Pour one out for free trade in Canada

Remigio Civitarese
Aprile 20, 2018

Ian Blue, one of the lawyers who represented Comeau, said Thursday his team is "very disappointed" by the Supreme Court ruling.

Comeau's defence centred on section 121 of the Constitution Act, which states products from any province "shall ... be admitted free into each of the other provinces". Despite the case's focus on alcohol, Cannabis Culture argued that the case could have a large impact on the distribution of cannabis, and sought the court to side with Comeau over his province.

The case also had the potential to affect the escalating crisis over the Kinder Morgan pipeline expansion, as B.C. and Alberta threaten various measures to restrict provincial trade.

The court found that the main objective of New Brunswick's law was to manage the supply of alcohol in the province, not to restrict interprovincial trade, and was therefore constitutional.

"There is debate about whether s. 121 applies equally to provincial and federal laws", it said. That question was not before the court and so was not addressed, it said.

The Supreme Court ruled that the provincial judge erred by striking down prohibition-era case law from 1921. It speaks to some important wider principles about inter-provincial free trade. "We further conclude that s. 121 prohibits governments from levying tariffs or tariff-like measures (measures that in essence and objective burden the passage of goods across a provincial border); but, s. 121 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". "No federal law is properly at issue in the present appeal and so the question need not be resolved here".

In Friday's ruling, the judges went to great lengths to explain that the bar to overturn precedents is a high one, after the Supreme Court's 2013 decision to reverse its stance on prostitution laws created confusion in the legal community about when the court will revisit earlier rulings.

The ruling was written by "The Court" as a whole, meaning no one author is credited, however it was clear during oral arguments that many judges including the retiring Chief Justice Beverley McLachlin had grave reservations about being asked to upend practices that, under Canada's version of federalism, had developed over more than a century.

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.

"The court's ruling today is disappointing for the B.C. wine industry", said Miles Prodan president and CEO of the B.C. Wine Institute in a news release.

Generally the provincial and federal position was that it's always been done this way and it's been fine. The Crown then appealed the decision to the SCOC, asking the top court to rule that the provincial Liquor Control Act does not violate the Constitution Act.

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