If the Supreme Court of Canada upholds the acquittal of a New Brunswick man who was fined after being caught transporting 14 cases of cheap beer and three bottles of liquor home from Quebec, the result will be a “race to the bottom” for provincial standards protecting the public, argues a senior policy analyst for the Canadian Cancer Society.
Rob Cunningham, who is an Ottawa-based lawyer, says the Gerard Comeau case has been “mischaracterized” by some as being about allowing beer brewed in one province to be sold in another province — the so-called “free the beer” case.
He contends the case could have “serious implications” for the ability of provincial governments to adopt legislation for products such as alcohol, tobacco and marijuana, including controlling the retail distribution systems for such products.
Comeau, a retired NB Power linesman from Tracadie, was stopped at the New Brunswick-Quebec border by RCMP in 2012 and fined $292.50 for violating the New Brunswick Liquor Control Act, which sets a personal importation limit of 12 pints of beer (about 18 cans or bottles), or one bottle of wine or spirits.
He contested the charge and Campbellton provincial court Judge Ronald LeBlanc ruled in April 2016, the liquor restriction was unconstitutional. Section 121 of the Constitution Act states products from any province “shall … be admitted free into each of the other provinces.”
New Brunswick’s attorney general is now appealing LeBlanc’s decision to the country’s highest court, with the second day of hearings set to begin at 9:30 a.m. ET. on Thursday.
On Wednesday, the nine-justice panel heard arguments from New Brunswick, the federal government, seven other provinces and two territories, as well as an intervener group of agriculture supply management associations known jointly as the SM-5 Organizations.
On Thursday, Comeau’s lawyers will make their submissions, along with 11 other interveners, ranging from small wineries and beer giants, to a marijuana advocacy group and a consumer organization.
‘A single province with a weak standard could have products manufactured and exported to other provinces, regardless of more stringent standards (non-tariff barriers) in those provinces.’
– Rob Cunningham, Canadian Cancer Society
Cunningham, who says he’ll be in the Ottawa courtroom again on Thursday, supports New Brunswick’s position that provinces should have the ability to regulate harmful substances, such as alcohol.
Otherwise, he believes there would be “widespread alcohol smuggling,” with lower prices leading to increased consumption.
If LeBlanc’s ruling is allowed to stand, it would also “provide a mechanism for companies to get around provincial (and municipal) health, safety, environment and other legislation,” Cunningham states in a legal commentary, entitled R v Comeau: Reflections from the Perspective of Health.
“A single province with a weak standard could have products manufactured and exported to other provinces, regardless of more stringent standards (non-tariff barriers) in those provinces,” his paper, published on the Canadian Legal Information Institute’s (CanLII) website, states.
It could also open the door to legal challenges, such as tobacco companies seeking to overturn provincial bans on menthol cigarettes, and pesticide companies trying to overturn provincial bans on the cosmetic use of pesticides, suggests Cunningham, whose paper is cited in written submissions to the court by lawyers representing New Brunswick as well as interveners Newfoundland and Labrador and Nunavut.
Section 121 ‘unmistakably clear’
But Comeau’s lawyers contend Cunningham’s paper, “with some schadenfreude, speculates on the worst possible effects of [LeBlanc’s interpretation of Section 121] without any causal connection to the issues before the court.”
Even if Cunningham’s predictions did occur, the provinces and territories could mitigate “each and every one through true co-operative federalism,” Ian Blue, Daria Peregoudova, Arnold Schwisberg and Mikael Bernard argue in their reply factum.
“There may be concern about the work that co-operative federalism requires to resolve these possible effects, such as negotiating an end to competition among provinces for consumers based on price and selection.
“However, concern about such work does not absolve provincial officials from their duty to uphold the Constitution, nor does it allow them to argue against its proper interpretation in order to serve their parochial interests,” they write.
“The succinct, plain and mandatory language of Section 121 make its requirements unmistakably clear,” according to Comeau’s lawyers.
They assert the Fathers of Confederation intended to allow the free movement of items between provinces, unrestrained by any barriers, whether they be tariffs or non-tariff restrictions that make importing and exporting products difficult or costly.