The True North, strong and monopolized

The Supreme Court’s decision in the case of Gérard Comeau, who in 2012 defied the New Brunswick Liquor Corporation by bringing back too many cases from a beer run to Quebec, is shot through with monopoly.

Monopoly in the decision, which was nine judges to zero. When a province defies a clear and simple declaration of the Constitution you’d think reasonable people might disagree on whether to let the provincial law stand. The provincial court judge whom the nine are over-ruling, New Brunswick’s Ronald LeBlanc, himself expressed “trepidation” in deciding against the liquor monopoly and for free trade. The Supremes suffer no similar self-doubt.

Monopoly in the process, which allows only the Supreme Court itself to overturn “stare decisis,” the rule of its own precedents. Except in very rare cases, the Court says, that’s not for lower courts to do. But what’s a lower-court judge to do if a defendant brings forward new evidence about the faulty basis for the precedent-setting decision, which in this case took place in 1921?

Monopoly over history. The Court seems to chide Judge LeBlanc for having heeded the expert testimony of historians about what the Fathers of Confederation meant when they and their British legal advisers decided the final wording of Section 121 of the Constitution would 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.” The capitalizations are anachronistic but the meaning seems plain enough and very expansive. Tsk-tsk, the Court writes: “To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert.”

Monopoly over violence. We all agree that the police power should be held as a monopoly by the state. But in a two-day self-initiated sting in 2012 RCMP officers in Quebec identified New Brunswick cars parked outside Quebec beer and liquor retailers and, when they observed supposedly free Canadian citizens, heritors of one of the strongest, proudest human rights regimes in the world, loading up too much beer or liquor, radioed ahead to their New Brunswick counterparts to stop and fine them on their crossing over the J. C. Van Horne Bridge — a sort of Checkpoint Charlie of Canadian interprovincial trade. Judge LeBlanc, noting that two-thirds of the license plates in one of the Quebec stores were from New Brunswick, concluded this was a “regularlyoccurring offence, which is not likely a high priority in terms of crime prevention.”

Monopoly over alcohol. It’s 2018. We’re about to legalize marijuana. The youth wing of the governing federal party thinks we should legalize possession of small amounts of any drug. Yet one of the country’s four founding provinces still makes it a punishable offence to “have or keep liquor not purchased from” its liquor corporation. True, the proscription isn’t absolute. “Liquor not in excess of one bottle or beer not in excess of 12 pints” is allowed, so long as purchased “from a liquor commission, board or similar body in any province of territory of Canada.” But here we are in the 21st century and New Brunswickers apparently can’t be trusted to either run a liquor business or buy more than a single bottle or a case of 12 outside the state’s embrace.

Though it largely disdains historical analysis, the Supreme Court notes that the Fathers of Confederation both favoured the free movement of goods within Canada, but also established a federal state in which provinces would have their own legislative authority. When two fundamental principles conflict, the obvious recourse is to seek a workable compromise. World Trade Organization dispute settlement panels do this all the time. Countries’ rights to regulate this or that activity are honoured but ways are sought for them to regulate in a “least trade-distorting” way. Alcohol is a potentially harmful drug. The people of New Brunswick may well have an interest in controlling its use. But completely banning out-of-province purchases? There must be other, less drastic tools. Yet the Supreme Court ignores such a practical, reasonable, balanced and balancing approach.

As Judge LeBlanc wrote in his 2016 decision: “The 1860s” — when the Fathers of Confederation were putting this country together — “were the high-water mark in the belief in free enterprise, in the idea that government should allow the private sector to operate with minimal regulation from government… The strong and harmonious economic union (they envisaged) had to have been based on free trade, not on punishing internal non-tariff trade barriers…”

And now we have constitutional law that allows complete bans on interprovincial commerce in as many items as provinces can offer plausible rationales for. The Fathers would be shocked.