Pubdate: Thu, 23 Nov 2017
Source: Victoria Times-Colonist (CN BC)
Copyright: 2017 Times Colonist
Author: Giuseppe Valiante
Page: B4


MONTREAL - As provinces begin drafting laws for the control and sale
of cannabis on their territories, an upcoming Supreme Court of Canada
case is threatening to derail their plans.

Ontario and Quebec, for instance, want to create provincial cannabis
monopolies. As a consequence, Quebecers and Ontarians would be
prohibited from mailordering recreational cannabis from licensed
producers outside their home province or buying pot from anyone other
than their provincial government.

But on Dec. 6, the Supreme Court begins hearing arguments in a case
that could mean the end of state-run monopolies as they apply to
another favourite Canadian vice: alcohol.

If the justices rule in favour of a New Brunswick man fighting against
provincial liquor monopolies, the decision will almost certainly
trigger lawsuits across the country seeking to dismantle similar
government-run corporations for marijuana, according to legal and
trade experts. "It would mean big changes - a more free and fair
cannabis industry," said Jack Lloyd, one of the lawyers representing
marijuana activists who received intervener status in the Supreme Court 

The case began in 2012, when RCMP arrested Gerard Comeau on his return
to New Brunswick after he had bought alcohol in Quebec. He was fined
for violating New Brunswick law, which limits the amount of booze that
can be brought into the province from elsewhere in Canada.

Comeau contested the ticket, arguing Sec. 121 of the Constitution Act,
1867, mandates that all Canadian goods be admitted freely across the

His lawyers argued the fathers of Confederation wanted a single market
for all products made in Canada. Comeau won, and his case has made its
way to the highest court in the country.

Legal and trade experts believe the Supreme Court will likely rule in
favour of Comeau, but their opinions diverged on how that decision
would apply to cannabis.

Brian Lee Crowley, managing director of the Macdonald-Laurier
Institute, an Ottawa-based think tank, said a Supreme Court ruling in
favour of Comeau would prevent provinces from discriminating between
Canadian suppliers of alcohol - or cannabis.

"I think [a Comeau win] would make provinces not be able to prevent
you from, say, mail-ordering marijuana from someone in another part of
the country," Crowley said in an interview.

Pier-Andre Bouchard St-Amant, a professor at Quebec's school of public
policy, said "according to all the prognostications, the Supreme Court
will rule in favour of Comeau."

He added, however, he believes provinces would still be allowed to
enter into agreements with one another to limit the cross-border trade
of certain products, depending on the scope of the ruling.

Andrew Smith of the University of Liverpool Management School, was an
expert witness in the Comeau case and said he believes the framers of
the Constitution wanted a single market "without fetters on
interprovincial trade."

Smith said if the Supreme Court agrees with Comeau, companies will
surely attempt to use the judicial precedent to argue against
provincial cannabis monopolies. "I don't think that this will happen
in practice," he said. Australia's constitution has a free trade
clause similar to Canada's, and the European Union is also governed by
free-trade principles - but not with regard to recreational drugs, he

"People in EU countries cannot drive to Amsterdam, where marijuana is
openly sold in cafes, and then drive back to say, Germany, with the
marijuana," Smith said.

"The principle of the single market doesn't extend to such
controversial products" in Australia or the EU, he said.

Whether marijuana will be mentioned in the Supreme Court's ruling, or
how broad it will be, remains to be seen. But Lloyd said if free trade
in Canada doesn't apply to cannabis, then the black market will
continue to fill an important void.
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