R v Comeau SCC File No.: 37398 (Download PDF Confirmation | Final Notice)

Tousaw Law Corporation is acting for Cannabis Culture and Jodie Emery who are intervening on behalf of cannabis business owners across Canada who may be deeply impacted by the Supreme Court’s ruling in the case of Gerard Comeau, a New Brunswick retiree who is charged with breaching a Provincial liquor control Act. The case calls for an overhaul of how courts interpret section 121 of the Constitution Act of 1867, otherwise known as the interprovincial trade provision.

Section 121 provides that:

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 interpretation courts have taken of this provision has been very restrictive for the past 95 years, ever since a case called Gold Seal v Alberta (1921) 62 SCR 424Gold Seal dealt with a prohibition on alcohol being shipped out of Alberta. This prohibition was challenged and the Supreme Court of Canada found that section 121 was focused on customs duties only, so, provinces could not charge customs duties on imported goods, but they could use statutory regulations to make interprovincial trade more difficult than it had to be.

Comeau flipped everything on its head. Comeau found that section 121 really means that provinces should have ‘free trade’, so, any barriers to the free movement of goods are prohibited, whether they are a tariff or not. This interpretation was put forth at the trial court level by Justice LeBlanc who re-interpreted section 121 in light of its historical context and overthrew 95 years of previously-settled law. In Justice LeBlanc’s view, the goal of section 121 is ‘free trade’, and free trade applies not just to tariffs applied to goods shipped between provinces, but also to any statutory regulations of any sort which results in a barrier to the free movement of goods between provinces.

Cannabis Culture, as a prominent, established, groundbreaking, and historical member of the cannabis industry felt compelled to intervene in this case. The same entrenched political ideals of isolationism and protectionism which have promulgated monopolistic government-owned and controlled industries in provinces like Ontario and New Brunswick, cannot be permitted to dominate the emerging legal cannabis industry. To allow for monopolies in Ontario and elsewhere is to explicitly consent to the criminalization of huge numbers of Canadians, and the ruination of large numbers of small businesses. Further, Provincial monopolies on the distribution and sale of cannabis will result in economic, scientific, and cultural stagnation for the cannabis community and extant industry.

While many might view Mr. Comeau’s cases of beer and Mrs. Emery’s buds of cannabis as completely different, disconnected, and philosophically unrelated, at their core the issues are the same: will small business survive government monopolies over an industry? Cannabis Culture, as always a champion of our cause, thinks we have a chance here to create some law in favour of our community. Tousaw Law Corporation agrees. And we would just like to point out that Humulus lupulus, the plant responsible for beer’s unique flavour, is a close relative of the cannabis plant that we know and love. If we can convince the Supreme Court of Canada that beer should be traded freely in Canada without restriction, perhaps we can convince them of the same for cannabis as well.