Supreme Court hears ‘free the beer’ case

Prov­inces, farm­ers wor­ried about loos­ened trade

Ottawa Citizen - - FRONT PAGE - BRIAN PLATT

A re­tired New Brunswick man’s $292.50 ticket for buy­ing booze in Que­bec at a slight bar­gain and bring­ing it home to drink has landed in the Supreme Court of Canada where Crown at­tor­neys from across the coun­try ar­gued on Wed­nes­day that the case threat­ens the very foun­da­tion of Cana­dian fed­er­al­ism.

Ger­ard 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.”

The Supreme Court agreed to hear the case af­ter the New Brunswick Court of Ap­peal de­clined to hear the provin­cial gov­ern­ment’s ap­peal.

On Wed­nes­day, Brian Platt re­ports, 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 non­govern­ment in­ter­ven­ers speak­ing against Comeau’s side.

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.

OT­TAWA • 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 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.

IF THE SUPREME COURT SIDES WITH COMEAU, A SWATH OF PRO­TEC­TION­IST BAR­RI­ERS SET UP BY THE PROV­INCES COULD FALL.

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