Chief justice warns cross-border beer decision could create 'uncertainty'

The chief justice of the Supreme Court of Canada voiced concern Thursday about the confusion aNew Brunswick man's fight for the right to buy cheap beer in Quebec could leave in its wake.

Beverley McLachlinsaid if the country's highest court sides with Gerard Comeau'slawyers, deeming interprovincial trade barriers to include tariffs and non-tariff restrictions alike,it would beshifting from a clear law that prohibits customs duties to one where provinces would have to demonstrate any restrictionserves a "higher purpose."

McLachlinsaid there are myriad trade barriers.

"They may be environmental measures, they can be economic measures,theycan behealthmeasures myconcern is that we will be introducing a certain area of uncertainty, a lot of litigation, [and] maybe in order to avoid that, imposing a huge burden ongovernmentsto come up with some agreements quickly so that our society can be regulated in an orderly fashion," she said.

Other members of the nine-justice panel expressed similar reservations during the second and final day of hearings inOttawa about the case that could have far-reaching implications for agricultural supply management, the economy and consumer choice.

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The case dates back to 2012, whenComeau, a retired NB Power lineman fromTracadie, was stopped at the New Brunswick-Quebec border byRCMP. He wasfined $292.50 forviolatingthe New Brunswick Liquor Control Act by having 14 cases of beer, two bottles of whisky and one bottle of a liqueur.

The act sets apersonal importation limit of12pints ofbeer (about 18 cans or bottles), or one bottle ofwine or spirits.

Comeau contested the charge andCampbelltonprovincial court Judge RonaldLeBlancruled in April 2016,the liquor restriction was unconstitutional. Section121 of the ConstitutionAct states products from any province "shall be admitted free into each of the other provinces."

New Brunswick's attorney general appealedLeBlanc'sdecision to the country's highest court, arguing that upholding Comeau'sacquittal 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 haspreviously held Section 121 prohibits only "customs duties."

But since that1921 decision in Gold Seal Ltd. v. Alberta interprovincial trade barriers have "just multiplied," Ian Blue, one ofComeau'slawyers, argued Thursday.

"We've gone way past the point where that's fair," he said, proposingthe court adopt a new test, one that's"more restrictive to barriers."

He acknowledged the chief justice's concerns that it could prompt "some initial litigation."

But the provincial officials who put barriers in place are capable of negotiating, he said,

"Yes it'll take extra work, but that's what it might require to comply with the Constitution."

Policy-making power at risk

JusticeAndromacheKarakatsanissuggested adopting the interpretation proposed byComeau'slawyers would have "adramaticimpact on our Constitutional balance."

Blue took issue with the adjective "dramatic."

"It will be an additional limitation," he said.

Justice Russell Brown questioned taking policy-making power away from elected legislatorsand handingit to judges, whenpoliticians are accountable to the public.

Blue replied, "People have no voice in the types of negotiations thatpoliticians engage in over trade barriers, but they do have a voice before the cold impartiality of a court of justice."

Justice Malcolm Rowe said it's difficult to conceive of Sir John A. Macdonald and the other Fathers of Confederation "contemplating that courts would sit in judgment on the adequacy of legislative decisions."

A lawyer representing the Montreal Economic Institute, one of the interveners in the case, said it's fortunate the Constitutional method of interpretation doesn't rely solely on original intent.

"We have a living tree that you are charged with tending and interpreting as it continues to grow," saidMark Gelowitz on behalf of the think tank.

It is this court's role to tell us what the Constitution means. It's our job to make it work.- Mark Gelowitz, Montreal Economic Institute

"And that's why in our Constitutional framework, we need judges to make those kinds of decisions,particularly with respect to words that were written 150 years ago in circumstances where the framers could not have contemplated the world we live in," Gelowitz said.

Interpreting the Constitution is the "core jurisdiction" of the court, he said, and it includes "making decisions about whether a legislative purpose falls within Constitutional boundaries, he said.

Gelowitz urged the court not to approach thetask with reluctance based on whether the correct interpretation of the Constitution "might cause some trouble."

"It is this court's role to tell us what the Constitution means. It's our job to make it work," he said.

"So in my submission the court must not pull its punches in correcting the mistake that was made in Gold Sealsimply because it's a mistake that's been relied upon for a very long time."

The court also heard submissions Thursday from10 otherinterveners, ranging from small wineries and beer giants, to a marijuana advocacy group and a consumer organization.

On Wednesday, lawyers for New Brunswick, the federal government, seven other provinces and two territories, as well asan intervener group of agriculture supply management associations known jointlyas theSM-5Organizations presented their arguments.

McLachlin announcedthe court wasreserving judgment to an undetermined date, adding she was confident this came as no surprise to anyone.

Decisions are generally delivered within four to six months, but this was McLachlin's last day on the bench before she retires, and it's unclear if or how that might affect the timing.

'Race to the bottom'

If the court upholds Comeau'sacquittal, asenior policy analyst for the Canadian Cancer Society warned the result will be a "race to the bottom" for provincial standards protecting the public.

Rob Cunningham, an Ottawa lawyer, says the case has been "mischaracterized" by some as being about allowing beer brewed in one province to besold in another the so-called "free the beer" case.

He contends the case could have"serious implications" for the ability of provincial governments to adopt legislation for products such as alcohol, tobacco and marijuana, including controlling their retail distribution.

Cunningham, who attended the Supreme Court hearing,supports New Brunswick's position that provinces should have the ability to regulate harmful substances such as alcohol.

Otherwise, there would be "widespread alcohol smuggling," with lower prices leading to increased consumption, he said.

IfLeBlanc'sruling is allowed to stand, it would also "provide a mechanism for companies to get around provincial (and municipal) health, safety, environment and other legislation," Cunningham states in a legal commentary, titled R vComeau: Reflections from the Perspective of Health.

"A single province with a weak standard could have products manufactured and exported to other provinces," says thepaper published on the Canadian Legal Information Institute's website.

Itcould also open the door to legal challenges,such astobacco companies seeking to overturn provincial bans on menthol cigarettes, and pesticide companies trying to overturn provincial bans on the cosmetic use of pesticides, suggests Cunningham, whose paperis cited in written submissions to the court fromNew Brunswick, Newfoundland and Labrador and Nunavut.

Interpreting the 'Fathers'

But even if Cunningham's predictions proved true,the provinces and territories could mitigate "each and every one through true co-operative federalism,"Comeau'slawyers contend.

"Concern about such work does not absolve provincial officials from their duty to uphold the Constitution, nor does it allow them to argue against its proper interpretation in order to serve their parochial interests,"Blue,DariaPeregoudova, ArnoldSchwisbergandMikaelBernard argue in their replyfactum.

The lawyersassert the Fathers of Confederation intended to allowthe free movement of items between provinces,unrestrained by any barriers, whether they betariffs ornon-tariff restrictions that make importing and exporting products difficult or costly.