New Brunswick appeals border booze court ruling

The New Brunswick government is appealing a provincial court ruling thatthrew out provincial limits on imported alcohol from other provinces.

In an April 29 decision, provincial court Judge Ronald LeBlanc dismissed charges that retiree Gerard Comeau violated the New Brunswick Liquor Control Act by bringing 14 cases of beer and three bottles of alcohol into the province from Quebec.

LeBlanc ruled the New Brunswick importation limit of 12 pints of beer or one bottle of alcohol or wine was a violation of the Constitution's provisions for free trade between the provinces under Section 121.

• New Brunswick judge throws out cross-border booze limits
• N.B.'s Public Prosecutions office says cross-border liquor law still in effect

On Friday, the Office of the Attorney General filed a notice of appeal with the New Brunswick Court of Appeal, asking for it hear the appeal,bypassing the Court of Queen's Bench as a courtof appeal.

Errors in law alleged

The province contends thatLeblancmade errors of law in his decision to dismiss the charge againstComeau.

In the notice of appeal filedwith the court, the attorney general's office maintains thoseerrors pertaintoSection 121 of the Constitution Act and Section 134 of the New BrunswickLiquor 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 theUnion, be admitted free into each of the other provinces."

The province allegesLeBlancerred in law with hislegal 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 ofCanada, which are binding on him.
• By concluding without evidence that previous decisions of the Supreme Court were rendered without the benefit of evidence before the trial judge.
• By finding that placing Section 121 in thecategory of Revenues, Debts, Assets and Taxation in the Constitution Act is of no legal consequence to thedeterminationof its meaning.
• By giving Section 121 ameaning that is internally inconsistent and conflicts with Sections 91, 92, and 94 of the Constitution Act.
• By finding Section 121 was drafted as anabsolute free tradeprovision that constitutionally must berigorouslyinterpreted as such today.

Section 134 of the Liquor Control Act states people in New Brunswick may only have liquorpurchased from the NewBrunswick Liquor Corporation, except for the limits set out in regulations. The notice ofappeal cites four allegederrorsin law byLeBlancpertaining to Section 134.

• Contradictory legal interpretations of Section 134, by finding in paragraph 24 of his decisionthe section "does not prohibit the importation of liquor from outside the province" and the citing the contrary in paragraph 168.
• By interpreting Section 134 as imposing a "prohibition from import" contrary to a legal interpretation of the same section by the New Brunswick Court of Appeal in another case.
• By finding Section 134 is only triggered by alcohol that crosses the provincial boundary.
• By failing to determine the legal significance ofComeau'sdecision not to challenge the constitutionality of the federal Importation of Intoxicating Liquors Act.

The attorney general is asking that its appeal be allowed and the dismissal of charges be reversed andComeaube found guilty as charged on the basis of the agreed statement of facts entered during the trial.

Comeau's defence was backed by the Canadian Constitution Foundation. Before Comeau's trial began, the foundation indicated it expected the case to eventually end up before the Supreme Court of Canada.