R. v. Comeau THE CONSTITUTIONAL CHALLENGE TO INTERPROVINCIAL TRADE - - PowerPoint PPT Presentation

• R. v. Comeau

THE CONSTITUTIONAL CHALLENGE TO INTERPROVINCIAL TRADE BARRIERS: A PRESENTATION TO THE CANADIAN VINTNERS ASSOCIATION, JUNE 21, 2017

About the CCF

The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion. Mission: “We protect the constitutional freedoms of Canadians through education, communication and litigation.”

Gérard Comeau

The facts

2 cases of 24 bottles of Sleeman’s Light beer; 2 cases of 24 bottles of Miller Genuine Draft beer; 2 cases of 24 bottles of Molson M beer; 3 cases of 20 bottles of Budweiser Light beer; 3 cases of 20 bottles of Budweiser beer; 3 cases of 30 cans of Coors Light beer; 2 bottles of whiskey, 750 ml per bottle; and 1 bottle of Stinger Premixxx liqueur, 1.4 litre.

= $292.50 fine

The law

Liquor Control Act (NB)

• S. 134 Except as provided by this Act or the regulations, no person, within the Province, by

himself, his clerk, employee, servant or agent shall (a) attempt to purchase, or directly or indirectly or upon any pretence, or upon any device, purchase liquor, nor (b) have or keep liquor, not purchased from the Corporation. Exception: (c) liquor not in excess of one bottle or beer not in excess of twelve pints purchased outside New Brunswick from a liquor commission, board or similar body in any province or territory of Canada by such person or by a person from whom he received it as a bona fide gift.

The Constitution

s.121 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 history

• 1854 – 1866: Canada-US Reciprocity Treaty
• 1861 – 1865: U.S. Civil War
• 1864 – 1866: “Search and Detain”
• 1864 – 1867: Confederation

The intent

“Union of all Provinces would break down all trade barriers between us, and throw open at once…a combined market of four millions of people . . . in short all the advantages of free intercourse which has done so much for the United States, would at once be

• pen to us all”.

George Brown, Sept. 12, 1864

The decision

“I find that section 121 of the Constitution Act, 1867 has not fallen into

• desuetude. Its disuse or neglect has arisen as a result of an unfounded judicial

interpretation which effects have continued for nearly a century. “Section 134(b) of the Liquor Control Act of New Brunswick constitutes a trade barrier which violates section 121 of the Constitution Act, 1867 and is therefore of no force or effect as against Gérard Comeau.” Mr Justice Ronald LeBlanc, R. v. Comeau

The effects

Complete victory:

• Affirm the reasons provided by the trial court
• No restrictions on shipping wine directly to a consumer;
• Could undermine Importation of Intoxicating Liquors Act;
• Could bypass provincial alcohol sales monopolies;
• Manitoba-style regime: purchasing from producers or retailers
• Limitation: “All articles of the growth, produce, or manufacture of any one of the provinces …”

The effects

Partial victory:

• Granholm-style compromise;
• Australian-style compromise, mutual recognition with courts stepping in to strike down measures that

appear protectionist, discriminatory, or confer a local advantage

• E.U.: Cassis de Dijon (1979), established that “any product lawfully produced and marketed in one

member state, must, in principle, be admitted to the market of any other member state”

The best opportunity in a century

• Agreement on Internal Trade
• Weak enforcement mechanism
• Artisan Ales case
• Canadian Free Trade Agreement
• Exempts Alcohol, working group to report back in a year
• Don’t hold your breath
• R v. Comeau
• Judicially-backed direction to provinces to open up their markets
• Hearing in December 7, 2017; decision expected in Spring 2018

The CCF’s support of Mr. Comeau

• $200,000 budget
• Includes fees, disbursements, and communications
• Canada’s s.121 expert, Ian Blue, QC
• Lead counsel
• Intervenors in support of Mr. Comeau
• Supportive coalition: problems with trade barriers and benefits of loosening them