Top court asked to hear cross-border beer case with 'far greater implications'

FREDERICTON – A spirited battle over the right to bring beer across provincial borders could be headed to the Supreme Court of Canada, in a case that could have broad national trade implications.

“The decision really does have the potential to affect the very fabric of the commercial structure of Canada,” said Arnold Schwisberg, lawyer for a New Brunswick man acquitted of illegally importing 14 cases of beer and three bottles of liquor from a Quebec border town in 2012.

In April, provincial court Judge Ronald LeBlanc tossed out all charges against Gerard Comeau, citing the Constitution when he stated that Canada’s founders would never have intended that laws should blatantly block the free flow of goods within the new country.

On Tuesday, New Brunswick’s prosecution service said in a brief statement it will seek leave to appeal the ruling.

“The implications of this decision are far greater than simply addressing the purchase of alcohol,” the statement read. “It concerns issues of inter-provincial trade with significant consequences.”

Schwisberg said he was pleased the matter may be heard in the Supreme Court and elevate a matter of national significance.

“It’s going to get an important issue heard by the top court in a very transparent way,” he said from his office in Markham, Ont.

Schwisberg said it could have the power to shift a host of laws across the country that govern everything from selling chickens to how professionals work across provincial lines.

He said a top court ruling in Comeau’s favour could effectively throw out Canada’s marketing board system, allowing for the free trade of goods while bringing food prices down as a result. He went further, saying a Supreme Court ruling could also have the effect of doing away with licensing standards that prevent engineers and other professions from moving easily between provinces.

“It could by extension affect the inter-provincial movement of any Canadian product,” he said.

During the trial, court heard that Quebec beer near the border is about half the price charged in New Brunswick, but the Liquor Control Act prohibits anyone in New Brunswick from having more than 12 pints of beer that wasn’t purchased through a liquor store in the province.

The defence argued that section 134(b) of the Liquor Control Act is not an enforceable provincial law because it constitutes a trade barrier that is contrary to section 121 of the Constitution Act, 1867 which states: “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,” and is therefore unenforceable.

The Crown argued that regardless of Section 121 of the Constitution Act, there are policies in place that limit free trade between provinces.

Last month, an appeal court judge dismissed an application by the prosecution service to appeal the trial judge’s decision. The judge did not offer an explanation.

Comeau was one of four people charged after a police “sting” operation in 2012. The New Brunswick Liquor Control Act prohibits anyone in the province from having more than 12 pints of beer that wasn’t purchased through a liquor store in the province.

— By Alison Auld in Halifax