Law Times

Law Times • may 7, 2018 Page 7 www.lawtimesnews.com Lowest price is not always the law BY PHILIP GIRARD W hen Gerard Comeau drove over the Van Horne Bridge back into New Brunswick after purchasing 15 cases of beer and three bottles of spirits in Que- bec, he probably did not expect to make legal history. In R. v. Comeau, the Su- preme Court of Canada stated that Co- meau did "what many Canadians who live tantalizingly close to cheaper alcohol prices across provincial boundaries prob- ably do. He visited three different stores and stocked up." Comeau's purchases became a battle- ground for differing interpretations of one of the more obscure clauses of the British North America Act 1867: s. 121, which states that "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall . . . be admit- ted free into each of the other Provinces." Legal historians provided important evi- dence for the courts faced with this inter- pretive challenge. Charged under s. 134(b) of the New Brunswick Liquor Control Act, Comeau would be subject to a fine of $292.50 if convicted. During the trial before Pro- vincial Court Judge Ronald LeBlanc, Comeau argued that the section contra- vened s. 121. The case took on a particular political colouring from the outset. One of Comeau's counsel at trial was the well- known advocate of libertarian causes, Ontario lawyer Karen Selick. (Her licence plate reads CUT GOVT). In the Gold Seal case of 1921, the Supreme Court opted for a narrow reading of s. 121, saying it directed only the dismantling of existing customs posts and was not aimed at non-tariff barriers. The Privy Council agreed, as has subsequent case law. Over- coming this precedential bur- den would not be easy. The principal defence witness was Dr. Andrew Smith of the University of Liv- erpool, author of a book on British busi- nessmen and Canadian Confederation. Based on the reaction to the abrogation of the Reciprocity Treaty with the U.S. in 1866, Smith argued that Canadian poli- ticians were anxious to secure internal free trade to make up for the loss of U.S. markets. Section 121 was thus meant to be given an expansive interpretation, pro- hibiting both tariff and non-tariff barriers to internal trade. LeBlanc considered the evidence of another expert with oppos- ing views, but he preferred Smith's read- ing. He considered it to amount to "new evidence" permitting him to depart from established precedent, and he acquitted Comeau. The Supreme Court agreed to hear the case when the New Brunswick Court of Appeal declined to grant leave to appeal. Not surprisingly, the court was less than keen about the trial judge's deci- sion to evade Gold Seal and its progeny. It unanimously reversed on the basis that a novel historical interpretation did not justify departing from precedent. In considering the substantive point, it went on to uphold the traditional in- terpretation of s. 121. Here, the court's historical analysis mir- rored that provided in the expert witness affidavit of independent historian Chris- topher Moore, albeit without citing it. Moore observed that s. 121 was a late addition to the BNA Act and gener- ated little discussion. This suggests that it was not meant to compete with strongly entrenched ideas about provincial gov- ernments' authority to support local industries in various ways. Small and struggling colonies could not afford lais- sez-faire; they were expected to intervene in the economy and stimulate growth. Moreover, most discussion of "free trade" in the world at the time equated it with the removal of tariffs. It was a bit surprising to me that no one considered the language of the U.S. con- stitution, as did Pierre-Basile Mignault in Gold Seal. Article 1(9) states, "No tax or duty shall be laid on articles exported from any state," but adds, "No prefer- ence shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another." Mignault was saying, in effect, that if the fathers really wanted complete free trade, this was the way to do it. Section 121 is one of those opaque clauses whose ambiguity encourages par- ties to invest it with their preferred mean- ing. In an age of populist discontent, it is not surprising that it would be seized on as a means of combatting government regulation seen as inconvenient or op- pressive. The Supreme Court gave no encouragement to such views, in effect reminding the parties that any remedy lies in the political sphere. If you don't like the provincial liquor monopoly, then try to get it abolished or modified. The opinion of historians will always be needed to provide context when the historical actors have not left clear evi- dence of their own views. But the diver- gent approaches of historians leave the courts, appropriately, in the drivers' seat, obliged to make the final decision as to whose history counts in constitutional terms. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He is also associate editor at the Osgoode Soci- ety for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Stop the commercialization of surrogacy BY ERIN LEPINE I n March, federal MP Anthony Housefather an- nounced his intention to introduce a private member's bill to decriminalize payment in sur- rogacy, egg donation and sperm donation ar- rangements in Canada. If successful, this would be a drastic shift from the current law, which strictly pro- hibits commercial surrogacy and gamete donation in Canada, imposing a maximum fine of $500,000 and a maximum prison sentence of 10 years (or both) to any- one who contravenes these prohibitions. Housefather alleges that those most expert and involved in fertility are completely unanimous in their support for com- mercialization. I respectfully disagree. I am a lawyer who actively practises in fertility law. I do not support the commer- cialization of surrogacy or gamete donation in Canada. Commercialization of surrogacy, egg donation and sperm donation in Canada would work in the face of core Canadian values — the values that informed the altruistic nature of the Assisted Human Reproduction Act when it was enacted and values that remain rel- evant (not outdated as Housefather has suggested) in Canadian society today. As lawyers in Ontario, we should be actively work- ing to protect these Canadian values while balancing the rights of all vulnerable groups whose lives may be impacted by surrogacy, egg donation and sperm dona- tion in Canada. The first value is around prohibiting trade in the hu- man body. I believe the majority of Canadians still agree that the sale and purchase of body parts and human tis- sues should continue to be prohibited in Canada. The concept of selling your liver, kidney or even blood in Canada is strongly opposed. Can we truly treat sperm, eggs and embryos as something different from all other bodily tissues? If we place sperm, eggs and embryos on the market, then are we not also com- mitting to a discussion on the sale of all body parts? Moreover, what value do you give to the use of a wom- an's reproductive capacity and how would that value be measured? The second value is around the health and well-being of women and promoting informed consent. The com- mercialization of surrogacy and gamete donation will place women at higher risk than men donating sperm. The medical procedures that a woman must undergo to complete an egg donation or act as a surrogate are onerous and risky. Once you place a woman acting as a surrogate or donor in the position of being an "em- ployee" to the intended parents, her power to make an informed decision about what medical procedures she will undergo is minimized, and she is more likely to take medical risks that she would not have otherwise taken. Her decision will be made with the wishes of the in- tended parents at top of mind, as she will feel a commit- ment to those individuals who have invested their own money and emotion into her body. The "my body, my baby" tug of war will be far more real than it already is, where women acting as surrogates are prepared to sac- rifice their own choices because of their concern for the expense the intended parents are facing paying for the lawyers, the fertility clinics and the surrogacy agency. The my body, my baby struggle is already a problem in the current altruistic model. This problem shouldn't be inf lated any further. The third value is around protecting women and children from exploitation. If a woman's reproductive capacity can be used to earn money, then the lure of an income for donating eggs or allowing someone to use her womb puts economically vulnerable women — who may not appreciate the risks involved in the process and may not have the funds to access the necessary advice or services needed to fully understand those risks — at risk of exploitation. Other countries, such as Thailand and India where commercial surrogacy has been permitted, are now changing their laws to better protect women and chil- dren from these risks of exploitation and human traf- ficking based on their own experiences where these problems could no longer be ignored. With this in mind, we must ask ourselves if moving toward com- mercial surrogacy would really be symbolic of Canada "catching up" with other countries. The fourth value is around protecting children from being treated as commodities. We do not buy and sell children in Canada. Adoption laws strictly prohibit payment for a child, and I am not aware of anyone who has taken offence to this or wants to see this changed. But, if we are going to approve a financial transaction where the "product" is a child, then how can we do this without also having to review our policy on adoption? A little historical context is also useful. The topic of commercializing surrogacy and gamete donation in Canada has recently received a lot of press. Notably, Housefather's proposed bill is not the first of its kind. In 2014, the then MP for Peterborough, Dean Del Mastro, introduced a similar private member's bill seeking to repeal the same sections of the Assisted Human Reproduction Act that Housefather is target- ing. However, Del Mastro's private member's bill did not make it past first reading and received little, if any, press. So, why should we care this time around? First of all, Housefather has surrounded himself with a group of individuals who support the commer- cialization of surrogacy and gamete donation in Can- ada, including the president of the Liberal Women's Caucus. Secondly, Prime Minister Justin Trudeau has said that decriminalizing payment for surrogacy and gamete donation is an "extremely important issue" and that when the proposed bill is introduced there will be a discussion "about rights and responsibilities that we share as a society." I welcome an honest discussion on the question of commercialization and I hope that one takes place. I also hope that Parliament takes the time to seek out and listen to all sides of the argument, to consider what interests each person has in the commercialization de- bate. I encourage Parliament and other policy-makers to ask themselves whether the person or group advo- cating for commercialization also stands to gain from commercialization. Finally, I urge all of us to seriously consider the impact such a drastic change in Canadian policy will have on truly vulnerable persons that Cana- da has worked so hard to protect in recent history. LT uErin Lepine is a partner at Nelligan O'Brien Payne LLP in Ottawa, where she practises family law and fer- tility law. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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