Cross-border booze case would 'redesign' federalism, N.B. prosecutors argue

Upholding the acquittal of a Tracadie, N.B., man who exceeded cross-border alcohol limits would "redesign Canadian federalism," provincial prosecutors say.

The case of Gerard Comeau "began as a simple ticket offence," prosecutors say in arguments submitted to the Supreme Court of Canada as part of their appeal of the 2016 lower court decision. But "a simple case it is not."

"This 'simple case' and the trial decision that resulted raise the issue of competing constitutional provisions and propose an end to Canadian federalism as it was originally conceived, has politically evolved and is judicially confirmed," the 45-page document says.

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​Comeau, a retired NB Power lineman, was charged in 2012 and fined $292.50 after RCMP stopped him driving home from Quebec with 14 cases of beer and three bottles of liquor in his vehicle.

New Brunswick's Liquor Control Act sets a personal importation limit of 12 pints of beer or one bottle of liquor or wine.

But Campbellton provincial court Judge Ronald LeBlanc ruled last year that the liquor restriction was unconstitutional because Section 121 of the 1867 Constitution Act says products from any province "shall … be admitted free into each of the other provinces."

Prosecutors say LeBlanc's decision was "flawed." They want the country's highest court to rule New Brunswick's restrictions on bringing alcohol into the province do not violate the act's free-trade provisions.

The relationship between Section 121 and other constitutional provisions, along with its function within the Canadian Constitution, has been "the subject of political debate and discussion for decades," the prosecutors say.

But this is the first time the Supreme Court is being asked directly to determine the relationship of Section 121, on the free movement of goods between provinces, to Section 92 of the Constitution Act, on provincial powers over property and civil rights, they say.

11 requests to intervene

The federal government, the attorneys general of Ontario, Quebec, Newfoundland and Labrador, Alberta, Nova Scotia, Saskatchewan, British Columbia, Prince Edward Island, and Northwest Territories, and the minister of justice of Nunavut have all asked to be interveners in the case.

They have until Oct. 13 to file their written arguments, not exceeding 10 pages each. Comeau's lawyers must file a reply not exceeding 10 pages by Oct. 27.

The appeal is tentatively scheduled to be heard on Dec. 6 and Dec. 7.

Section 121 "has not to this date been considered as a standalone 'free trade' provision," New Brunswick prosecutors argue.

They point to a 1921 decision by the Supreme Court of Canada in Gold Seal Ltd. vs. Dominion Express Co., which held the constitutional provision only meant provinces couldn't impose tariffs on goods at their border.

"The provinces are not subordinate to 'a central authority' nor are they melded together," the prosecutors state in their factum, dated Aug. 18.

Provinces "are to retain their differences and subject their interests to a central government '…entrusted with exclusive authority only in affairs in which they had a common interest.'"

"The historical context of the Canadian federation, the foundational principles of Canadian constitutionalism, and a proper textual understanding of the written Constitution, all lead to the inexorable conclusion that the decision of the trial judge is incorrect."

N.B. ordered to cover Comeau's costs

Lawyer Ian Blue, who acted as part of Comeau's defence team on behalf of the Canadian Constitution Foundation, has said the case "could have more profound effects on interprovincial trade barriers than President Trump could."

"That's how important this case is," Blue has said.

The Supreme Court's decision could have implications for "literally hundreds" of interprovincial trade barriers across the country, according to the executive director of the Canadian Constitution Foundation, which provided legal assistance to Comeau.

"Anything where provinces erect, deliberately erect, systems to keep competitive goods out from other provinces — this would, if not eliminate those, at least shake the foundations on which they are built," said Howard Anglin.

The Supreme Court of Canada agreed in May to hear the appeal and ordered that Comeau's legal costs in fighting the case be paid for by the New Brunswick government.

The public prosecution service had initially asked the New Brunswick Court of Appeal to review LeBlanc's decision, but the province's highest court declined to hear the case. As is customary, the court did not provide any reasons.

The prosecution service, which has described itself as being independent from government, then sought leave to appeal to Canada's top court.

The provincial government has declined to comment because the case is before the courts.