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On December 6 and 7, I appeared alongside my Siskinds colleagues Paul Bates and Ron Podolny in the Supreme Court of Canada for the hearing of R v. Comeau. Siskinds represented the Interveners Consumers Council of Canada (“CCC”), Canada’s leading general interest consumer advocacy organization.

The Supreme Court’s decision may have far-reaching implications for the myriad barriers to interprovincial trade in Canada.

Gerard Comeau’s case began when he was ticketed under New Brunwick’s Liquor Control Act (the “LCA”) after purchasing liquor in Québec and bringing it to his home province of New Brunswick. Under the LCA, it is an offence to “have or keep” liquor that was not purchased from New Brunswick’s liquor corporation. Similar legislation exists in many other provinces.

Mr. Comeau relied on section 121 of the Constitution Act, 1867 as a defence to the charge. While that section requires that “[a]rticles of the Growth, Produce, or Manufacture of any one of the Provinces shall… be admitted free into each of the other Provinces,” almost a century of jurisprudence has restricted the provision to block only customs duties and like charges.

Mr. Comeau contended that section 121 also restricted non-tariff trade barriers, and that New Brunswick’s legislation limiting the importation of liquor from other provinces ran afoul of this provision. In other words, he asserted that section 121 secures free trade among the provinces. The New Brunswick Provincial Court and the New Brunswick Court of Appeal agreed with Mr. Comeau’s interpretation, and Mr. Comeau was acquitted since the provision under which he was charged was inconsistent with section 121.  Such an interpretation stands to have a meaningful impact on Canadian consumers.

If the lower court’s decisions are upheld, a litany of provincial and federal schemes– for example, agricultural marketing boards – are vulnerable to constitutional attack as their existence is founded, in part, on non-tariff trade barriers. On behalf of the CCC, Siskinds argued that section 121 precludes legislatures from promulgating laws that in essence and purpose constitute barriers to interprovincial trade. The CCC’s position was mindful of the important role that consumer protection statutes play in ensuring a safe marketplace.

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