Academic journal article Dalhousie Law Journal

R. V. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union

Academic journal article Dalhousie Law Journal

R. V. Comeau and Section 121 of the Constitution Act, 1867: Freeing the Beer and Fortifying the Economic Union

Article excerpt


I. The decision

II. Unanswered questions

III. What is free trade for?

IV. Lessons from comparative jurisprudence

V. Reconciling text, structure, and principles



On 29 April 2016, the New Brunswick Provincial Court released a decision with unusually significant implications for the political and economic structure of Canadian federalism.1 Though sometimes referred to as the New Brunswick beer case,2 because it involved a prosecution for possession of beer imported from another province, R. v Comeau is about a lot more than just alcoholic beverages. Put simply, the case concerned whether section 121 of the Constitution Act, 1867 prohibits only the levying of outright tariffs or duties on interprovincial trade, or whether it also extends in some manner to bar non-tariff trade barriers, which can include essentially any measure that serves to disadvantage trade from outside a jurisdiction.3 Non-tariff barriers range from production and sale quotas, to inspection requirements, to licensing schemes and other regulatory standards that differ from one jurisdiction to the next. In Comeau, the barrier in question was an effective ban on possession of modest quantities of liquor purchased outside of New Brunswick.

Section 121 reads: "All Articles ofthe 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." Despite the open-ended wording of section 121, several cases from the Privy Council and Supreme Court of Canada, starting with Gold Seal v. Alberta, have construed the provision in a restrictive manner, to prohibit only the erection of tariffs or duties on interprovincial trade.4 The trial judge in R v. Comeau, however, departed from this line of precedent, relying on the "new evidence" exception to vertical stare decisis articulated in Canada v. Bedford and Carter v. Canada.5 Judge Ronald LeBlanc held that the text, historical context, and purpose of section 121 all lead to an interpretation that extends to both tariff and non-tariff trade barriers. In relation to the case before the court, that meant holding that s. 134(b) of the New Brunswick Liquor Control Act, which prohibits possession of more than a small quantity of alcohol not purchased from the New Brunswick Liquor Corporation, violates section 121 of the Constitution Act, 1867.6 The defendant, a New Brunswick man who had been charged under section 134(b) for stocking up on cheap beer in Québec and then returning to New Brunswick, was therefore acquitted.

The provincial Crown sought leave to appeal the acquittal directly to the New Brunswick Court of Appeal, attempting to bypass the Court of Queen's Bench.7 Remarkably, the Court of Appeal refused to grant leave.8 The Crown then sought leave to appeal to the Supreme Court of Canada, which the court granted on 4 May 2017.9 The rather unusual result is that the Supreme Court will hear an appeal on the merits of a case that comes to it directly from a provincial court, a fact that underscores the importance of the case. Indeed, given the amount of economic regulation in Canada today that gives rise to non-tariff barriers to interprovincial trade, both directly via overtly protectionist measures and indirectly via such mechanisms as variable provincial production, transportation, and licensing standards, this case could be one of the most significant the court hears in the coming year.

The Comeau trial decision has already been the subject of significant media commentary, much of it focusing on the implications for interprovincial alcohol sales specifically.10 Some coverage, though, also acknowledges the effect a holding like this could have on a range of other regulatory schemes that interfere with interprovincial trade, including supply-managed agriculture.11 In addition, academic commentators and others have noted the markedly originalist orientation of the decision, in the sense that the trial judge devotes a great deal of his judgment to the legislative history and historical context of section 121. …

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