↩ back to the box
Post : ‘Free the beer’ case gets rough ride from Supreme Court justices worried about removing control from provinces
URL : http://nationalpost.com/news/free-the-beer-case-gets-rough-ride-from-supreme-court-justices-worried-about-removing-control-from-provinces
Posted : December 7, 2017 at 6:07 pm
Author : Brian Platt
Tags : Beer, Gerald Comeau
Categories : Canada, News

OTTAWA — The lawyer attempting to open up free trade for alcohol in Canada got a rocky reception from Supreme Court justices on Thursday, as they cast a skeptical eye on his contention that tight restrictions on moving booze across provincial boundaries are unconstitutional.

At issue is Section 121 of Canada's Constitution Act, 1867, which says that "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."

Gerard Comeau, a retired New Brunswick man, used that section to successfully challenge a $292.50 ticket he was given for bringing beer and liquor from Quebec home to drink. The provincial court accepted his argument that New Brunswick's law against purchasing alcohol from anyone other than the provincial liquor corporation was unconstitutional. 

The province says allowing this decision to stand will undermine Canada's entire system of federalism and, after the New Brunswick Court of Appeal declined to hear the appeal, the case is now before Canada's highest court.

https://nationalpostcom.files.wordpress.com/2017/11/cpt102-the-canadian-press3.jpg The Supreme Court of Canada is shown in Ottawa on Thursday Nov. 2, 2017.

Thursday, Comeau's lawyer Ian Blue faced repeated reminders from the Supreme Court justices that Canada already has settled law in this area: the 1921 decision involving Alberta liquor importer Gold Seal, where the Supreme Court ruled that non-tariff trade barriers (such as setting up a provincial liquor monopoly) are allowed under Section 121. Blue argues that decision must be revisited.

"The problem is the Gold Seal case strangled the baby in the cradle by saying that Section 121 only applied to provincial tariffs, which was an absurd conclusion," Blue said.

"Essentially, the Gold Seal case was a temperance decision," he added later. "You find in Mr. Justice Anglin's decision, he said 'prohibition in aid of temperance is not contrary to Section 121.' Well … that's not sensible."

Blue proposed a new test for whether provincial trade barriers are constitutional, one that would require barriers to be justified as minimally intrusive and connected to an important, non-protectionist policy goal. But the justices, noting that numerous trade cases have already been decided based on Gold Seal, worried about the consequences of ripping up the current legal regime.

[pn-pullquote text="What you’re proposing is not free trade, you’re just proposing another regime" source="" /]

"My concern is, if we go your approach, we will really be introducing a great deal of uncertainty, perhaps increased litigation, etcetera, into the law," Chief Justice Beverley McLachlin said.

"What you’re proposing is not free trade, you’re just proposing another regime," she added later. "I’m very unclear on what would be in and out under your test, and I’m also unclear as to where that test comes from and how we draw that out of the language of 121."

But Blue argued that as long as the Supreme Court makes a clear ruling, the provinces will be fine.

"Yes, there might be some initial litigation, but the provincial officials that put these barriers in place are capable of reading your judgement, seeing the handwriting on the wall, and negotiating," he said.

The justices also expressed concern that adopting Blue's proposal would mean straying too far into policy-making, handing decisions on provincial trade policy to the courts instead of legislatures.

"If it’s just a question of (whether) this would be good for the country, you have to walk up the hill and when it levels out, look for the building with the big clock tower, and that’s where you go," said Justice Russell Brown, referring to the Parliament building.

[related_links /]

"Look, I understand this," he said later. "I get annoyed when I go to the LCBO and they've got 18 inches dedicated to B.C. wine, and a whole shelving unit dedicated to Eastern European wines. But those are my value judgments that flow from that; other people may have other value judgments."

Other justices said allowing mail-order booze from all over Canada could mean provinces no longer control social policy around alcohol, such as minimum pricing.

On Thursday, the court also heard from a mix of third-party groups that broadly agreed interprovincial trade needs to be liberalized, though they differed in their suggestions for how far the court should go. These included the Alberta Small Brewers Association, the Canadian Vintners Association, Spirits Canada, FedEx Canada, Cannabis Culture, the Canadian Chamber of Commerce and the Canadian Federation of Independent Business, among others.

In her final comment to Blue — on her last case as chief justice before retiring next week — McLachlin said she doesn't see the urgency for overhauling the system in place, especially given that provinces are already debating how to improve free trade.

"I have some trouble with the legitimacy of us weighing in now," she said. "We have a test that doesn’t seem to have created a lot of difficulty, interpreted as it has been. Why should we move to something else, and where is the foundation, the justification, for us doing so as a court at a time when governments are busy negotiating these matters?"

Hearings have wrapped on the case, and the judges will release their decision sometime in the next few months.

• Email: bplatt@postmedia.com ( mailto:bplatt@postmedia.com ) | Twitter: btaplatt ( http://nationalpostcom.wordpress.com//twitter.com/btaplatt )

Add a comment to this post: http://nationalpost.com/news/free-the-beer-case-gets-rough-ride-from-supreme-court-justices-worried-about-removing-control-from-provinces#respond

--
WordPress.com | Thanks for flying with WordPress!

Manage Subscriptions
https://subscribe.wordpress.com/?key=dbec90a91e0a5f5b132bb3ea6bc50db6&email=dominiquequinonez331%40hidebox.org

Unsubscribe:
https://subscribe.wordpress.com/?key=dbec90a91e0a5f5b132bb3ea6bc50db6&email=dominiquequinonez331%40hidebox.org&b=f%3FCC3AAgCWA8HeBgD_.0d_yFbG9cgW5Gjo7m8%3FdPx%7C%7Emc_B%3FU%2C