In a ruling released Friday
in Campbellton, New Brunswick Provincial Court Judge Ronald LeBlanc agreed with defence arguments that the Fathers of Confederation didn’t want trade barriers between provinces and that New Brunswick’s monopolistic law contravened the Constitution Act of 1867.
“That historical context leads to only one conclusion: The Fathers of Confederation wanted to implement free trade as between the provinces of the newly formed Canada,” Justice LeBlanc said in his 87-page ruling.
Arnold Schwisberg, one of the defence lawyers, said in an interview that the decision has a “national impact, not just for the transportation of liquor.”
“What that means is that the Canadian supply system, whereby the interprovincial trade of commodities are restricted, the dairy boards, the wheat boards, every aspect of our Canadian commercial situation that has impediments for cross-provincial movements, are all unconstitutional.”
He said he had already received a call from a lawyer in British Columbia wondering about the impact on the B.C. wine industry, which does $255-million in annual sales.
Canadian wine and beer producers have long complained of interprovincial hurdles, such as many provinces’ restrictions on shipping directly from an out-of-province winery to a consumer, or the decision last December by Premier Rachel Notley’s government to slap a 525-per-cent tax hike on craft beer from outside Alberta.
After Friday’s decision, the Crown has 30 days to decide whether to appeal. “[The] government will review the decision, but we have no further comment at this time,” said Elaine Bell, a spokeswoman for New Brunswick Attorney-General Serge Rousselle.
Mr. Schwisberg and the Calgary-based Canadian Constitution Foundation, which helped the accused, Gérard Comeau, with his defence, said they expect the case to end up at the Supreme Court.
“We had pledged from the beginning that if we got into this we’d be there the whole way,” said foundation executive-director Marni Soupcoff.
The defendant, Mr. Comeau, had been fighting the case since 2012.
A retired line worker, he had been charged and fined after the RCMP pulled him over as he returned home with 15 cases of beer and three bottles of liquor purchased in Quebec.
“It would have been much easier for him to pay. But he wanted to fight, because he thought it was wrong,” Ms. Soupcoff said.
During the trial, the defence brought out academics to testify that current laws clashed with the 1867 Constitution.
Under Sections 43 and 134(b), the New Brunswick Liquor Control Act, it is illegal for local residents to purchase more than the equivalent of 12 pints of beer from outside the province.
However, Mr. Comeau’s lawyers noted that Section 121 of the Constitution Act says that “all articles of the growth, produce or manufacture of any of the provinces shall … be admitted free into each of the other provinces.”
Going against the 1921 Gold Seal decision by the Supreme Court, Justice LeBlanc agreed with the defence that the historical context described by experts testifying at the trial indicated that Section 121 didn’t just refer to being free from customs duties.
The changes between the first and second drafts of the Constitution of 1867 indicated that the Fathers of Confederation clearly thought about interprovincial commerce, the judge said.
“They anticipated expansion and they anticipated greater trade as between the provinces. … The amended wording reflects their attempt to gain unfettered economic exchange and a more comprehensive economic union,” Justice LeBlanc wrote.
Since the federal government was not involved in the proceedings, Justice LeBlanc said his ruling did not address the constitutionality of the 1928 Importation of Intoxicating Liquors Act, Prohibition-era federal law that gives provinces control over interprovincial sales and shipment of alcohol.
The trial heard it was common for New Brunswickers to buy alcohol in Quebec, where beer is nearly half as expensive.
Alcool New Brunswick Liquor, the Crown corporation responsible for alcohol sales in the province, adds a mark-up of as much as 89.8 per cent to its beer, and has annual profit of about $165-million.
ANBL had warned at the trial that it could go out of business if Mr. Comeau got his way.
The heavy mark-up in his home province is what prompted Mr. Comeau to take a 200-kilometre drive from his house in Tracadie to Pointe-à-la-Croix, a small Quebec municipality separated by the J.C. Van Horne bridge across the Restigouche River from the New Brunswick town of Campbellton.
After his court victory, Mr. Comeau headed across the border and bought himself $300 in beer and spirits, according to Radio-Canada
journalist Serge Bouchard, who posted a photo of a smiling Mr. Comeau holding a case of Budweiser.