R v Comeau

Comeau, a New Brunswick resident, bought beer in Quebec and brought it home, in violation of NB's Liquor Control Act. He challenged the law under s.121 (the "free trade clause"). The SCC held that s.121 prohibits tariff-like barriers but not non-tariff regulatory schemes whose primary purpose is something other than trade restriction.

Comeau was caught at the Quebec/NB border with substantially more alcohol than the NB Act allows residents to import. He was charged. He invoked s.121.

Does s.121 prohibit non-tariff barriers like NB's import restriction?

No — conviction upheld. Section 121 prohibits tariff-like barriers; non-tariff regulatory schemes are constitutional even with incidental trade effects.

Section 121 prohibits laws whose primary purpose is to impede trade across provincial boundaries. A law whose primary purpose is something other (e.g. public health, liquor regulation) does not violate s.121 even if it has incidental trade effects.

The Court analysed the historical context (Confederation as economic union) and the doctrinal trajectory through Gold Seal (1921). The framers' purpose was to prevent tariff-like barriers — customs duties at provincial borders. A broader reading would convert s.121 into a general anti-regulation clause, paralysing legitimate provincial competence.

Disappointed those hoping for a Canadian internal-market doctrine akin to the EU Single Market or US Commerce Clause. Confirmed wide provincial regulatory space. Triggered the federal Internal Trade Secretariat work and the Canadian Free Trade Agreement (2017) framework.

R v Comeau, 2018 SCC 15, [2018] 1 SCR 342.

McLachlin CJ, Abella J, Moldaver J, Karakatsanis J, Wagner J, Gascon J, Côté J, Brown J, Rowe J