R. v. Comeau (G.), (2016) 448 N.B.R.(2d) 1 (PC)

JudgeLeBlanc, P.C.J.
CourtProvincial Court of New Brunswick (Canada)
Case DateApril 29, 2016
JurisdictionNew Brunswick
Citations(2016), 448 N.B.R.(2d) 1 (PC);2016 NBPC 3

R. v. Comeau (G.) (2016), 448 N.B.R.(2d) 1 (PC);

    448 R.N.-B.(2e) 1; 1179 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MY.002

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MY.002

Her Majesty The Queen v. Gérard Comeau

(05672010; 2016 NBPC 3; 2016 NBCP 3)

Indexed As: R. v. Comeau (G.)

Répertorié: R. v. Comeau (G.)

New Brunswick Provincial Court

LeBlanc, P.C.J.

April 29, 2016.

Summary:

Résumé:

Comeau purchased alcoholic beverages in Quebec at a cheaper price than that which he would have paid had he purchased the alcohol in New Brunswick, where he resided. He transported the alcohol into New Brunswick. The police intercepted his vehicle and seized 354 bottles/cans of beer and three bottles of liquor found in the trunk. Comeau was charged with "did have or keep liquor not purchased from the Corporation", an offence under s. 134(b) of the New Brunswick Liquor Control Act. The defence moved for dismissal, submitting that s. 134(b) was of no force and effect as it contravened s. 121 of the Constitution Act, 1867: "s. 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 New Brunswick Provincial Court dismissed the charge. Section 134(b) of the Liquor Control Act constituted a trade barrier which violated s. 121 of the Constitution Act, 1867

and was therefore of no force or effect as against Comeau.

Constitutional Law - Topic 9

General - Confederation - Effect of - On provincial legislation - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 1005

Interpretation of Constitution Act - General principles - Principle of flexibility - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 1014

Interpretation of Constitution Act - General principles - History - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 2508

Determination of validity of statutes or acts - General principles - Provincial legislation - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 2826

Determination of validity of statutes or acts - Offences - Provincial offences - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 7291

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Liquor control - [See Constitutional Law - Topic 9015 ].

Constitutional Law - Topic 9015

Revenues, debt, assets and taxation - Canadian manufactures, etc. (incl. interprovincial trade) - Liquor control - The accused was charged with "did have or keep liquor not purchased from the Corporation", an offence under s. 134(b) of the New Brunswick Liquor Control Act - The New Brunswick Provincial Court dismissed the charge - Section 134(b) constituted a trade barrier which violated s. 121 of the Constitution Act, 1867: "s. 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." - In arriving at that conclusion, the Court examined the applicable rules of interpretation for constitutional documents, including the principle of flexibility, and the legislative history of the Constitution Act, 1867, including the historic events giving rise to the "constitutional moment", and the relevant jurisprudence - The current state of the law was that s. 121 did nothing more than protect the movement of Canadian goods against interprovincial "custom duties" (the "Gold Seal" case (1921) (S.C.C.)) - That narrow and strict interpretation was unwarranted and unfounded, as established by expert evidence on the historical context of s. 121 - Further, s. 121 had not fallen into desuetude - "Its disuse or neglect has arisen as a result of an unfounded judicial interpretation which effects have continued for nearly a century."

Courts - Topic 19

Stare decisis - Authority of judicial decisions - Constitutional issues - [See Constitutional Law - Topic 9015 ].

Liquor Control - Topic 505

Legislation - General - Application - [See Constitutional Law - Topic 9015 ].

Statutes - Topic 1603

Interpretation - Extrinsic aids - General - Constitutional context - [See Constitutional Law - Topic 9015 ].

Statutes - Topic 1604

Interpretation - Extrinsic aids - History - [See Constitutional Law - Topic 9015 ].

Statutes - Topic 2404

Interpretation - Interpretation of words and phrases - General principles - Words which have received a judicial construction - [See Constitutional Law - Topic 9015 ].

Words and Phrases

Admitted free - The New Brunswick Provincial Court addressed the meaning of the phrase "admitted free", found in s. 121 of the Constitution Act, 1867 - See paragraphs 49 to 69.

Counsel:

Avocats:

William Richards and Kathryn Gregory, for the Attorney General of New Brunswick;

Arnold Schwisberg, Mikael Bernard and Karen Selick, for the defendant.

This matter was heard at Campbellton, New Brunswick, on August 25-28, 2015, before LeBlanc, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision and reasons, dated April 29, 2016.

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8 practice notes
  • R. v. Comeau, 2018 SCC 15
    • Canada
    • Supreme Court (Canada)
    • April 19, 2018
    ...N.B.J. No. 232 (QL), 2016 CarswellNB 445 (WL Can.), dismissing an application for leave to appeal a decision of LeBlanc Prov. Ct. J., 2016 NBPC 3, 448 N.B.R. (2d) 1, 1179 A.P.R. 1, 398 D.L.R. (4th) 123, [2016] N.B.J. No. 87 (QL), 2016 CarswellNB 167 (WL Can.), declaring s. 134(b) of the Liq......
  • THE SUPREME COURT'S STRANGE BREW: HISTORY, FEDERALISM AND ANTI-ORIGINALISM IN COMEAU.
    • Canada
    • University of New Brunswick Law Journal No. 70, January 2019
    • January 1, 2019
    ...of the vehicle involved. In general, two-thirds of those doing business at these border town outlets were from New Brunswick (R v Comeau, 2016 NBPC 3 at paras 7, 11 [Comeau (3) Liquor Control Act , RSNB 1973, c L -10, s 134(b). "Free the beer" was a short-hand slogan for the case that was......
  • Alberta (Attorney General) v. British Columbia (Attorney General), 2021 FCA 84
    • Canada
    • Court of Appeal (Canada)
    • April 26, 2021
    ...of the Liquor Act was unconstitutional. [99] The matter was heard by the New Brunswick Provincial Court which sided with Mr. Comeau (2016 NBPC 3, 448 N.B.R. (2d) 1). The Crown, pursuant to subsection 116(3) of the Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1 sought leave to app......
  • Beer, Bedford, And Beyond — The Supreme Court Of Canada And The Limits Of Precedent In R. V. Comeau
    • Canada
    • Mondaq Canada
    • June 27, 2018
    ...as "vertical" precedent. 8 Comeau, at para. 17. 9 Carter, at para. 44, quoting Bedford, at para. 42 (emphasis added). 10 R. v. Comeau, 2016 NBPC 3, 448 N.B.R. (2d) ["trial reasons"], at para. 11 Comeau, at para. 36. 12 Comeau, at para. 37. 13 Cf. E. Meese, "The Law of the Constitution: A Bi......
  • Request a trial to view additional results
3 cases
  • R. v. Comeau, 2018 SCC 15
    • Canada
    • Supreme Court (Canada)
    • April 19, 2018
    ...N.B.J. No. 232 (QL), 2016 CarswellNB 445 (WL Can.), dismissing an application for leave to appeal a decision of LeBlanc Prov. Ct. J., 2016 NBPC 3, 448 N.B.R. (2d) 1, 1179 A.P.R. 1, 398 D.L.R. (4th) 123, [2016] N.B.J. No. 87 (QL), 2016 CarswellNB 167 (WL Can.), declaring s. 134(b) of the Liq......
  • Alberta (Attorney General) v. British Columbia (Attorney General), 2021 FCA 84
    • Canada
    • Court of Appeal (Canada)
    • April 26, 2021
    ...of the Liquor Act was unconstitutional. [99] The matter was heard by the New Brunswick Provincial Court which sided with Mr. Comeau (2016 NBPC 3, 448 N.B.R. (2d) 1). The Crown, pursuant to subsection 116(3) of the Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1 sought leave to app......
  • Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission, 2018 ABQB 476
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 19, 2018
    ...of Canada has clarified the law and provided specific guidance on the interpretation of s. 121. [75] In the trial decision in Comeau, 2016 NBPC 3, LeBlanc PCJ found that, given the limited prior analysis, it was appropriate for him to construe s. 121 from scratch. Relying on expert historic......
3 firm's commentaries
1 books & journal articles
  • THE SUPREME COURT'S STRANGE BREW: HISTORY, FEDERALISM AND ANTI-ORIGINALISM IN COMEAU.
    • Canada
    • University of New Brunswick Law Journal No. 70, January 2019
    • January 1, 2019
    ...of the vehicle involved. In general, two-thirds of those doing business at these border town outlets were from New Brunswick (R v Comeau, 2016 NBPC 3 at paras 7, 11 [Comeau (3) Liquor Control Act , RSNB 1973, c L -10, s 134(b). "Free the beer" was a short-hand slogan for the case that was......

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