Appealing To The Supreme Court Of Canada From A Refusal Of Leave To Appeal By A Provincial Court Of Appeal

Readers may recall that in R. v. Comeau, 2016 NBPC 3 in which we are acting for M. Comeau, the New Brunswick provincial court dismissed the charges against M. Comeau under s. 134(1)(b) of the Liquor Control Act, R.S.N.B. 1973, c. L-10 for having liquor not purchased from the provincial liquor corporation (Comeau decision).

The charges were dismissed because s. 134(1)(b) violated s. 121 of the Constitution Act, 1867. The court held that s. 121 prohibited all trade barriers between provinces, whether federal or provincial, tariff or non-tariff. The Comeau decision changed a Constitutional rule that had stood for ninety-six years. It has profound implications for provincial programs, policies and revenues, including those that the provinces have exempted from the new Canadian Free Trade Agreement. It is a decision of major concern to provincial officials.

Section 121 of the Constitution Act 1867 states 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." In 1920 in Gold Seal Ltd. v. Alberta (Attorney General) (1921), 62 S.C.R. 424, the Supreme Court of Canada (SCC) held that the intention of s. 121 was to prohibit tariff-type trade barriers only. The Gold Seal interpretation was applied in only three other final decisions, Atlantic Smoke Shops Ltd v Conlon, [1943] 4 DLR 81 (JCPC), the majority judgment in Murphy v CPR, [1958] SCR 626 and in Re Agricultural Products Marketing Act. Prior to R. v. Comeau, no one had successfully challenged the Gold Seal interpretation of s. 121.

Not surprisingly, the New Brunswick crown decided to appeal the Comeau decision. Under the Provincial Offences Procedure Act S.N.B. 1987, c. P-22.1 the Crown had the option of either appealing to the New Brunswick Court of Queen's Bench as of right, or, to the New Brunswick Court of appeal, with leave to appeal, on a question of law. The Crown chose the latter option but on October 19, 2016, following an oral hearing, Larlee, J.A. refused to grant leave to appeal. By then the Crown was out of time to appeal to the Court of Queen's Bench and M. Comeau refused to consent to appealing so out of time.

The Crown, again with M. Comeau's support, then sought an order of the SCC "granting leave to appeal the judgment of the New Brunswick Court of Appeal, dated October 19, 2016, denying leave to appeal the decision of the Provincial Court of New Brunswick, dated...