If you take a case to court against the government and you win, it becomes a precedent that other governments are supposed to follow, right?
Not so fast. You will recall a couple of weeks ago, on April 29, Gerard Comeau won his case against the New Brunswick government. He had been charged in 2012 for bringing 14 cases of beer and three bottles of liquor across the border from Quebec in violation of strict limits put in place by the New Brunswick Liquor Control Act. The New Brunswick Liquor Control Corp maintains a monopoly on liquor sales – charging more than double the price in Quebec – and the authorities issued Comeau a $295 ticket for the violation.
The Canadian Constitution Foundation took on the case and successfully won its argument that the limits placed on alcohol imports violated section 121 of the Constitution Act, 1867 and were, in effect, an illegal trade barrier. Legal scholars were enthused, and started to write about how this decision would transform liquor laws across the country, rewrite arcane provincial rules on professional standards, even dismantle supply management marketing boards for eggs, milk and poultry.
The trouble is, the New Brunswick government appears to be treating the case as a one-off and ignoring the judgment, even going so far as to signal it is going to continue enforcing the law. What’s more, this decision came down in provincial court which means it has to be affirmed by a higher court to apply outside of New Brunswick. The government has until the end of the month to appeal the case, but what if they don’t?
Derek From, a lawyer for the Canadian Constitution Foundation, told me if it doesn’t get appealed they will have to find another test case to build legal precedents outside of New Brunswick. The other option is the federal government could decide this is of such importance that they refer it to the Supreme Court in a reference case that would apply across the country. That occurred when the court defined the meaning of marriage, for instance. In any case, it is becoming clear it will be a much longer road to topple other provincial trade barriers, let alone this one. We’ll keep an eye on how it turns out.
My full interview with Derek From is below.