Supreme Court Makes A Mistake With Cross Border Liquor Ruling
It seems that, regardless of what Canadians want, the restrictions applied to transporting alcohol across provincial borders will remain a part of our legal system. For now, at least.
The Supreme Court of Canada has ruled unanimously in favour of the New Brunswick Liquor Corporation. They claim that Carl Comeau, a New Brunswick resident, broke the rules on October 6, 2012 when he transported large amounts of beer and some spirits from Quebec to New Brunswick. Comeau was fined; he fought the fine and won at the Provincial Court of New Brunswick at the initial trial held in August of 2016. The New Brunswick Liquor Corporation appealed. The case went to the Supreme Court on December 6 and 7, 2018; the results were released this past Thursday.
According to the Reasons for Judgement, 134 (b) of the Liquor Control Act does not infringe on section 121 of the Constitution Act, 1867. In short, we do not have a constitutional right to purchase alcohol in one province and bring it home with us to another province.
For your reference:
“134 Except as provided by this Act or the regulations, no person, within the Province, by himself, his clerk, employee, servant or agent shall
(a) attempt to purchase, or directly or indirectly or upon any pretence, or upon any device, purchase liquor, nor
(b) have or keep liquor,
not purchased from the Corporation.”
Source: CanLii, Liquor Control Act
“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.”
Source: Government of Canada, Justice Laws Website, Constitution Acts, 1867 to 1982
Comeau and his interveners – notable members of the drinks industry, including the Canadian Vintners Association, Alberta Small Brewers Association and many more – argued that restricting the transportation of alcohol into New Brunswick prevents free trade.
The Supreme Court ruled that it did not; or rather, if it did, it was an unintended side effect of the regulation’s larger goal, which is to control the movement of alcohol within the province.
“In this case, s. 134(b) impedes liquor purchases originating anywhere other than the New Brunswick Liquor Corporation. In essence, it functions like a tariff, even though it may have other purely internal effects. However, the text and effects are aligned and suggest the primary purpose of s. 134(b) is not to impede trade, but rather to restrict access to any non‑Corporation liquor, not just liquor brought in from another province.
“The objective of the New Brunswick regulatory scheme is not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick. Finally, s. 134(b) is not divorced from the objective of the larger scheme. It plainly serves New Brunswick’s choice to control the supply and use of liquor within the province.
“The primary purpose of s. 134(b) is to prohibit holding excessive quantities of liquor from supplies not managed by the province. While one effect of s. 134(b) is to impede interprovincial trade, this effect is only incidental in light of the objective of the provincial scheme in general. 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 .”
Source: Supreme Court Judgements Case Number 37398
Now, to be fair, most provinces allow some alcohol through. In 2011, the Canadian Association of Liquor Boards approved changes that allow individuals to transport “reasonable” quantities. Each province has their own interpretation of “reasonable”. Mark Hicken’s “Shipping Laws on Wine within Canada” article on WineLaw outlines the rules fairly clearly, if you’re curious.
These amendments have helped move inter-provincial wine and beer sales forward a few decades; but it’s not enough. Canadian producers can’t reach Canadian consumers because they must jump through the liquor boards’s hoops.
Many were hoping that the Comeau v. The Crown trial would change the interprovincial alcohol transportation landscaping. Unfortunately, it seems we’ll have to continue to wait. And perhaps continue to raise awareness so political change will come.