Friday, April 20, 2018

Supreme Court "free beer" decision: good history, good law

I was on my way to a conference yesterday when my phone told me the Supreme Court of Canada had unanimously overthrown a lower court's finding that s.121 of the British North America Act prevents the provinces from taking steps to manage and encourage economic and social development within their boundaries. Since the SCC's position is pretty much what I had proposed in an expert witness affidavit that became part of the case, I was kinda chuffed. (Full text of the decision is here.  And my affidavit is here.)

I'm happy enough that the SCC decision makes not the slightest reference to my evidence -- historians should make history, not law, and the judges start out by rejecting the notion that any particular expert's opinion should overturn settled law.

Still, of all the historical evidence presented to the various courts drawn into this controversy, mine is most compatible with the constitutional vision set out by the Supreme Court: mainly, that the overarching principle of the constitution is a federal one, in which the provinces are responsible governments whose powers and responsibilities cannot be arbitrarily wrenched away, either by a higher level of government or by a few words torn out of context from the constitutional document.

I'm claiming the win. Bring me the finest muffins and bagels in the land.

Update, 25 April: Andrew Smith, the principal historical consultant to the losers in Comeau, declares that he has been sustained by the Supreme Court  -- though the lawyers who retained him are pretty clear that they took a shellacking. Smith's blog has also praised and linked to this analysis by legal scholar Leonid Sirota, who also understands what a firm rejection the court delivered to the vision of an all-powerful s.121. 
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