When the country’s highest court agreed on Thursday to hear the appeal in Her Majesty the Queen v. Gerard Comeau, it agreed to consider the question, can provincial law constitutionally block interprovincial trade and commerce?
“We’re very interested in the court’s decision,” the respondent’s lead counsel, Ian Blue of Gardiner, Roberts LLP in Toronto, told Legal Feeds.
In 2012 the respondent was stopped in his car by the RCMP on his way home to New Brunswick from Quebec, and charged under New Brunswick’s Liquor Control Act with bringing 12 cases of beer into his home province that he had purchased more cheaply across the border.
Comeau chose to fight the case in court on constitutional grounds rather than pay the fine. He argued that Section 134 of the Liquor Control Act — which states that New Brunswick residents may only purchase, have or keep liquor from the New Brunswick Liquor Corporation, with some exceptions as provided by the Act or the regulations — violated section 121 of the Constitution Act, 1867, which says that “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 Crown’s arguments to the Supreme Court in this case will no doubt refer to that court’s decision in Gold Seal Ltd. v. Alberta (Attorney-General), (1921), 62 S.C.R. 424, which established the governing interpretation of s. 121.
In that decision, Supreme Court Justice Pierre-Basile Mignault found that the section merely barred the levying of customs duties on goods moving between provinces, writing that “the object of section 121 was not to decree that all articles of the growth, produce or manufacture of any of the provinces should be admitted into the others, but merely to secure that they should be admitted ‘free,’ that is to say without any tax or duty imposed as a condition of their admission. The essential word here is ‘free’ and what is prohibited is the levying of custom duties or other charges of a like nature in matters of interprovincial trade.”
“We thought that was wrong,” says Blue. “Starting in 2010 I started writing on s. 121, and the view I put forward was that 121 was broader than that. We argued that case before His Honour Judge [Ronald] LeBlanc of the New Brunswick provincial court.”
In April 2016, judge LeBlanc agreed and acquitted Comeau of the charge. In an 85-page decision that “was as clear and as stellar as any provincial court of appeal” could have produced, Blue says, judge LeBlanc said s. 121 should not “be read so narrowly” as it has been. The New Brunswick court of appeal declined to hear the Crown’s appeal of the decision, and the Supreme Court “may uphold Judge LeBlanc in whole or in part,” but are unlikely to uphold the court’s 1921 decision, says Blue, who believes the case has significant implications for trade both within and outside of Canada.
“The broader interpretation of s. 121 would inhibit provincial liquor monopolies, which are established by federal law [that says] any liquor entering a province has to be sold through the liquor control board of the province.” It would also have implications for the dairy marketing boards in Canada, he says.
“Everyone in Canada is looking at trade issues” in light of U.S. President Donald Trump’s complaints about and threats toward NAFTA, and the European Union’s support of one of those complaints in regards to a new Canadian pricing scheme for a concentrated milk protein. “Any of those [free-trade] initiatives will be grossly affected by what the Supreme Court decides in this case,” Blue told Legal Feeds. “That’s what it’s really about.”
Blue also expressed satisfaction that the Supreme Court will grant costs to his client “in any event of the cause,” meaning that Comeau’s legal costs will be paid whether he ultimately wins or loses the case.