A New Brunswick judge has ruled the province's restrictions on bringing alcohol into the province for personal use violate the Constitution's free-trade provisions.
Provincial court Judge Ronald LeBlanc ruled Friday in the case of a retired NB Power linesman who was charged under the New Brunswick Liquor Control Act for bringing 14 cases of beer and three bottles of liquor into New Brunswick.
In a decision that took 160 minutes to read, LeBlanc dismissed the charge against Gerard Comeau of Tracadie N.B., in a case that was being watched closely as a constitutional challenge that could impact provincial liquor laws across Canada.
Comeau was pleased. "After three years, I'm thirsty," he said outside the court.
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Comeau said the beer and alcohol that was seized from him had not yet been returned to him.
In his judgment, LeBlanc concluded the Fathers of Confederation intended interprovincial free trade.
The judge also noted that precedent couldn't be ignored and the issue of interprovincial movement of alcohol has been in Canada's courts as far back as 1921 in a case pitting Gold Seal Ltd. against Alberta.
'After three years, I'm thirsty.' - Gerard Comeau
LeBlanc said he found it interesting Comeau was charged following an RCMP operation that targeted people importing more than five cases of beer into New Brunswick from Quebec, where prices are significantly cheaper.
People carrying four cases were still breaking the law, he said.
LeBlanc said the operation showed a laissez-faire police attitude toward the provisions in the Liquor Control Act.
The trial hinged on Section 134 of the New Brunswick Liquor Control Act. It states people in New Brunswick may only have liquor purchased from the New Brunswick Liquor Corporation, except for limits set out in regulations.
Those regulations limited the importation of alcohol for personal use to one bottle or liquor or wine, or 12 pints of beer.
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LeBlanc said the Fathers of Confederation adopted continuity with the British system at a time when free trade was being pursued in Britain.
LeBlanc said expert evidence presented during the trial on the historical context of Section 121 of the Constitution has changed the circumstances of the discussion about protectionist provincial alcohol policies.
That section of the Constitution states: "All articles of the growth, produce or manufacture of any of the provinces shall, from and after the Union, be admitted free into each of the other provinces."
Historian Andrew Smith of the University of Liverpool testified at Comeau's trial that "[The Fathers of Confederation] would have said this is completely against why we created Confederation in the first place."
LeBlanc ruled Section 134 (b) of New Brunswick's law violates Section 121 of the Constitution and dismissed the charges against Comeau.
The Canadian Constitution Foundation had previously said it expects the case to end up before the Supreme Court of Canada, regardless of how LeBlanc ruled on Friday.
That group, which provided financial backing for the case, gave credit to Comeau's determination.
"Gerard made the decision that rather than pay a fine of almost $300, which would be painful and unfair, but easy, he was going to take the harder route and actually challenge it," said Marnie Soupcoff of the foundation
"And if he hadn't done that, we wouldn't have been able to initiate this constitutional challenge, so it was really Gerard's stubbornness if you will, but in a very good way, his persistence, his insistence that he wanted to see justice done."
After the decision, the Crown said it was too early to think about whether an appeal will be filed.
Defence attorney Mikael Bernard said, "I wouldn't fall off my chair" when asked whether he anticipated an appeal.
"It's vindication, or it confirms what hundreds of thousands of New Brunswickers have been doing for the past 30, 40 years is not a crime," said Bernard.
The provincial government department responsible for N.B. Liquor declined to comment on Friday's decision.