Is N.B. interprovincial liquor law unconstitutional?

Case of beer on a store shelf.
Case of beer on a store shelf. Stock photo by Getty Images.

Liquor, liquor everywhere — just don’t bring it to another province. We seem to have free trade agreements with other countries, but not within Canada. Gerard Comeau has started a legal battle that constitutionally challenges the limits provincial liquor boards place on importing alcohol from another province.

Comeau was fined $292.50 in 2012 when he tried to drive from Quebec to New Brunswick with 14 cases of beer, two bottles of whisky, and a bottle of liqueur. The RCMP stopped him and he was charged with one count under the New Brunswick Liquor Control Act for illegally bringing alcohol across the border. Under the act, a person cannot bring more than one bottle of wine or spirits, or 12 pints of beer. 

See: How much alcohol can I bring from another province?

See: Alcohol and liability know the law

Fed up with the bureaucratic provincial restrictions, Comeau decided to challenge the law. Comeau’s lawyer is arguing that not only is the law archaic, but most people in New Brunswick don’t even know about it. It’s a normal practice to bring liquor across the border from Quebec, and residents are not usually aware there are legal limits. Indeed this may be one of the strongest arguments in this case, as when something is seen as a “common practice” courts tend to recognize it.

Another strong argument put forward is that s. 121 of the Constitution Act allows the free flow of goods, produce and manufacture between provinces. In other words, Comeau’s lawyer is arguing the New Brunswick Liquor Control Act s. 134, which imposes limits on transporting liquor between provinces, is unconstitutional.

If successful, this could be a standard-setting case across the provinces and could strike down all interprovincial liquor limits.

However, what would happen if Comeau’s challenge is successful?

A similar question was asked of N.B. Liquor vice president and chief financial officer Richard Smith. His response? It would be “devastating” to the Crown corporation responsible for alcohol in New Brunswick, meaning the N.B. liquor board would likely shut down.

So the sky will not fall if we allow free trade between the provinces.

The question that should be raised is why we have limits, as we are all Canadian. That is a point the Canadian Constitution Foundation — the group funding Comeau’s defence team — has also raised. The foundation insists such provincial protectionist limitations were allowed to be raised because the Supreme Court of Canada incorrectly interpreted the free trade clause in 1921, and allowed for trade barriers to be erected between provinces.

When it comes down to it, some people think it’s absurd to impose liquor limits between provinces. As one person pointed out: “I think it’s ridiculous. We’re living in Canada. Why can’t I get a dozen cases of beer if I want? You can buy 12 cans there for $17 and here it’s about $27. Big difference.”

Big difference, indeed. Bottoms up!

Update: On April 29, 2016 Judge Ronald LeBlanc of the New Brunswick provincial court ruled that the province's restrictions on importing alcohol from another province for personal consumption was unconstitutional.

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