Provincial Prohibition in the 21st century | Therrien Couture

Provincial Prohibition in the 21st century

Administrative lawJean-Luc Couture, with the collaboration of Erin Schachter

Canadians travelling abroad, especially those returning with a few too many bottles, are familiar with the legal limits on importing alcohol into Canada. However, many may be shocked to learn that there is also a limit on how much alcohol one can bring across provincial borders in Canada. This limit stems from an anachronistic law that dates back to 1928, the Importation of Intoxicating Liquors Act1. Dating from a period when prohibition was in full force in the United States, this law makes it an offence for any person to import or transport alcohol across provincial borders2. Many members of parliament, including Prime Minister Justin Trudeau, have confessed that they have unknowingly broken the law by bringing home bottles of wine from vineyards in Canada3. This has led many to question whether this restriction is out of sync with present Canadian values4. Furthermore, recent case law addressing this issue has led some to question whether this restriction is unconstitutional. 

•    Legal Limits on Alcohol
Several amendments to the Liquors Act have been passed, but most provinces still limit the amount of alcohol one can transport or export across provincial borders. For instance, in Quebec and Ontario, an individual may, for personal use, bring into the province a maximum of 3 litres of spirits, 9 litres of wine and 24.6 litres of beer5. In New Brunswick, the Liquor Control Act6 specifies that an individual is prohibited by law from having in his possession more than 12 pints of liquor purchased outside the province7

•    Summary of R v. Comeau
In R v. Comeau8, Mr. Gérard Comeau decided to travel from New Brunswick, where he resided, to Quebec in order to buy alcohol at a lower price. Unbeknownst to Mr. Comeau, the RCMP was targeting individuals bringing more than five cases of beer over the border. Mr. Comeau was intercepted on his return to New Brunswick with 15 cases of beer and three bottles of liquor. The alcohol was seized and Mr. Comeau was fined for violating the NB Liquor Control Act. While the RCMP officers felt that they were merely applying the law, for Mr. Comeau the charges were an immense shock. In fact, it would seem that he was not the only cross border shopper; two thirds of the customers purchasing alcohol at the stores on the Quebec border were from New Brunswick. The important question raised in this case was whether this restriction violated the Constitutional rights of Canadians to enjoy free trade across provincial borders. 

•    The Debate
Cases such as this, have opened the debate in public and legal circles. The debate stems from an interpretation of section 121 of the Constitution, which states that all goods may “be admitted free into each of the other Provinces.” This section was first interpreted in 1921 to mean that goods moving across provincial borders cannot be charged duty. This means that any restriction with regard to limitations on the type and quantity of a good is constitutionally valid. In the Comeau case, the honorable Judge Ronald LeBlanc provides a meticulous analysis to determine whether the initial interpretation of section 121 was accurate. According to Judge LeBlanc, the Supreme Court erred in 1921, which has since led to the disuse and neglect of section 121 for nearly a century. The initial fathers of the confederation of Canada meant to allow free trade across provinces without any trade barriers9. Judge LeBlanc notes that restricting the meaning of section 121 to mean “trade without tariffs” is too restrictive as the true purpose of the section is to encourage free trade, not to limit it.

    The Implications
While the decision itself is important and resonates within the legal community across Canada, this case is bound to garner even greater attention in the future. On May 5, 2017 the Supreme Court of Canada granted leave to appeal the decision. The implications of this appeal are enormous. The Supreme Court will likely either confirm or reinterpret section 121 of the Constitution. After 95 years of dormancy, a reinterpretation of section 121 could substantially change interprovincial trade and Canadians will finally know whether transporting alcohol over provincial borders is a right protected by the Canadian Constitution10.  Some fear this may open the floodgates to a plethora of unexpected changes to interprovincial trade. In the meantime, the media surrounding this debate has led many Canadians to discover that they have been unknowingly breaking the law and it remains to be seen whether such cross-border shopping trips will continue to be illegal. 
 

1  Parliamentary Debate, Bill C-311 an Act to Amend the Importation of Intoxicating Liquors Act (Interprovincial importation of wine for personal use) 41st par, 1st sess (2013) online at https://openparliament.ca/bills/41-1/C-311/ [Parliamentary Debate].
2  Importation of Intoxicating Liquors Act RSC 1985 c 1-3. (hereafter referred to as the “Liquors Act”)
3  Justin Trudeau, comments as representative of the liberal party Papineau constituency http://www.ourcommons.ca/DocumentViewer/en/41-1/house/sitting-129/hansard
4  Parliamentary debate, supra note 1. 
5  Regulation respecting the possession and transportation into Québec of alcoholic beverages acquired in another province or a territory of Canada c S-13, r 6.1; Bill C-311 Amendment to the Importation of Intoxicating Liquors Act. 
6  Liquor Control Act, RSNB 1973, c L-10 [NB Liquor Control Act]
7  NB Liquor Control Act ibid 43(c).
8  R v. Comeau 2016 NBPC 3
9  Ibid see para 101. 
10  Section 121 Constitution Act of 1867 available online at http://www.justice.gc.ca/eng/csj-sjc/just/05.html.

 

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