Calgary, AB—The New Brunswick Attorney General announced this morning that it plans to appeal the New Brunswick Court of Appeal’s (NBCA) decision in R. v. Comeau to the Supreme Court of Canada. If leave is granted by the Supreme Court of Canada, the Canadian Constitution Foundation (CCF) looks forward to continuing to support Mr Gérard Comeau in defending our Constitution’s guarantee of free interprovincial trade before the highest court in the land.
Today’s announcement comes because, on April 29, 2016, Judge Ronald LeBlanc of the New Brunswick Provincial Court threw out a $293 fine against Mr. Gérard Comeau for bringing beer from Quebec to New Brunswick and struck down the associated provincial law as an unconstitutional trade barrier in violation of section 121 of the Constitution Act, 1867.
In response to Gérard Comeau’s legal victory, the Attorney General applied to the NBCA for leave to appeal directly to the NBCA, the highest court in the province, instead of first appealing to the Court of Queen’s Bench. On October 20, 2016, the NBCA denied the application. It is this decision that the Attorney General is appealing.
Late in 2012, a New Brunswick resident, Gérard Comeau, crossed a bridge into Quebec to buy beer and spirits. Like many other New Brunswickers, Gérard did this to take advantage of Quebec's lower prices. After purchasing his beer and spirits, Gérard made his way home. What he didn’t know was that his legal purchase of alcohol and his drive home were under police surveillance as part of a sting operation.
When he entered his home province of New Brunswick, the RCMP apprehended Gérard, confiscated his beer and spirits, and issued him a fine for $292.50 because he had exceeded New Brunswick's personal exemption import limit of 12 pints.
Most people targeted in that sting operation paid their fines and gave up their alcohol without a fight. Not Gérard. He was determined to fight the fine because he believed that it is outrageous that he—as Canadian citizen—could not purchase a legal product wherever he wanted within Canada and bring it home to New Brunswick.
The Canadian Constitution Foundation eagerly joined forces with three lawyers, Mikael Bernard, Arnold Schwisberg and Ian Blue, QC, who generously donated their time on a pro bono basis, to help Gérard..
At the August 2015 trial in Campbellton, New Brunswick, Gérard’s lawyers argued that the province was imposing an unconstitutional barrier to interprovincial trade under section 121 of the Constitution Act, 1867. That provision, sometimes called the Constitution’s “free trade clause” 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.
On April 29, 2016, Judge LeBlanc agreed with the CCF and struck down section 134(b) of New Brunswick’s Liquor Control Act. In his decision, Judge LeBlanc ruled that section 121 was “clearly intended” to encourage free trade between the provinces and that a law like New Brunswick’s that interferes with this right is unconstitutional.
Comeau Case is about a Legal Issue of National Importance
The AG’s press release says:
"The prosecution of Gérard Comeau for an offence contrary to section 134 of the Liquor Control Act has attracted considerable attention. The implications of this decision are far greater than simply addressing the purchase of alcohol. It concerns issues of inter-provincial trade with significant consequences."
Judge LeBlanc recognized this too in his April 2016 ruling when he said:
"I am certain that interpreting section 121 of the Constitution Act, 1867 as permitting the free movement of goods among the provinces without barriers…will have a resounding impact. Indeed, the consequences of this finding could be significant."
Derek From, a lawyer with the Canadian Constitution Foundation in Calgary, said:
“The best estimate is that the Canadian economy is losing between $50 and $130 billion dollars each year as a result of trade barriers that exist within Canada. These barriers, which harm Canadians of all walks of life from across the nation, are why the constitutional issues in the Comeau case are of national importance.
“The Canadian Constitution Foundation believes that the Comeau case needs to be heard by the Supreme Court of Canada, where we would welcome the opportunity to defend the constitutional rights enshrined in s.121 of the Constitution Act, 1867.”
And Howard Anglin, the Canadian Constitution Foundation’s Executive Director, said:
“The provinces have shown time and again that they will put their narrow interests ahead of the good of Canadian consumers and producers, and ahead of the Constitution itself. It’s long past time for the Supreme Court to enforce the Constitution’s free trade guarantee and tear down the unconstitutional walls the provinces have erected to the free flow of goods across Canada.”