N.B. cross-border beer ruling has far-reaching implications beyond ale

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[Beer and liquor/CBC.ca Videos]

Canadians could see a boon in cross-provincial border shopping and trade after a New Brunswick man won his case to overturn a charge for illegally importing 14 cases of beer and three bottles of liquor from Quebec.

Gerard Comeau had been fined $292.50 in 2012. Last Friday, a judge threw out the charges.

“You can buy anything else like cars, clothes, everything [and transport across provincial borders]. Except for beer,” pointed out Comeau after the ruling.

The liquor law in N.B. forbids importing more than one bottle of wine or 12 pints of beer from another province.

“It’s a snowball that started at the top of a mountain and it’s going to grow,” constitutional lawyer Derek From told Yahoo Canada News, predicting a domino effect.

Canadian liquor laws date back to the Prohibition era when transporting any alcohol across provincial boundaries was made illegal. Passed in 1928, only three provinces have since rescinded that rule: British Columbia, Manitoba and Nova Scotia. Saskatchewan recently joined in but its new law isn’t very clear, according to some legal experts, and requires a permit for transporting beer across borders.

The ruling has implications that could be far-reaching. Beyond beer according to From, who works with the Canadian Constitution Foundation (CCF), which supported Comeau in his fight.

“All the attorney-generals across Canada are watching this because it’s such a big important decision and could have an effect on a lot of goods that can’t be traded inter-provincially,” From said.

“This is turning the clock back to the framers of the Constitution,” he explained. “It’s about the economics of free trade in Canada and it’s the way things are supposed to be — or were back when they signed the Constitution.”

Fighting each provincial law

If you’re concerned about beer, From said the decision would help any individual in the other provinces wanting to fight restrictive beer importation laws. It would require someone taking on his or her provincial government in order to have all the beer import rules changed across the country.

“The best thing now is that if I want to go sue the Alberta government [over this issue] I now have a powerful decision from the New Brunswick provincial court that would aid me.”

From believes the N.B. government will likely appeal last week’s decision, which would push it up to the province’s appeal court — likely within the year.

“Judge [Ronald] LeBlanc’s decision is quite persuasive,” From maintained. “He accepted the testimony of our expert witness — Andrew Smith from England who is an expert on the 1867 Constitution. Smith said the intent of Section 121 of the Act is to create economic union between the colonies [and not to protect] local producers.”

In effect, Judge LeBlanc proclaimed that the Liquor Control Act goes against the 1867 Constitution.

From said the Crown’s expert simply argued that Section 121 had been ignored anyway for the last 100 years so it can be ignored still.

“That’s a ridiculous argument,” From said. “We have inertia and there are too many political interests and other hands in the pot that are invested in ignoring [Section 121]. So that’s why we have such resistance in reading the Constitution as it’s supposed to be read.”

Dairy products

Right now, the CCF is fighting a new Alberta tax imposed by the NDP government on craft beer produced in other provinces.

“The tax raised prices as much as 525 per cent for craft beer from other provinces. So Ontario breweries like Lake of Bays and Steam Whistle are pulling out,” From said. “We have told Alberta’s finance minister the tax is unconstitutional and hope to get it revoked soon.”

From said he’s “excited” by the potential of the N.B. ruling to counter the protectionist supply management system in Canada.

“There are trade barriers between provinces on dairy products. This is unconstitutional.”

If anyone wants to challenge these kinds of trade barriers in their own province, the CCF (a registered charity that accepts donations) is happy to help out pro bono.

If the N.B. government does appeal and it goes to court again, From said he’s almost certain of what that future ruling could be: “The decision [last week] is unassailable and thoroughly reasoned. There’s very little wriggle room for it to be overturned.”

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