Gerard Comeau was stopped and fined $300 for crossing the border of New Brunswick to Quebec for cheaper alcohol. The case has been coined "Free the Beer" case, where Gerard had tried to bring 14 cases of beer and 3 bottles of alcohol across the provincial border, because of the preferable rate they receive on alcohol, especially Beer.
- Is cross-border trade a Constitutional Right under S.121 of the Constitution Act 1982, including alcohol?
- Does Section 134(b) of the New Brunswick Liquor Control Act violate section 121 of the Constitution?
Section 121 Constitution Act 1867-1982
|121. 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.
Section 134(b) - Liquor Control Act
134(b). Except as provided by this Act or the regulations, no person, within the Province, by himself, his clerk, employee, servant or agent shall (b) have or keep liquor not purchased from the Corporation.
Judicial Activism is seen by the Trial judgment where the court had departed from an authoritative precedent. Interestingly it was due to an expert witness who tendered historical evidence.
Judge LeBlanc gave the judgment where he held that s.121 restricts the free movement of goods among the provinces without barriers, tariff or non-tariff. His judgment was an impressive piece of judicial scholarship, and many the major news attention this case attracted has let many skeptics believing that this gap may be closed within the Policial spectrum.
The historical witness was Dr. Andrew Smith, one of Canada's famous historians of the Canadian Constitution.
New Brunswick Court of Appeal
Dismissed leave to appeal declaring s. 134(b) of the Liquor Control Act (LCA) of no force or effect with respect to Comeau.
Supreme Court of Canada
Therefore, while s. 134(b) in essence impedes cross-border trade, this is not its primary purpose. Section 134(b) does not infringe s. 121 of the Constitution Act, 1867. The reasoning of the Supreme Court was that Section 134(b) primary purpose was to restrict access to any non-Corporation liquor, not just liquor brought in from another Province. They go on to say that the New Brunswick legislation is the purpose of democratically elected officials to choose the supply and the use of liquor within the province.
The historical importance of Section 121 is that in 1921, the Supreme Court of Canada had stated the only thing that Section 121 had prohibited were customs duties at the provincial border and not any other types of interprovincial trade barriers, recognized in the case of Gold Seal Limited v Attorney General of the Province of Alberta.
Trade barriers have resulted in Canadians paying higher prices for Canadian goods than would otherwise be required. Inter-provincial trade barriers add between 8% and 14% to the cost of all goods and services in Canada, eliminating those costs would lead to a real GDP gain of between 3-7% or between $50-130 billion annually.
(1) R. v. Comeau,  S.C.J. No. 15, 2018 SCC 15,  A.C.S. no 15