'Makes no sense': New Brunswick man loses his 'free-the-beer' fight

After a five-year legal battle, a New Brunswick man has lost his bid to be able to stock up on cheap beer in neighbouring Quebec.

But the provincial government is hinting it will look at easing limits on interprovincial alcohol.

The Supreme Court of Canada unanimously ruled Thursday that Canadians do not have a constitutional right to buy and transport alcohol across provincial borders without impediments.

The nine-justice panel said provinces have the right to restrict the importation of goods from another province, as long as the primary aim of the restriction is not to impede trade.

Gerard Comeau, 64, who was at the centre of the so-called "free-the-beer" case, which garnered national attention because it could have toppled interprovincial trade barriers on much more than just beer, said the decision "makes no sense at all."

"You can go [to] Quebec or any province and buy any quantity of merchandise — clothes, shoes, anything, except for beer" and other alcohol.

Comeau, who lives in Tracadie, a small community about 160 kilometres north of Moncton, said he's disappointed but not surprised and "will continue to live."

He will also continue to drive to Campbellton and cross the J.C. Van Horne Bridge to the border town of Pointe-à-la-Croix, Que., to buy beer, as he has done two or three times a year for years.

"I'm not going to change.

"I'm sure I won't be buying as much as I used to, but I might take a couple of cases."

He expects many others will do the same.

Natasha Poirier of Campbellton is among them.

She said she routinely crosses into Quebec for the variety of brands as well as better prices.

Poirier estimated a case of beer there costs about half what it does in New Brunswick.

Kirby Donahue agreed.

"It certainly won't stop me," he said. "I think after I have my lunch here [in Campbellton] I think I might just well go pick up some beer in Quebec and bring it straight back to New Brunswick."

John Callahan said he didn't even realize there is a limit.

"I thought we were allowed to," he said. "So you're only allowed to take what, that's it, 12 bottles? Well I'll be darned.

"They make some crazy laws."

Thomas Croswell thinks "it's terrible."

"It's not a border crossing, it's across the bridge … It's all Canada. We're Canadians, we should be able to shop where we want."

Croswell was shopping on the Quebec side on Thursday and filled his car trunk with cases of pop and water.

"In Quebec, we pay five cents for deposit. In New Brunswick, it's 10. So if you can save money over here, why would you not?

"If I can save $10 or $20, I'm going to."

In 2012, Comeau was stopped at the New Brunswick-Quebec border as part of a sting operation by the Campbellton RCMP and fined $292.50 for having 14 cases of beer, two bottles of whisky and a bottle of liqueur in his vehicle.

New Brunswick, like most provinces, limits how much alcohol people can bring across provincial borders.

The New Brunswick Liquor Control Act sets a personal importation limit of 12 pints of beer (about 18 cans or bottles), or one bottle of wine or spirits.

Comeau, a retired NB Power lineman, fought the charge and provincial court Judge Ronald Leblanc acquitted him in April 2016.

LeBlanc ruled the liquor restriction was unconstitutional because Section 121 of the Constitution Act of 1867 states products from any province "shall … be admitted free into each of the other provinces."

The New Brunswick Court of Appeal refused to review the lower court decision. No reasons were given.

In November 2016, the province's public prosecutions services appealed to the country's top court.

In December, 2017, prosecutors argued upholding Comeau's acquittal would "propose an end to Canadian federalism as it was originally conceived, has politically evolved and is judicially confirmed" by the Supreme Court itself, which has previously held Section 121 prohibits only "customs duties," or interprovincial tariffs.

It could, for example, have implications for sales of tobacco and cannabis and for the supply-management system relied upon by Canada's dairy and egg industries to maintain prices.

The Supreme Court ruled that while Section 121 prohibits laws whose main purpose is to prevent the movement of goods across provincial borders, it does not prohibit legislation that has "incidental effects" on trade.

"The objective of the New Brunswick scheme is not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick," the 47-page decision states.

"New Brunswick's ability to exercise oversight over liquor supplies in the province would be undermined if non-Corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers."

Decision 'very political'

The lawyer who argued Comeau's case at the Supreme Court, Ian Blue, called the decision "very political."

"[The court is] maintaining the status quo and are not prepared to go forward a little bit. I'm disappointed in them."

The lawyer who has represented Comeau from the beginning, Mikael Bernard, said he is still hopeful the case could prompt changes.

"I think it's something that Mr. Comeau is really proud [of], that he at least opened a discussion, and I mean the overwhelming support we have received from the general population has just been tremendous.

"So I'm hopeful in the end that perhaps through the population and through our politicians that we can have some change and have … freer goods across the country."

New Brunswick Treasury Board President Roger Melanson, who is also the minister responsible for trade policy, suggested Thursday changes could be coming.

"We are always looking at evolving the Liquor Control Act."

Melanson welcomed the court's decision, which upholds the province's right to regulate alcoholic beverages and have a supply management system where revenue generated by NB Liquor — an estimated $170 million annually — is redistributed for the "common good," including health care services, education and infrastructure.

It's no longer a legal issue but a trade issue, he said.

"We fully understand that consumers, New Brunswickers, want to have access to more Canadian goods in the alcoholic beverages economic sector," Melanson said.

"And we know consumers want to have always a better price. But that's market conditions. That's supply and demand that dictates the price, but we do have the right to regulate."

"Obviously, we are going to study in depth this ruling for sure, but we are a province that's very, very open and certainly very dependent on trade so we'll see where that brings us."

Committee recommendations coming

A national internal trade committee working group, formed last summer to look at how to improve access to products, is expected to submit a report with recommendations by July, said Melanson.

"Can we increase the individual purchase by an individual outside of a specific province? So that's being looked at for sure.

"Also, how can we you know embrace the e-commerce available – this is the technology available, so how can we potentially embrace some of these new means of consuming?"

Prime Minister Justin Trudeau said he plans to continue working to improve interprovincial trade in Canada.

"We will of course abide by and respect the Supreme Court's decision but we will take the time to properly study the decision and work on the ramifications of it," Trudeau said in London, England, where he is attending the Commonwealth leaders meeting.

The Comeau case attracted about two dozen interveners, including a marijuana advocacy group, business and consumer organizations, a courier service, and a think tank.

The other interveners included the attorneys general of Canada, Ontario, Quebec, Newfoundland and Labrador, Alberta, Nova Scotia, Saskatchewan, British Columbia, Prince Edward Island and Northwest Territories, and the minister of justice of Nunavut.