The 95-year hangover: What R v Comeau means for Canadian internal trade

by Dentons


[Co-author: Eric Freilich - student]


The recent New Brunswick Provincial Court decision of R v. Comeau1 illustrates how one man seeking cheaper beer may create huge uncertainty in the laws governing inter-provincial trade of alcoholic beverages. In this case, Justice Ronald LeBlanc re-opened a constitutional question that had not been asked for 95 years, and in doing so, may have set in motion major changes to the internal trade landscape of Canada. Although Comeau does not necessarily have much effect alone, it may act as a catalyst that brings uncertainty in an issue that was thought to have been firmly decided nearly a century ago.

Summary of the case

Gerard Comeau, a New Brunswick resident, purchased 14 cases of beer and three bottles of liquor in Québec and then drove home. Unbeknownst to him, the RCMP had coordinated a crime-reduction initiative and was targeting people carrying more than five cases of beer across provincial borders. They tracked Mr. Comeau on his way into Québec, and radioed their New Brunswick counterparts as he returned to New Brunswick. Mr. Comeau was stopped, investigated, had his alcohol confiscated, and then was given a CA$292.50 fine.

The charge against Mr. Comeau was that he had violated New Brunswick’s Liquor Control Act, which stipulates that subject to certain low-volume exceptions, “No person … shall have or keep liquor not purchased from the [New Brunswick Liquor] Corporation.”2 He challenged the constitutionality of that provision, arguing that it violated the spirit of free trade between the provinces under section 121 (“Section 121”) of the Constitution Act, 1867 (the Constitution Act).3

The thrust of Mr. Comeau’s argument was that the Fathers of Confederation had explicitly intended there to be free trade between the provinces, and that the Liquor Control Act created a barrier to trade. While not a tariff or tax (previously recognized as a violation of Section 121),4 Mr. Comeau argued that restrictions on possessing alcohol not purchased from the New Brunswick Liquor Corporation creates a non-tariff trade barrier, and therefore violates the Constitution Act.

The Crown relied on the 1921 Supreme Court of Canada (SCC) decision of Gold Seal Limited v. Dominion Express Company,5 which held that Section 121 is limited to guaranteeing interprovincial trade that is free of taxes or tariffs. Gold Seal suggests that the Liquor Control Act, which does not prescribe taxes or tariffs, does not violate the Constitution Act.

After discussing the purpose of Section 121, Justice LeBlanc found that the non-tariff barrier to free trade created by the Liquor Control Act violates the Constitution Act, and was of no force or effect against Mr. Comeau. Justice LeBlanc noted that had the SCC had access to the evidence he had regarding the intentions behind Section 121, Gold Seal would have been decided differently.


Current reaction to Comeau ranges from healthy scepticism to absolute jubilation. Sceptics (particularly from the legal community), argue that a higher court is likely to overturn the decision, particularly given its constitutional implications. For example, some commentators take issue both with Justice LeBlanc’s analysis of Section 121 on a textual level, and point out that such an analysis is inconsistent with Canada’s system of division of powers, which assigned to the provinces the right to regulate and/or ban certain products to further their priorities.6 Additionally, because Comeau was decided at the provincial level, the case, even if upheld by the New Brunswick Court of Appeal, represents only persuasive authority for other provinces.

Others are more positive about Comeau’s potential implications. Some New Brunswick consumers are treating it as a get-out-of-jail-free card, as Québec sales to New Brunswickers have seen a dramatic increase since the decision was released.7 Others, including liquor manufacturers, claim that Comeau is the first chink in the antiquated liquor law armour that protects province-run liquor monopolies. BC-based wine lawyer Mark Hicken argues that if Comeau is granted leave to appeal to the SCC and eventually affirmed, it could, “Be the start of a new era when Canadians from one part of the country will be able to legally purchase wine, or other alcohol, from another part of the country”.8


Comeau has been appealed by the New Brunswick Government. In the interim, the decision means that New Brunswickers can likely purchase alcohol from Québec and carry it home for personal consumption without (for the time being), being charged under the Liquor Control Act. Although the New Brunswick Government has stated that the Liquor Control Act remains in effect, and the exemption currently only applies to Mr. Comeau, it seems unlikely that other individuals carrying liquor across the provincial border would be charged under the Liquor Control Act until Comeau is clarified.

However, although it was not considered in Comeau, there is another piece of legislation that prohibits this sort of behaviour. Subsection 3(1) of the Importation of Intoxicating Liquors Act (IILA) states that,

“Notwithstanding any other Act or law, no person shall import, send, take or transport, or cause to be imported, sent, taken or transported, into any province from or out of any place within or outside Canada any intoxicating liquor, except such as has been purchased by or on behalf of, and that is consigned to Her Majesty or the executive government of, the province into which it is being imported, sent, taken or transported, or any board, commission, officer or other governmental agency that, by the law of the province, is vested with the right of selling intoxicating liquor.”9

Section 5 details the penalty that results from contravention of any provision of the IILA (a small fine, a larger fine, a term of imprisonment for a first, second and subsequent offence, respectively).

The fact that Mr. Comeau was not charged under the IILA does not prevent another person from being so charged should they engage in similar behaviour, even if Comeau is affirmed by the SCC.

However, if the SCC does affirm Comeau, it could be argued that the analysis Justice LeBlanc applied to the Liquor Control Act in light of Section 121 could be applied by another court if the IILA were to be challenged. A compelling argument could be made that subsection 3(1) of the IILA is unconstitutional to the extent that it erects a non-tariff trade barrier. In that event, liquor purchased legally in one province could be brought to another province, in any quantity.

Such an event, although exciting to some consumers, does not on its own signal the end of provincial monopolies on the sale of liquor. The power to have a monopoly comes not from the pieces of provincial legislation concurrent to the Liquor Control Act (which could all be subject to the same constitutional challenge as in Comeau) or the IILA, but from section 92(13) of the Constitution Act, which gives the provinces the right to regulate property and civil rights.10 There is significant jurisprudence that affirms the provincial ability to restrict the sale of certain goods or services.11 Comeau being affirmed by the SCC combined with the IILA being declared unconstitutional would allow legally purchased liquor to be taken anywhere in Canada, but it does not prohibit restrictions on sale. The essence of Comeau is only that provinces are not allowed to go so far in regulating sale as to restrict the intra-Canadian movement of legally-purchased alcohol.

This is not to suggest that Comeau will not impact the inter-provincial liquor trade, particularly when considering the effects of e-commerce. For example, a buyer in BC could purchase liquor from any provincially-sanctioned store in Québec and have it shipped to them. If affirmed, Comeau could represent a significant step in altering the liquor trade in Canada leading to freer trade in alcoholic beverages that is currently prohibited either by the IILA or provincial legislation that restricts the importation from another province.

The legal framework around liquor trade is already changing. In 2012, Bill C-311 introduced an amendment to the IILA that allowed individuals to move wine from one province to another, so long as it was purchased for personal consumption. The Federal Government has vowed to pursue an internal trade agreement that would affect a number of regulated goods (including liquor). A recently released Senate report calls for the elimination of several barriers to interprovincial trade (including those affecting alcohol)12 – barriers that cost the country an estimated CA$14 billion annually according to a report from the Canadian Federation of Independent Business.13 The result in Comeau thus seems to be part of a wider movement towards a more liberalized internal trade environment.

While Comeau did not begin the conversation, it is potentially an important step in getting the SCC to provide some clarity on the matter. The Senate’s report on interprovincial trade barriers recommended that the meaning of Section 121 be referred to the SCC for clarification, and the Conservative Party of Canada has recommended that Comeau be referred along with it.

It is possible that Justice LeBlanc’s analysis in Comeau could eventually apply to all goods in Canada. If the purpose of section 121 is to create completely unrestricted interprovincial trade, one could expect to see the restrictions on dairy, eggs, and poultry challenged. Taken to its fullest extent, the ruling in Comeau could lead to a significant shakeup of the commercial landscape of Canada. In the meantime, however, it may be wise to temper some of the enthusiasm – at least until the New Brunswick Court of Appeal releases its decision.

1 R v Comeau, 2016 CanLII 23747 (NB PC) (Comeau).
2 Liquor Control Act, RSNB 1973, c L-10, s 134 (b).
3 Constitution Act, 1867, 30 & 31 Victoria, c 3 (U.K.).
4 Atlantic Smoke Shops Limited v Conlon, 1941 SCR 670, 4 DLR 81.
5 Gold Seal Limited v Dominion Express Company, [1921] 62 SCR 424, 62 DLR 62 (Gold Seal).
6 Gillman, Gary. Garry Gillman: The Comeau Case is Not Quite a Game Changer. National Post. 2 June, 2016.
7 The Canadian Press. New Brunswick Court Ruling Boosts Beer Sales in Québec. Business News Network. 2 May, 2016.
8 Hicken, Mark. NB Case Strikes Down Interprov Liquor Restrictions. 29 April, 2016.
9 Importation of Intoxicating Liquors Act, RSC 1985, c I-3, s3 (1).
10 Constitution Act, supra note 3 at s. 92(13).
11 See, for example, Parsons v Citizens’ Insurance Co. of Canada, 1881 CarswellOnt 253, AC 406.
12 Curry, Bill. Provincial Trade Barriers Costing Economy Billions: Report. The Globe and Mail. 14 June, 2016.
13 Wingrove, Josh. Joe Canadian Spurns Archaic Trade Laws With 15 Cases of Beer. Bloomberg. 16 May, 2016.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.