Canada: Beer, Bedford, And Beyond — The Supreme Court Of Canada And The Limits Of Precedent In R. V. Comeau

R. v. Comeau,1 made headlines because of its sudsy subject matter: Does s. 121 of the Constitution Act, 1867 guarantee the free flow of liquor across interprovincial boundaries? The Supreme Court of Canada held that it does not, a conclusion that my colleagues Jacob Stone and Alexandre Saulnier-Marceau analyze in their blog post, here.

But Comeau was not just a case about federalism. It was also — and, arguably, more importantly — about the limits of precedent, and the circumstances in which trial courts may seek to change the law.

The Court held that binding vertical precedent must stay binding unless it has been overtaken by profound social or legal change, which in turn must be proved by evidence adduced at trial. Such evidence was not before the court in Comeau. Instead, the trial judge relied on testimony from a historian, who opined that the Supreme Court of Canada's interpretation of s. 121 — set out nearly a century ago, in Gold Seal Ltd. v. Attorney-General for the Province of Alberta2 — was inconsistent with the intentions of the Constitution's drafters. The need to correct this error, the trial judge held, justified departing from precedent, not because society or the law had evolved, but because the precedent was wrongly decided in the first place.

For the Supreme Court of Canada, this simply was not kosher:

For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must "fundamentally shif[t]" how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question. 3

Put differently, if a litigant seeks to change settled law, it is not enough to adduce evidence that "proves" the law was erroneously settled in the first place. A court can only escape the shackles of "vertical" precedent on the basis of "evolving legislative and social facts" that add up to profound "social change". 4 In Comeau, it concluded, "[t]his high threshold was not met". 5

Lawyers rarely ask courts to depart from precedent. But sometimes — as for Gerard Comeau's counsel in the New Brunswick Provincial Court — that is what the case demands. For advocates who find themselves in that situation, Comeau will be required reading. It completes (for now) a trilogy begun in 2013 in Canada (Attorney General) v. Bedford, and continued two years later in Carter v. Canada (Attorney General).6 Together, these three judgments provide the Supreme Court of Canada's guidance to Canada's courts on the doctrine of vertical precedent. 7

Bedford and Carter distinguished

Bedford involved a challenge to Canada's prostitution laws. Carter contested the prohibition of physician-assisted suicide. Both succeeded, at first instance and ultimately in the Supreme Court of Canada, despite binding precedent to the contrary.

In Carter, a unanimous Court summarized what it has since described as "the evidence-based exception to vertical stare decisis",8 as follows:

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate".9

The trial judge in Comeau thought the case before him belonged in the second category. The record at trial contained evidence about what its drafters intended s. 121 of the Constitution Act, 1867 to accomplish — namely, free trade between Canada's provinces. This evidence, which was presented in the form of expert testimony from a historian, was a game changer, in the trial judge's view; since comparable evidence had not been considered in Gold Seal or any of its (binding) progeny, the historical evidence "fundamentally shifted the parameters of the debate", 10 and justified his departing from precedent to correct a "long-standing misinterpretation of the intent of the Fathers of Confederation": ibid., at para. 165.

Not so, said the Supreme Court of Canada. It held that "a re-discovery or re-assessment of historical events is not evidence of social change", 11 and that "[d]iffering interpretations of history do not fundamentally shift the parameters of the legal debate". 12

Put differently, courts must adhere to binding precedent even in the face of evidence that the precedent was wrongly decided in the first place. If, however, the record establishes that the legal framework, the wider world, or both have changed since the previous judgment was rendered, then the "straightjacket" of vertical precedent may yield, as it did in Bedford and Carter.

Comeau will thus keep ambitious litigants and trial judges from waging battle on behalf of the text of the Constitution — as they conclude its provisions were originally intended or understood — against what they believe to be wrongly-decided, judge-made constitutional law. 13 Though Comeau acknowledges that "[h]istorical evidence can be helpful for interpreting constitutional texts" (at para. 36), it concludes that the potential helpfulness of such evidence does not permit escapes from vertical precedent.

Read alongside Bedford and Carter, Comeau completes the Court's current take on the doctrine of vertical precedent. The rule, simply stated, is that courts may depart from vertical precedent when a new issue is raised or to reflect shifts in social circumstances or legal doctrine, but only an appellate court can overturn a past decision for having been wrongly decided ex ante.

The stickiness of stare decisis

It was open to the Supreme Court of Canada, in Comeau, to revisit its interprovincial trade jurisprudence. The Court could have overturned Gold Seal and the line of cases that have followed it, most notably the Privy Council's judgment in Atlantic Smoke Shops Ltd. v. Conlon,14 and the Court's own decision in Murphy v. Canadian Pacific Railway Co.15 Whether or not it was appropriate to do so would have been a question of horizontal precedent, or stare decisis, rather than of vertical precedent.

In deciding whether to overrule one of its own decisions, the Court balances the virtue of certainty in the law against the Court's obligation to articulate the law correctly. The question, in each case, is whether the reasons to overturn precedent outweigh the virtues of leaving the law as it is. 16 To overrule a prior decision, the Court held in a 2012 judgment, "the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled". 17

In Comeau, the Court looked at the political and jurisdictional landscape and noted the many apple carts it would upset if it were to unsettle the federal and provincial governments' common understanding of s. 121 of the Constitution Act, 1867.18 From those governments' perspective, the rules of Canada's economic union are understood, if not universally applauded. Reading between the lines of the Court's judgment, one suspects that, even if it had agreed that Canada's longstanding approach to interprovincial trade were indeed based on a century-old misinterpretation of s. 121 — and, it should be noted, the Court explicitly declined to do so19 — then it might nonetheless have concluded that the need for certainty had to trump the need for correctness. It would have countenanced keeping an incorrect constitutional precedent to avoid inviting political chaos.

The Court's jurisprudence on horizontal stare decisis leaves room for this admittedly uncomfortable outcome. As noted above, the Court must conclude both that a precedent "was wrongly decided" and that it "should be overruled" in order to reverse it. It is with respect to second criterion that practical concerns may argue in favour of letting sleeping dogs lie.

One detects this balancing act in the background of the Comeau reasons. In the end, however, the Court avoided having to stand by an error of constitutional law. It simply concluded that no such error existed. Whether it did so purposefully, or merely incidentally, is open for debate.

For those who read the Court's jurisprudence as inconsistent with the text of the Constitution, all of this will be disheartening. It suggests that, once the Court has interpreted a provision and political actors have arranged their affairs accordingly, stare decisis will nearly always prevail, even over evidence that potentially undermines the basis of the prior decision. Judicial interpretations of constitutional provisions — the stuff of constitutional law — will not be overtaken by appeals to the text of the Constitution itself, at least at first instance. And whether such arguments fare better on appeal will have as much to do with their practical implications as with their substantive merit. This, despite McLachlin C.J.'s admonition, in Bedford, that "stare decisis ... cannot require a court to uphold a law which is unconstitutional". 20 Once lower courts take their cue from Comeau, stare decisis in Canada could become stickier than ever.

But perhaps that is as it should be. We expect our governments — and one another — to follow the law. Doing so is impossible unless the law is consistent, predictable, and intelligible. A strict approach to stare decisis can ensure that this is so, even if it means that we sometimes have to live with judicial imperfection.

The bottom line

Comeau constrains the power of trial judges to depart from binding precedent. It holds that: (1) lower courts must follow higher courts' decisions, despite evidence that those decisions should have come out differently; and (2) courts should refrain from overruling themselves, even in matters of constitutional interpretation, where overturning long-entrenched precedent would be broadly disruptive. The Supreme Court of Canada's approach to stare decisis, both vertical and horizontal, reminds lawyers and judges that a commitment to the rule of law requires more than a desire to reach the right answer; it also demands forbearance in the face of a functioning status quo.

U.S. Supreme Court Justice Robert Jackson famously said of himself and his colleagues, "[w]e are not final because we are infallible, but we are infallible only because we are final". 21 So it is with the Court's interpretation of s. 121 of the Constitution Act, 1867.

For now, anyway.

Case Information

R. v. Comeau, 2018 SCC 15

Docket: 37398

Date of Decision: April 19, 2018


1 R. v. Comeau, 2018 SCC 15 ["Comeau"].

2 Gold Seal Ltd. v. Attorney-General for the Province of Alberta (1921), 62 S.C.R. 424.

3 Comeau, at para. 34 (emphasis added), quoting Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42.

4 Comeau, at para. 36.

5 Comeau, at para. 35.

6 Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

7 In a system of common law adjudication, courts are bound by: (1) their own previous decisions; and (2) the decisions of courts that rank above them in the judicial hierarchy. The doctrine that requires courts to follow their own previous decisions is known as "horizontal" precedent, or stare decisis. The doctrine that requires courts to follow the decisions of the appellate courts over them is known as "vertical" precedent.

8 Comeau, at para. 17.

9 Carter, at para. 44, quoting Bedford, at para. 42 (emphasis added).

10 R. v. Comeau, 2016 NBPC 3, 448 N.B.R. (2d) ["trial reasons"], at para. 125.

11 Comeau, at para. 36.

12 Comeau, at para. 37.

13 Cf. E. Meese, "The Law of the Constitution: A Bicentennial Lecture" (Oct. 21, 1986), at p. 15.

14 Atlantic Smoke Shops Ltd. v. Conlon, [1943] 4 D.L.R. 81 (J.C.P.C.).

15 Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626.

16 See Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 27; see also Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 139, per Rothstein J. (concurring); Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317, at para. 140, per Côté and Rowe JJ. (dissenting).

17 Craig, at para. 25 (emphasis added).

18 See Comeau, at paras. 2-3 (emphasis added).

19 See Comeau, at para. 106.

20 Bedford, at para. 43.

21 Brown v. Allen (1953), 344 U.S. 443, at p. 540.

To view the article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions