‘FREE THE BEER’ CASE FIZZLES
Top court upholds booze barriers
After a legal battle fought all the way to Canada’s highest court, a New Brunswick man’s quest to be able to buy slightly cheaper alcohol in a neighbouring province has failed. In a unanimous decision handed down Thursday, the Supreme Court of Canada ruled provincial trade barriers are constitutional as long as they’re aimed at a valid purpose within the province’s jurisdiction, with only an incidental effect on trade. Canada’s Constitution simply “does not impose absolute free trade across Canada,” it declared.
The ruling concluded that New Brunswick’s prohibition on residents buying alcohol from anywhere other than the New Brunswick Liquor Corporation was constitutional because it isn’t primarily meant to stop interprovincial trade.
“The objective of the New Brunswick scheme is not to restrict trade across a provincial boundary,
but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick,” the decision says.
“New Brunswick’s ability to exercise oversight over liquor supplies in the province would be undermined if non-Corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers.”
On its face, the case was about booze. But had the challenge been successful, the precedent could have struck down a massive swath of provincial trade barriers, from agricultural supply management to e-commerce to environmental controls. Crown attorneys from every province had lined up at the Supreme Court to argue against the challenge, with the federal government siding with them.
The ruling declared that allowing “full economic integration” within Canada would “significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation.” Federalism means there must be “space to each province to regulate the economy in a manner that reflects local concerns,” the court ruled.
What became known as the “free-the-beer” case started six years ago, when Gerard Comeau was fined $292.50 after the RCMP had set up a sting operation on a Quebec liquor store near the New Brunswick border. He was pulled over after transporting 14 cases of beer and three bottles of liquor over the provincial boundary.
Comeau challenged the ticket as unconstitutional, citing 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.”
Remarkably, the provincial court judge agreed with him and declared New Brunswick’s alcohol prohibition unconstitutional. The New Brunswick Court of Appeal declined to hear the government’s appeal.
The Supreme Court ruled that the provincial judge erred by striking down prohibition-era case law from 1921. The judge had accepted evidence from a historian that this 1921 ruling had not properly considered the context of s. 121.
“If a constitutional provision could be reinterpreted by a lower court whenever a litigant finds an expert with an alternate interpretation, the common law system would be left in disarray,” the Supreme Court said.
Only new evidence that “fundamentally shifts the parameters of the debate” can justify overturning a binding precedent, the ruling said, pointing to the Supreme Court’s justification for striking down Canada’s prostitution laws in the Bedford ruling.
The ruling said Comeau’s side couldn’t use an all-encompassing interpretation of “admitted free” in s. 121.
“Section 121 does not impose absolute free trade across Canada,” it says. Tariffs may not be allowed, but the section “does not prohibit governments from adopting laws and regulatory schemes directed to other goals that have incidental effects on the passage of goods across provincial borders.”
Shortly after Comeau was given the ticket, his case was picked up and financially supported by the Canadian Constitution Foundation, which fights against provincial trade barriers as unconstitutional. Lawyers Ian Blue and Arnold Schwisberg also donated huge amounts of time pro bono to Comeau’s case, said executive director Howard Anglin.
He said the court’s decision is disappointing and a missed opportunity.
“I think they showed a lack of imagination,” he said.
But he noted the court at least recognized trade barriers as a problem, and provides some examples where they could still be challenged.
“We’re going to comb through the ruins here and see what treasures we can pick out,” Anglin said, pointing to the sanctions B.C. and Alberta have threatened on each other over the Kinder Morgan pipeline as an example of unconstitutional laws.
Comeau, meanwhile, told New Brunswick media this week that he’s still buying his beer in Quebec, and would still like to be reimbursed for the seized alcohol in 2012.