In R. v. Comeau, 2018 SCC 15, Gudmundseth Mickelson LLP acted for a large coalition of British Columbian small and boutique wineries intervening in a landmark constitutional case at the Supreme Court of Canada. The question was whether a law preventing the bringing back of more than a very small amount of liquor purchased from Quebec into New Brunswick was contrary to section 121 of the Constitution, which allows all articles of growth, produce, or manufacture of any one Province to be admitted free into each of the other Provinces. The Court, in crafting the test for the application of section 121, relied on our submissions, as well as those of other intervenors from key Canadian industries. The decision in Comeau now sets the standard for permissible interprovincial trade barriers, and profoundly impacts Canadian business in general.
COURT: Supreme Court of Canada
COUNSEL: Allan L. Doolittle and Shea Coulson, of Coulson Litigation
THE FACTS AND HISTORY OF THE CASE:
In 2012, Gerard Comeau drove from his home in New Brunswick to Quebec to stock up on beer and whiskey. When he returned home, Mr. Comeau was stopped by the RCMP and fined $240 under New Brunswick’s Liquor Control Act. Mr. Comeau fought the fine, arguing that s. 121 of the Constitution guaranteed the free flow of Canadian goods across provincial borders. Mr. Comeau was successful at trial, despite the fact of a long-standing Supreme Court of Canada decision interpreting s. 121 as only preventing provinces from charging tariffs at the border. The New Brunswick Court of Appeal dismissed the Crown’s request for permission to appeal.
The Supreme Court of Canada held that while section 121 prohibits laws whose primary purpose is to prevent the movement of goods across provincial boarders, it does not prohibit laws that have an incidental effect on trade. In this case, the Court found that the primary purpose of the New Brunswick liquor regime was to manage the supply and demand of liquor. It then found that the specific provision preventing Mr. Comeau from importing more than a small amount of liquor was in line with this primary purpose, and that its effect of impeding trade was merely incidental. As a result, the Court ruled the law was constitutional.
WHY IS THIS CASE IMPORTANT?
Navigating or challenging legislation imposing trade restrictions across provincial boundaries is of vital importance to any business engaged in importing or exporting goods across Canada, and in particular, to industries involved in highly regulated environments like the production and distribution of alcoholic beverages. Comeau provides the latest lay of the land on this topic, and also a road map for potential future change.