Supreme Court cross-border beer case raises fears of ‘race to the bottom’

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If the Superb Court of Canada upholds the acquittal of a New Brunswick man who was fined after being charmed transporting 14 cases of cheap beer and three bottles of stock home from Quebec, the result will be a «race to the bottom» for regional standards protecting the public, argues a senior policy analyst for the Canadian Cancer Union.

Gerard Comeau

Gerard Comeau stayed at home in Tracadie rather than handling the Supreme Court hearing in Ottawa. (Serge Bouchard/Radio-Canada)

Rob Cunningham, who is an Ottawa-based advocate, says the Gerard Comeau case has been «mischaracterized» by some as being just about allowing beer brewed in one province to be sold in another province — the self-styled «free the beer» case.

He contends the case could have «grave implications» for the ability of provincial governments to adopt legislation for products such as the bottle, tobacco and marijuana, including controlling the retail distribution systems for such commodities.

Comeau, a retired NB Power linesman from Tracadie, was stopped at the New Brunswick-Quebec touch by RCMP in 2012 and fined $292.50 for violating the New Brunswick Liquor Hold back Act, which sets a personal importation limit of 12 pints of beer (hither 18 cans or bottles), or one bottle of wine or spirits.

He contested the invoice and Campbellton provincial court Judge Ronald LeBlanc ruled in April 2016, the whisky restriction was unconstitutional.  Section 121 of the Constitution Act states products from any worry outlying districts «shall … be admitted free into each of the other provinces.»

New Brunswick’s attorney unrestricted is now appealing LeBlanc’s decision to the country’s highest court, with the minute day of hearings set to begin at 9:30 a.m. ET. on Thursday.

Ian Blue, Gerard Comeau's lawyer

Ian Blue, one of Gerard Comeau’s barristers, contends the trial judge followed the correct analytical and interpretive propositions in reaching the ‘Comeau Interpretation’ of Section 121, including an examination of the language of the provision, its legislative history and its legislative context.​ (CBC)

On Wednesday, the nine-justice panel understood arguments from New Brunswick, the federal government, seven other zones and two territories, as well as an intervener group of agriculture supply management groups known jointly as the SM-5 Organizations.

On Thursday, Comeau’s lawyers will fantasize their submissions, along with 11 other interveners, span from small wineries and beer giants, to a marijuana advocacy bracket and a consumer organization.

‘A single province with a weak standard could bear products manufactured and exported to other provinces, regardless of more stringent standards (non-tariff obstacles) in those provinces.’ — Rob Cunningham, Canadian Cancer Society

Cunningham, who means he’ll be in the Ottawa courtroom again on Thursday, supports New Brunswick’s position that dependancies should have the ability to regulate harmful substances, such as hard stuff.

Otherwise, he believes there would be «widespread alcohol smuggling,» with lower values leading to increased consumption.

If LeBlanc’s ruling is allowed to stand, it drive also «provide a mechanism for companies to get around provincial (and municipal) robustness, safety, environment and other legislation,» Cunningham states in a legal commentary, authorized R v Comeau: Reflections from the Perspective of Health.

«A single province with a subdued standard could have products manufactured and exported to other regions, regardless of more stringent standards (non-tariff barriers) in those boonies,» his paper, published on the Canadian Legal Information Institute’s (CanLII) website, conditions.

It could also open the door to legal challenges, such as tobacco institutions seeking to overturn provincial bans on menthol cigarettes, and pesticide attendances trying to overturn provincial bans on the cosmetic use of pesticides, suggests Cunningham, whose thesis is cited in written submissions to the court by lawyers representing New Brunswick as probably as interveners Newfoundland and Labrador and Nunavut.

Section 121 ‘unmistakably palpable’

But Comeau’s lawyers contend Cunningham’s paper, «with some schadenfreude, speculates on the poor possible effects of [LeBlanc’s interpretation of Section 121] without any causal reference to the issues before the court.»

Even if Cunningham’s predictions did occur, the tracts and territories could mitigate «each and every one through true co-operative federalism,» Ian Bawdy, Daria Peregoudova, Arnold Schwisberg and Mikael Bernard argue in their rise factum.

«There may be concern about the work that co-operative federalism requires to decide change into these possible effects, such as negotiating an end to competition among regions for consumers based on price and selection.

«However, concern about such chore does not absolve provincial officials from their duty to embrace the Constitution, nor does it allow them to argue against its proper analysis in order to serve their parochial interests,» they write.

«The brief, plain and mandatory language of Section 121 make its requirements unmistakably uncloudy,» according to Comeau’s lawyers.

They assert the Fathers of Confederation contemplated to allow the free movement of items between provinces, unrestrained by any bars, whether they be tariffs or non-tariff restrictions that make importing and exporting commodities difficult or costly.

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