Will a Supreme Court of Canada case dealing with interprovincial alcohol import limits have implications for provinces that plan to monopolize legal cannabis? Jodie Emery thinks it might.
In 2012, Gerard Comeau was stopped by RCMP and fined almost $300 for carrying 14 cases of beer and three bottles of liquor from Quebec to his home province of New Brunswick. That amount exceeded the personal import limit of 12 pints of beer or one bottle of liquor set by New Brunswick’s Liquor Control Act.
Last year, New Brunswick provincial court Judge Ronald LeBlanc ruled that the import limit was unconsitutional and acquitted Comeau based on Section 121 of the 1867 Constitution Act, which says that goods from any province ‘shall…be admitted free into each of the other provinces.’
Provincial prosecutors have taken their appeal to the highest court in Canada and say that if the acquittal is upheld, it could ‘redesign Canadian federalism’ as we know it.
When the Canadian Constitution Foundation contacted Emery’s husband, Marc, asking for his support in the cross-border beer case a few months ago, they wondered how the appeal’s outcome might set legal precedent for interprovincial import and export of other products, like cannabis.
Lawyers said there was a possibility that the case could be relevant to companies like the Emerys’ own brand, Cannabis Culture—but it wasn’t until Ontario announced its plan to impose a monopoly on the province’s legal marijuana market that the idea of intervening in the case began to pick up steam.
‘It raised the eyebrows of our lawyers, who said that, in general, it [Ontario’s plan] didn’t seem fair,’ Jodie Emery told the Straight by phone on Monday.
On September 8, Ontario ministers made the announcement that the province would create a provincial cannabis control board that would oversee the retail sale of cannabis through 150 government-operated storefronts by 2020, with 40 shops set to open by July 2018.
Illicit-dispensary operators were told during the announcement that they would be shut down in the months leading up to legalization. The plan for a government monopoly has received widespread criticism.
Last month, Jodie Emery signed an affidavit—regarding her concerns about the legal and financial ramifications of the Supreme Court appeal—on behalf of Cannabis Culture, which supports the movement of products between provinces free of restrictions or tariffs.
Cannabis Culture has applied to be an intervenor in the case on behalf of 28 other corporations and warns in its application that if restrictions on participation in the legal market are too strict, the illicit market will thrive.
Speaking specifically to Ontario’s proposed distribution framework, Emery said that exisiting businesses would suffer under such a controlled approach.
Not only that, she said, but those interested in starting new business in the industry would be dettered from participating.
‘If the government is in control of the market, then a lot of the opportunities are lost,’ she said.
She also argued that Canadians favour free-trade agreements and that other provinces still deciding on a framework should consider the potential consequences of implementing regulations that are ‘too prohibitive’.
In the event that Comeau’s acquittal is upheld, the argument could be made that Ontario’s proposed monopoly on cannabis is ‘unconstitutional’, she said. This would give entities like Cannabis Culture an opportunity to file an action against provinces like Ontario.
For now, Emery awaits the Crown’s decision on whether or not to grant Cannabis Culture intervenor status. More than a dozen other organizations have also filed requests to intervene in the case, including the Alberta Small Brewers Association, Dairy Farmers of Canada, Consumers Council of Canada, and Fed Ex.
The Crown isn’t required to decide on applications by a certain date, but the Supreme Court hearing is scheduled for December 5 and 6.
Jodie Emery is currently on bail after being arrested and charged with conspiracy to commit an indictable offence, trafficking, possession, and two counts of possession of proceeds of crime in connection with Project Gator.
Others charged in connection include her husband, Marc, as well as Chris Goodwin, Erin Goodwin, and Britney Anne Guerra.