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Alberta Supreme Court’s cross-border alcohol ruling could hit Alberta in pipeline dispute

It’s hard at first blush to see the link between the free movement of beer and the shipment of oil – but Thursday’s Supreme Court ruling on out-of-province alcohol includes wording that could hit retaliatory measures Alberta has aimed at B.C. in the continuing battle over the Trans Mountain pipeline expansion.

In its unanimous ruling in the case of Gérard Comeau, a New Brunswick man who was fined for bringing a large quantity of Quebec beers and spirits back home, the court upheld the New Brunswick restriction on possessing alcoholic beverages bought out of province.

But in doing so, the Supreme Court also gave a nuanced explanation that said while New Brunswick’s restriction is valid, no trade barriers between provinces should be created with the “primary purpose” of affecting flow of goods across boundaries. A rule designed to “enable public supervision of the production, movement, sale, and use of alcohol” is fine, but “a law that in essence and purpose impedes cross-border trade cannot be rendered constitutional.”

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The wording might matter in the pipeline dispute, because Alberta introduced legislation this week that would allow the province to restrict the flow of its oil and refined petroleum products such as gasoline or diesel. British Columbia is not mentioned in the bill and the written aim is to get the best pricing for Alberta’s fossil-fuel products.

However, Premier Rachel Notley’s government has also indicated the bill’s political purpose is to push back against “extreme and illegal actions on the part of the B.C. government” in the fight over the $7.4-billion pipeline expansion.

On Thursday, the B.C. Attorney-General immediately called the Supreme Court ruling a boost to his province’s position that it would be unconstitutional for Alberta to restrict the flow of oil or gasoline with the primary purpose of putting pressure on B.C.

“[It’s] exactly what we have been saying in response to Alberta’s proposed legislation – that it’s unconstitutional, that they are not allowed to use their oil resources to punish other provinces,” David Eby said.

Likewise, Simon Fraser University political scientist Andrew Heard – whose work focuses on the constitution – noted that the intent of Alberta’s bill matters, even if the wording does not mention punishing B.C. “Many public statements by Premier Notley and other cabinet ministers have made that intention clear,” he added.

Alberta Finance Minister Joe Ceci said the Comeau case does not relate to his government’s bill on oil shipments. “Those are two different things. One is on beer, bringing it in your trunk and the other is on pipelines.”

But Carissima Mathen, vice-dean at the University of Ottawa’s faculty of law, said the Comeau case raises questions about the purpose of several restrictive provincial regimes. She gave the example of Alberta’s ban on wine from B.C. – imposed in February and removed two weeks later when it appeared B.C. had stepped back in its pipeline fight – saying it might not have held up to scrutiny after the Supreme Court ruling.

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“It seems clear with the wine ban that the purpose was to prevent B.C. from getting its wine into Alberta,” she said. “This was clearly directed at a province, and was a trade barrier.”

But Trevor Tombe, an associate professor of economics at the University of Calgary, said if restricting trade “is really just an incidental outcome, then it’s okay.” He argues Alberta did not put a tariff on or prohibit imports of B.C. wine, it simply told the government-controlled monopoly that supplies liquor stores to stop buying it.

Of course, many in Alberta would argue that B.C. government is the guilty party in attempting to enact a trade barrier.

Alberta initiated the wine ban as a retaliatory measure when B.C. announced plans to limit the flow of diluted bitumen pending further study on concerns about oil-spill response.

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With reports from Justine Hunter in Victoria, and The Canadian Press

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