Border booze case goes before New Brunswick Court of Appeal

The border booze case of Gerard Comeau goes before New Brunswick’s highest court Thursday in another test of whether interprovincial restrictions on trade in alcohol are unconstitutional.

Comeau was charged with bringing too much alcohol and wine into New Brunswick from Quebec in October 2012.

With help from the Canadian Constitutional Foundation, the retired steelworker from Tracadie mounted a constitutional defence, arguing the section of the New Brunswick Liquor Control Act that limits how much alcohol can be brought into the province by an individual is unconstitutional.

Comeau had brought 14 cases of beer and three bottles of alcohol into the province. New Brunswick’s personal importation limit under the Liquor Control Act regulations is 12 pints of beer or one bottle of alcohol or wine.

In a provincial court decision on April 29, Judge Ronald LeBlanc acquitted Comeau on the charge, concluding the Fathers of Confederation intended interprovincial free trade.

Court of Appeal hearing

The provincial government appealed the case to the New Brunswick Court of Appeal, which is to hear arguments starting at 10 a.m.

The attorney general’s office argues LeBlanc made legal errors pertaining to Section 121 of the Constitution Act and Section 134 of the New Brunswick Liquor Control Act.

Section 121 of the Constitution Act states: “All articles of the growth, produce or manufacture of any of the provinces shall, and from and after the Union, be admitted free into each of the other provinces.”

The province alleges LeBlanc erred in law with his legal interpretation of Section 121 of the Constitution Act in the following ways:

  • By interpreting the section to have a meaning contrary to that determined by prior decisions of the Supreme Court of Canada, which are binding on him.
  • By concluding without evidence that previous decisions of the Supreme Court were rendered without the benefit of evidence before him.
  • By finding that placing Section 121 in the category of Revenues, Debts, Assets and Taxation in the Constitution Act is of no legal consequence to the determination of its meaning.
  • By giving Section 121 a meaning that is internally inconsistent and conflicts with Sections 91, 92, and 94 of the Constitution Act.
  • By finding Section 121 was drafted as an absolute free trade provision that constitutionally must be rigorously interpreted as such today.


Lawyer Mikael Bernard is one of Gerard Comeau’s lawyers. (Bridget Yard/CBC)

The province also contends the trial judge made four errors in law pertaining to Section 134 of the New Brunswick Liquor Control Act.

Before Comeau’s provincial court trial began in August 2015, the Canadian Constitution Foundation stated it expected the case to eventually end up before the Supreme Court of Canada.

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