Border booze case goes to top court
New Brunswick appeal could bring down provincial trade barriers, lawyer says
OTTAWA— The Supreme Court of Canada will take a look at what the fathers of Confederation really meant by a constitutional clause about free trade among provinces in a case that started over some cases of beer and three bottles of liquor.
The court agreed Thursday to hear a Crown appeal of a New Brunswick ruling overturning a ban on bringing alcohol across provincial borders.
There were no written reasons provided, though the court took the uncommon step of awarding costs to the defendant for the submissions.
The case now stands a chance of altering over a century’s worth of provincial supply-management systems, Crown monopolies on alcohol and other non-tariff barriers erected within the federation, defence lawyer Arnold Schwisberg said.
“I’ve said to the politicians, please don’t let us down, be prepared to have some kind of transitional plan in place should limitations on the cross border movement of alcohol and supply-management systems change in the new era,” he said in an interview.
The case sprang to prominence last year when a provincial court judge threw out all charges against retiree Gérard Comeau after he was ticketed for importing 14 cases of beer and three bottles of liquor from a Quebec border town.
In an 88-page decision, Judge Ronald LeBlanc said the original framers of the Constitution never intended that laws should blatantly block the free flow of goods within their new country.
The New Brunswick Liquor Control Act prohibits anyone in the province from having more than 12 pints of beer not purchased through a liquor store in the province, which the judge called unconstitutional.
The New Brunswick Court of Appeal declined to hear the Crown’s appeal.
Comeau, who was fined $292.50 in 2012, has the support of the Canadian Constitution Foundation as his fight moves to the country’s highest court.
Schwisberg said he’s confident the historical evidence expert witnesses gave at trial has the potential to overcome prior decisions by the top court.
During the New Brunswick trial, historians presented fresh arguments suggesting the framers of the Constitution created s.121of the British North America Act with the express intention of avoiding all forms of non-tariff barriers. The section reads, “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.”
Court heard from historian Andrew Smith that the provision was constructed to deliberately avoid referring to duties or tariffs because it was meant to prohibit all forms of trade barrier, and keep the Canadian market open at a time trade barriers were being erected by the Americans.
In a news release Thursday, the New Brunswick Crown said it will submit its pleas “on the important issue of Article 121 of the Constitution and its impact on provincial authority to regulate alcoholic beverages within New Brunswick borders.”
“There will be no further comments until this matter is concluded,” said the release.
New Brunswick has warned the Comeau case has upended decades of legal thinking and strikes at the heart of Canadian federalism.
The original ruling, and a refusal by the province’s Appeal Court to review the decision, could hamper government control over interprovincial trade and create nationwide confusion around the extent of provincial authority, New Brunswick says.
Schwisberg said he expected the Supreme Court is likely to begin hearing the case some time in the first half of next year.