Mark A. Gelowitz
Dec 7, 2017
The Supreme Court of Canada’s chief justice expressed concern over the uncertainty that could arise from a case that has implications for interprovincial trade barriers, according to an article in CBC News. In her article, author Bobbi-Jean MacKinnon examines the prominent case involving the appeal of a New Brunswick man, who was fined for violating the New Brunswick Liquor Control Act for bringing more than the allowable amount of alcohol across the New Brunswick-Québec border. The case also brought to the forefront the issue of Constitutional interpretation. Mark Gelowitz, partner and Co-Chair of Osler’s Corporate and Securities Litigation Group – who is representing the Montreal Economic Institute, one of the interveners in the case - explains why “it’s fortunate the Constitutional method of interpretation doesn’t rely solely on original intent.”
“We have a living tree that you are charged with tending and interpreting as it continues to grow,” Mark says, on behalf of the think tank, according to the CBC News article.
“And that’s why in our Constitutional framework, we need judges to make those kinds of decisions, particularly with respect to words that were written 150 years ago in circumstances where the framers could not have contemplated the world we live in,” Mark says.
Mark adds that interpreting the Constitution is the "core jurisdiction" of the court, according to the CBC News article, and it includes "making decisions about whether a legislative purpose falls within Constitutional boundaries.
"It is this court's role to tell us what the Constitution means. It's our job to make it work," Mark says.
"So in my submission the court must not pull its punches in correcting the mistake that was made in Gold Seal simply because it's a mistake that's been relied upon for a very long time."
For more information, read Bobbi-Jean MacKinnon’s article “Chief justice warns cross-border beer decision could create ‘uncertainty’” in CBC News.