Beer Freedom and Free Trade: New Brunswick Crown files factum in R. v. Comeau

Beer Freedom and Free Trade: New Brunswick Crown files factum in R. v. Comeau

Calgary, Alberta — On Friday we received the factum of the Appellant, the Attorney General of New Brunswick in the case of R. v. Comeau. We are currently reviewing it. Without jumping the gun on the litigation process, we are confident that there are compelling responses to the Appellant’s arguments. The trial court judge considered and rejected substantially the same arguments and we believe his reasoning and conclusions should be upheld by the Supreme Court of Canada.

Appellant’s factum is available here.
The trial court decision is available here.

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Howard Anglin
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Canadian Constitution Foundation
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What is the case about?

What was Mr. Comeau’s offence? He had bought beer and spirits in Quebec and driven them back to his home in New Brunswick. Unbeknownst to him, his beer run had been targeted by the RCMP. As the province’s Application puts it, “the RCMP had the defendant under surveillance.” When he crossed the provincial line on his way home, they pounced. The RCMP stopped his car, detained him, seized his beer, and issued Mr. Comeau a ticket for $292.50 for violating the province’s Liquor Control Act.

What is the Constitutional Issue?

Section 121 of the Constitution Act, 1867, provides that “all articles of the growth, produce or manufacture of any one of the provinces shall … be admitted free into each of the other provinces.”

This provision was intended to ensure that the newly confederated country of Canada would be a single economic unit for internal trade. The Fathers of Confederation were keenly aware of the benefits of free trade and repeatedly referred to the benefits of open trade between the four provinces of their new country.

George Brown, for example, predicted that “[the] union of all provinces would break down all trade barriers between us, and throw open at once … a combined market of four million people.” And Alexander Galt, a fellow member of the Great Coalition government that secured Confederation, believed that one of “the chief benefits expected to flow from Confederation [would be] the free interchange of the products of the labour of each province.” Their vision was enshrined in Section 121.

Since 1867, the federal and provincial governments have repeatedly betrayed our founding promise and violated the Constitution by erecting protectionist barriers that impede the free flow of goods across Canada. New Brunswick’s limitations on possessing alcohol purchased in another province is just one example, and Judge LeBlanc had no trouble finding that it violated both the spirit and the letter of Section 121.

Why is the case important?

A recent study by economists Trevor Tombe and Lukas Albrecht of the University of Calgary estimated the annual benefits of free markets for the movement of goods and labour among the provinces at between $50 billion and $130 billion, or $7,500 per Canadian household per year.

At a minimum, a victory in the Supreme Court should open up Canada’s closed provincial alcohol monopolies, making it possible for Quebeckers to buy wine directly from BC wineries and Nova Scotians to order craft beers from Ontario. A ruling that respects the history and purpose of Section 121 could also spell the end of other non-tariff barriers to free trade.

As New Brunswick told the Supreme Court in its Application, “if [Comeau] is correct, any law that serves to operate either as a direct or indirect trade barrier (sometimes referred to as a ‘non-tariff trade barrier’) within Canada would invite an ultra vires finding by a court.”
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