A New Brunswick man, Gérard Comeau, has fought back against the attempt of the government of New Brunswick to restrict the interprovincial movement of beer. He has taken the case to court.
Here is the provision of the Constitution Act, 1867, in question:
Section 121 of the Constitution Act, 1867 provides that:
121. All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
The provision has been interpreted by the courts in a way that has restricted its plain meaning. “Free” has come to mean “free of duty” or customs imposts, and not free as in freely. It takes the narrowness of the legal mind to misinterpret the plain intent of the legislation, but that is the result of their training.
Since then, there has grown up host of laws passed by provinces to restrict the interprovincial movement of alcoholic drinks, agricultural produce, and other items. The case arose in 1921 in Gold Seal versus AG Alberta and the decision of Mr. Justice Migneault still holds.
I think that, like the enactment I have just quoted, the object of section 121 was not to decree that all articles of the growth, produce or manufacture of any of the provinces should be admitted into the others, but merely to secure that they should be admitted “free,” that is to say without any tax or duty imposed as a condition of their admission. The essential word here is “free” and what is prohibited is the levying of custom duties or other charges of a like nature in matters of interprovincial trade.
It will be interesting to see whether the provincial bans on the importation of alcoholic beverages continue to be upheld. Given that the Supreme Court is in a contest to prove itself more popular than the elected governments of Canada, I suspect that Gold Seal will be substantially revised in the direction of open borders.
We can hope.