New Brunswick seeks leave to appeal ruling on cross border beer imports

FREDERICTON – A New Brunswick judge has reserved decision on whether a cross-border beer battle with possible national implications for interprovincial trade can be appealed directly to the province’s highest court.

Provincial government lawyers are seeking leave to appeal the April ruling that effectively threw out limits on cross-border alcohol imports.

Justice Margaret Larlee of the Court of Appeal must decide if the case can skip a hearing at Court of Queen’s Bench and go directly to the New Brunswick Court of Appeal.

Crown lawyer Kathryn Gregory told the court Thursday that arguing the case again at the Court of Queen’s Bench level would be redundant.

“We felt this was an appropriate case to go directly to the Court of Appeal,” she said. “Leave should be granted in cases where there are issues of a national significance.”

Defence lawyer Ian Blue agreed, adding that going to the Court of Queen’s Bench would add a lot of expense for his client and tie up the resources of the courts.

Blue said the case has broad public importance and would likely end up in the Court of Appeal at some point anyway.

“If the decision is upheld, it will have implications across the country,” he told the court.

Blue said his client does not oppose having the case go to the Court of Appeal.

Provincial court Judge Ronald LeBlanc tossed out all charges against Gerard Comeau, who was charged with illegally importing 14 cases of beer and three bottles of liquor from a Quebec border town in October 2012.

Beer near the border in Quebec 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.

Comeau was under surveillance by the RCMP and was arrested and charged under section 134(b) of the Liquor Control Act after he drove over the J.C. Van Horne bridge back into Campbellton, N.B.

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.

In his lengthy decision, Judge LeBlanc cited the words of Canada’s founders, saying they never intended that laws should blatantly block the free flow of goods within the new country.

The Crown argues the judge erred in his legal interpretation of both the Constitution Act and the Liquor Control Act.

Outside the court, Blue said the case needs to have a complete debate because of its potential to have an impact across Canada.

“Provincial liquor monopolies are at stake. It means that provincial marketing boards may not be constitutional, and a lot of things the provinces do to protect their own citizens may not be constitutional. All this is to be worked out,” Blue said.

The Crown lawyers declined comment outside court, but Blue said he expects the case will eventually have to be determined before the Supreme Court of Canada.

Justice Larlee said she would try to have her decision soon, but did not set any date.