Canadian Supreme Court Fails To 'Free The Beer' In Controversial Ruling

Only in Canada would a man trying to buy beer spark debate across the country and a controversial ruling from the Supreme Court of Canada (SCC). All nine judges ruled unanimously that provinces and territories have a constitutional right to restrict the importation of goods across their borders.

It began in 2012 with a shopping trip. Gerard Comeau, a retired linesman from Tracadie, New Brunswick (NB) - about 160 kilometers north of Moncton - picked up several cases of beer in the province of Quebec and brought them home. Why? Simple: it’s cheaper. In Canada, the sale of alcohol is restricted by provincial governments. Things like where one can purchase alcohol, and how much it is taxed, is determined by the provincial government. New Brunswick charges more, so Comeau makes the drive to the neighboring province of Quebec two or three times a year to buy cheaper brewskis for him and his friends.

On one particular trip though, he was stopped by the Royal Canadian Mounted Police (RCMP) for this, citing that NB provincial law limits the amount of beer he could bring back to 12 pints; anything more is supposed to be bought at a provincial store. For those interested, Comeau had 14 cases of beer, two bottles of whiskey and one bottle of liqueur. They confiscated his alcohol and fined him $292.50, which he decided to fight in court. He believed that, as a Canadian citizen, he should be allowed to shop wherever he wants within the country.

Comeau’s defense centered on section 121 of the Constitution Act, which states:

“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.”

A previous case from 1921 Supreme Court case interpreted that to mean the products only had to be free from tariffs, not from other barriers such as limits on quantity. Comeau and others argued that decision offered too narrow an interpretation and had led to barriers of trade between provinces and territories. He won at first, where an NB judge sided with his argument and threw out the charges in 2016. Most provinces set limits on the amount of alcohol a person can bring back from another province for personal consumption - an added provision to the restrictive rules I talked about earlier - and joined the province of NB in escalating the case to the SCC.

Which brings us to last Thursday’s ruling.

In a decision that will forever be associated with the accompanying #FreeTheBeer social media campaign, the SCC backed the provincial governments in their legal right to restrict the importation of goods across borders within Canada - as long as the primary aim of the restriction is not to impede trade. Essentially, the SCC preserves the current trade regime, in which provinces have the power to enact and enforce laws to restrict any commerce if there is another overriding purpose. In this case, the desire to control the supply of alcohol within NB.

It wasn’t a huge surprise, but it is rather disappointing. Public opinion polls show overwhelming support for breaking down the barriers to Canadians buying liquor in one province and bringing it home to a different province. The SCC had the opportunity to modernize and liberalize trade within Canada, and they didn’t seize it - they chose to maintain the status quo.

The decision reveals a few dirty little secrets about Canadian constitutional law and the SCC itself. These include the enormity of discretion available at our top level of justice, the wildly varying degree to which commerce does or does not matter, and just how political our supposedly unbiased judges can be.

You see, the court doesn’t actually like making waves. As political science professor Emmett Macfarlane points out, even its ‘bold’ decisions about things like same-sex marriage or assisted dying were fully aware of what opinion the majority of the public held. But for the SCC to support public opinion in this case, they would have incurred the wrath of all 10 provinces across the country, and even upset the federal government by forcing them to actually act like an authority over the nation.

For many like myself, Section 121 of the Constitution is supposed to be a way to ensure free trade across the country. As it stands right now, it’s actually easier to ship and trade goods with a store in Michigan than it is to buy something in Quebec and bring it home. By choosing to uphold the status quo, the SCC avoided the broader ramifications of a decision that would deem many provincial laws as unconstitutional, and even more, would put many regulations - such as supply management or environmental controls - at risk. Many supporters of the ruling made the argument that provinces should be able to regulate and tax harmful products, like alcohol and cigarettes.

“Had this judgment gone the other way, it would have opened the floodgates to widespread interprovincial smuggling of cigarettes, alcohol and cannabis,” Rob Cunningham, a lawyer for the Canadian Cancer Society, said. “It is very important that provinces have the ability to have appropriate prices and taxes for products like tobacco and alcohol. This decreases consumption and has a public health benefit.”

With the July 1st deadline quickly approaching, many provincial governments have enacted protectionist regulations regarding the selling of legalized marijuana. The provinces and territories have been planning to get their piece of the profit pie, and this SCC ruling has alarmed many cannabis advocates, who believe provinces and territories will now be free to impose oppressive restrictions on weed despite its legalization on the national level.

It’s hard not to see the SCC’s decision as a carefully-weighted non-decision as well, considering the current fight between British Columbia (BC) and Alberta (AB) over the Kinder Morgan pipeline. AB has already threatened to ban BC wines and restrict gas exports, but doing so could be deemed both unconstitutional and unlawful. However, BC’s supposed legislative challenge on restricting the amount of bitumen oil allowed to flow through the proposed pipeline over environmental concerns would have to be given consideration in court now that provincial restrictions were reinforced.

There are a slew of other consequences if the SCC had ruled the other way, such as milk and egg prices across the provinces. I do not envy the legislative nightmare that would have resulted from a different outcome. But this ruling is frustrating for those of us looking for a freer passage of goods, services, and people within Canada - and by extension, the world.

We look like idiotic hypocrites trying to negotiate freer and fairer trade overseas when we can’t even buy a few bottles of booze from a neighboring province to bring home. This translates to Canada being little more than a collection of provincial and territorial fiefdoms, with a feeble federal government that can’t seem to get them to stop squabbling long enough to function as a unified country. The SCC could have required that measures discriminating against out-of-province goods must be necessary to achieve an important objective in order to be upheld, instead of broad legislation stating that alcohol is within a government’s jurisdiction and general welfare. That would then place the onus on provinces to prove prohibition on outside liquor is truly for the benefit of public health and safety - which would be difficult, since alcohol is one of the main ways provinces get money.

I’m not saying we should completely abolish provincial autonomy, but realistically, why can’t we find a way to create internal economic union as a nation?

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