‘Free the beer’ case reaches top court
Provinces, farmers worried about loosened trade
• A retired New Brunswick man’s quest to buy booze in Quebec at a slight bargain and bring it home to drink has landed in the Supreme Court of Canada, where on Wednesday Crown attorneys from across the country argued the case threatens the very foundation of Canadian federalism.
“This case began as a simple ticket offence,” said the argument from the New Brunswick government. “A simple case it is not.”
The province contends that overturning the $292.50 ticket Gerard Comeau received for bringing 14 cases of beer and three bottles of liquor across the provincial boundary would mean “an end to Canadian federalism as it was originally conceived, has politically evolved and is judicially confirmed.”
Comeau has already won in New Brunswick provincial court, which ruled in 2016 that the prohibition on possessing alcohol purchased outside the province violates section 121 of Canada’s Constitution Act, 1867, which says “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” After the New Brunswick Court of Appeal declined to hear the government’s appeal, the Supreme Court of Canada agreed to hear it out.
On Wednesday, the country’s top court began hearing R v. Comeau — or as some have called it, the “free the beer” case — as nearly every province and territory lined up to argue why they must be allowed to limit the movement of alcohol across borders within Canada, the federal government siding with them.
The court also heard a joint submission from dairy, egg, chicken and turkey farmers, the only non-government interveners speaking against Comeau’s side.
They said allowing his victory to stand “could result in the destruction of supply management — a regulatory system in place for generations, on which the livelihood of thousands of farmers across Canada depends.”
The ramifications of the case go much further than alcohol. If the Supreme Court sides with Comeau, a swath of protectionist barriers set up by the provinces could be next to fall, affecting industries from agriculture to e-commerce.
R v. Comeau is being watched closely by business groups, academics, and libertarians who have long bemoaned Canada’s provincial trade barriers. Although the provinces and federal government recently announced a “Canadian Free Trade Agreement” that reduced some of the barriers, the agreement carved out a wide array of exceptions, including for alcohol, financial services and supply management.
Although the provinces and territories were united in cause, they differed in their approach. A few of them, including New Brunswick, emphasized the publicpolicy imperative of strictly controlling alcohol within their jurisdiction, and acknowledged generating revenue was a key element.
“The province has a very legitimate interest in raising money through the sale of alcohol, and therefore the control of alcohol,” said New Brunswick Crown prosecutor Bill Richards. “So I’m not shying away from the fact that this is a money-maker, and it would be silly to do so. It is, but it’s necessary to fulfil the constitutional obligations of the province.”
Others explicitly said money wasn’t their motivating factor.
“We submit that alcohol regulation in Nunavut is not a question of trade,” said John Maclean, counsel for the territory. “For us, it’s a question of protecting public health and safety ... For us, it’s not about money.”
One of the key questions in the case is whether the provinces are justified in keeping a liquor monopoly and appearing to violate s.121 because their primary policy goals are squarely within provincial jurisdiction, and the restriction on interprovincial trade is incidental.
The provinces are also essentially asking the Supreme Court to keep its interpretation of s.121 as set out in a 1921 case involving the Alberta liquor importer Gold Seal. The court ruled in that case that s.121 only
IF THE SUPREME COURT SIDES WITH COMEAU, A SWATH OF PROTECTIONIST BARRIERS SET UP BY THE PROVINCES COULD FALL.
prohibited provinces from setting up customs or excise duties on interprovincial trade, not other types of nontariff barriers.
At times the arguments veered into discussions about the original intent of Canada’s founding documents, with the provinces emphasizing the “organically evolving” nature of a constitutional clause dating back to 1867.
“The question before the Court therefore ought to be considered in light of our whole experience — from colonies to partners — and not simply by what was said more than 150 years ago,” said the factum from Prince Edward Island.
The court will hear the other side of the case on Thursday.