The Supreme Court goes full post-truth

Possibly the Supreme Court could have picked a worse time to rule in the “case of beer” that Canada is not a real country when it comes to interprovincial trade. It is hard to see how. But it is impossible to imagine it making a worse ruling. R. vs. Comeau is legally wrong, historically flawed, metaphysically rotten and destructive. It is post-truth jurisprudence.

There isn’t much to add to its specific legal flaws, which have been covered by my National Post colleagues, especially Andrew Coyne. However, I would reiterate a point I made eight years ago in a Macdonald-Laurier Institute paper co-authored with Brian Lee Crowley and the late Robert Knox, namely that Canada’s founders explicitly intended to create internal free trade … and did.

The Constitutional provision Section 121 is as clear as can be: “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.” As the legislative history and context emphasize, if they had only meant “free of tariffs” they would have said so. Instead, in a splendid speech on Feb. 8, 1865, George Brown said the idea of Confederation was to “throw down all barriers between the provinces — to make a citizen of one, citizen of the whole.”

In throwing them back up this perverse decision strikes a most untimely blow at our common citizenship as well as our prosperity and rule of law. The court upheld the obnoxious 1921 Gold Seal ruling with a nod to respecting precedent as crucial to the rule of law, even though, as Coyne noted, it has always been ready to jettison precedent whenever it wants, in the name, essentially, of social engineering.

R. vs. Comeau is our parting shot from Chief Justice Beverley McLachlin, who infamously said her job as a judge was “to think about what’s best for Canadian society on this particular problem that’s before us.” As in: now you see the rule of law, now you don’t. Or rather, you consistently see the phantom not the substance.

The ruling is especially illtimed given that B.C. and Alberta are at loggerheads over a pipeline. If New Brunswick can ban beer from Quebec to prevent widespread drunkenness or whatever the feeble excuse is, surely B.C. can ban diluted bitumen from Alberta to protect the coast, which would actually be a far more honest explanation than New Brunswick’s threadbare protectionist cash grab.

Or not. With this Supreme Court (as Coyne also noted on Twitter), there is no assurance of consistency. There is no reason to suppose if the Supreme Court disliked the outcome of a B.C. law, or an Alberta law excluding B.C. produce, it would give any but the most sneeringly short shrift to the precedent it itself just set.

Which is why I call the ruling post-truth jurisprudence. The idea of gazing haughtily clean through the plain text of our Constitution, its legal context and the ringing declarations of our founders about the purpose of Confederation would please the most ardent literary “deconstructionist” professor who insists there is no text, author, audience or truth. Or the most obnoxious politician untethered to facts.

Of course the post-truth world is ultimately uninhabitable. Even that deconstructionist professor expects her employment contract, and her parking pass, to be honoured to the letter. And a “post-truth” politician, whether named Donald or not, expects his fanciful reconstructions of reality to be mistaken for solid fact by the audience, which cannot happen if the audience believes there are no solid facts.

More generally, any theory that requires us to accept as true the non-existence of truth is a classic Cretansaying-all-Cretans-are-liars self-contradiction. And as the 20th century showed, when reality is banished in theory, what remains in practice is a raw contest of wills.

No less by our Supreme Court, whose “living tree” interpretation severs our constitution’s roots and topples its trunk while expecting branches and fruit to hang in mid-air. It insists we obey the rulings it conjures from nothing by saying “let there be law,” which in turn requires that we understand its rulings. Why? And how? But it is not hypocrisy. It is post-modernism reaching the bench.

As C. S. Lewis observed, if everything can be seen through, then nothing can be seen. If Superman can look through walls, why is he able to see the things or people behind the walls, rather than see through them as well? We were just told our Superjudges’ X-ray vision can penetrate Section 121 to reveal its opposite: that articles from any province shall not be admitted free into the others. Yet this ruling, too, will be vaporized by the same basilisk stare whenever the mighty judges somehow perceive new social needs.

GEORGE BROWN SAID THE IDEA OF CONFEDERATION WAS TO ‘THROW DOWN ALL BARRIERS BETWEEN THE PROVINCES.’