The CVA does not seek its costs on this appeal. The CVA should not be ordered to pay the whole or any part of the costs of this appeal.

PART V: ORDERS SOUGHT

32. The CVA takes no position on the outcome of this appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED TI-HS 17'1 DAY OF NOVEMBER, 2017.

Counsel for the Intervener Canadian Vintners Association

:1 clouts, note 26 at para 17. Elaine Craig, "Personal Stare Decisis, 1 11V Non-Disclosure, And the Decision In Mabior" (2015) 53:1 Alta L Rev 207 at 226. PART VI: TABLE OF AUTHORITIES

CASES ' Cited At Agricultural Products Marketing Act (1:e), [19'78] 2 SCR 1198 1122, 24

Atlantic Smoke Shops Ltd. v Conlon, 119431 2 All .1,,R 393 1123

BedlOrd v Canada (Attorney General), 2013 SCC 72 'II 6, 8, 18

Canada v Craig, 2012 SEX:, 43 1122, 26

Carter v Canada (Attorney General), 2015 SCC 5 ill 6

Fraser v Ontario (Attorney General), 2011 SCC 20 ¶ 19

Gold Seal Ltd v Dominion Express Co, 62 SCR 424, i 19211_3 WWR 710 1 1, 14

Murphy v Canadian Pacific Railway Co, 11958j SCR 626 ¶ 22, 24

R v Caslvell, 2015 ABCA 97, L20151 AWLD 1674 ¶ 12

R v Comeau, 2016 NBPC 3, 2016 NBPC 3 ¶ 10, 1 1

R v Efigu, 2016 BCSC 1487,12010j Bcww 6540 11 7

Reference Re Same-Sex Marriage, 2004 SCC 79 1121

Teva Canada Ltd v TD Canada Trust, 2017 SCC 51 1123, 29

SECONDARY SOURCES Cited At Michael Adams,"Escapi ng the 'Straitjacket': Canada (Attorney General) v 111 19, 21,30 Bedford and the Doctrine of Stare Decisis" (2015) 78 Sask 1, Rev 325-346

Elaine Craig, 'Personal Stare Decisis, 111V Non-Disclosure, And the, 1130 Decision In Nlabior"(2015) 53:1 Alta L Rev 207

tan Blue,"Long Overdue: A Reappraisal of Section 121 of the Constitution 1 22, 25 Act, 1867"(2010) 33 Dalhousie I ,aw Journal 161

Tan Blue,"On the Rocks? Section 121 of The Constitution Act 1867, And ¶ 16, 22,25,27 the Constitutionality of the Importation of Intoxicating Liquors Act"(2009) The Advocates Quarterly 306

Martha Jackman, "Interprovincial Mobility Rights under the Charter" 1122, 25 (1985)43 11 Toronto l'''ac I. Rev 16 12

Malcolm Lavoie, -R v. Comeau and Section 121 of the Constitution Act, 16, 22, 27, 28 1 867: Freeing the Beer and For tifying_the Feonomic Union"(2017) 40 Dalhousie Law Journal 189

Joseph Eliot Mnnet,"The Constitutional Distribution of Taxation Powers 1 25 in Canada"(1978), Ottawa 1,1 473

Steyan M„Pepa,"Extraterritoriality and the Supreme Court's Assertion of ¶ 25 the Economic Constitution,"(2001134 Can Bus Li 231

LEGISLATION Cited At Canada Bill C-311, An Act to amend the Importation ofIntoxicating l'II 16 1st Liquors Act (interprovincial importation of- winefor personal use), Sess, 41st Pail, 2012, el 1 (assented to 28 June 2012), RS 2012,e t4,

Canada Projet. de Loi C-311, Loi modiliant la Loi sur !Importation des boissons enivrante,s' (importation intetprovinciale de vin pour usage personnel), 1' Sess, 41' Legislature, 2012, cl 1 (Sanetionnee le 28 Juin 2012), LR, 2012eh 14

Importation ofIntoxicating Liquors Act, RSC, 1985, c 1-3 ¶ 16

Loi sur I'importat ion des boissons enii'rantes, LRC (1985), eh _1-3

Liquor Control Act, R.S.N.B. 1973, c. L-10, s 134(b) ¶ 2

Loi sur la Reglemenlation des Alcools, LRN-B 1973, ch L-10, s 1340) The Constitution Act, 1867, 30 & 31 Vict, c 3 (UK,), s 102, 121, 123, 126 1[ 1, 27

Lois Conslitutionnelles,1867, 30 & 31 Vict, ch. 3 (RU), s 102, 121, 123, 126