An upcoming case before the Supreme Court of Canada could force provincial governments to rethink their proposed cannabis regulations.
In a matter of weeks, the Supreme Court will begin hearing arguments in the case of Gerard Comeau, a New Brunswick man fighting against provincial liquor monopolies. If the justices rules in Comeau’s favor, experts say lawsuits against government-run cannabis corporations are sure to follow.
Comeau was arrested in 2012 after attempting to bring alcohol from Quebec into New Brunswick. He was fined for violating New Brunswick law, which restricts the amount of alcohol that can be brought into the province from other parts of the country.
Comeau contested the ticket on the basis of Sec. 121 of the Constitution Act, 1867, which states that all Canadian goods can be admitted freely across the country. Comeau won, and his case is now headed to the Supreme Court.
Whether cannabis will be mentioned in the Supreme Court’s ruling is yet unknown. However, several legal and trade experts consulted by The Canadian Press say that if Comeau wins, there will most certainly be changes in how nationwide recreational cannabis legalization rolls out across the country on July 1, 2018.
“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,” said Brian Lee Crowley, managing director of the Ottawa think tank, Macdonald-Laurier Institute.
“[Comeau winning] would mean big changes — a more free and fair cannabis industry,” added Jack Lloyd, one of the lawyers representing cannabis activists who received intervener status in the Supreme Court case.
Lloyd believes the black market will continue to thrive if free trade isn't applied to cannabis, as Canadians will continue to purchase cannabis from illegal producers if they can’t find the products they like in an accessible way in their home province.
“The existing illegal industry will thrive if these provincial restrictions (remain) onerous,” he said.
Andrew Smith of the University of Liverpool Management School was an expert witness in the Comeau case. He said that if the Supreme Court sides with Comeau, companies will certainly try and use the judicial precedent to fight cannabis monopolies.
He added, however, that he doesn’t see this happening in practice. He explained that Australia’s constitution has a free-trade clause similar to Canada and the European Union is also governed by free trade principles, but this doesn’t apply to recreational drugs.
“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, adding that “the principle of the single market doesn’t extend to such controversial products” in Australia or the EU.
Comeau’s case heads to the Supreme Court on Dec. 6.
h/t Toronto Star