Ian Blue, a partner at Cassels Brock & Blackwell LLP, has issued a challenge to the constitutionality of legislation that forbids importation of liquor into a province unless it is sold to the local liquor board or commission. The legislation is, curiously, federal, as we noted in a post last September.
Section 3(1) of the Importation of Intoxicating Liquors Act (IILA), passed in 1928, forbids the interprovincial movement of alcohol (and, presumably, other "intoxicating liquors") except as part of a transaction involving a provincial agency. Yet, Blue argues, this provision is at odds with s.121 of the Constitution Act, 1867 that provides for free interprovincial trade:
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.
You can read a brisk version of Blue's argument in the recent Wines and Vines News and a longer, thorough version in his recent article, "On the Rocks? Section 121 of the Constitution Act, 1867, and the Constitutionality of the Importation of Intoxicating Liquors Act," (2009) 35 Advocates Quarterly 306 [PDF].
One stumbling block to any challenge is Gold Seal Ltd. v. Alberta (Attorney General) (1921), 62 S.C.R. 424, finding a similar piece of federal legislation valid. Blue argues that this and other difficult precedents can and should be overruled by the Supreme Court. But what caught my eye is his bold statement in the Wines and Vines article:
What in effect happened was two judges of the Supreme Court of Canada conspired with a party that had an interest in the case to screw the applicant . . . If that comes out — and it will come out in a paper I'm writing — it means that the Gold Seal interpretation of 121 is totally unreliable.
The paper he refers to is planned for publication in the Advocates Quarterly in the new year.
