Home News Articles How a case on a Quebec booze run could improve commerce and liberty

How a case on a Quebec booze run could improve commerce and liberty

By | on Sep 18 2015

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When I saw the article last week about the upcoming trial of a New Brunswick man, Gerard Comeau, charged with buying booze in Quebec and driving it to his home province, one thought went through my mind: What century are we living in?

I’ve always marvelled at the way legal restrictions on alcohol stemming from a prohibition mindset have hung on so tenaciously, even as the rest of society has long since recognized their counterproductive nature and moved on.

Government probably would have moved on too if this were really a story about promoting the responsible consumption of alcohol.

In reality, it’s a story about provincial governments generating revenue for themselves, and using their legal powers to guard that revenue from competition from other provinces. From a protectionist perspective, it’s no wonder New Brunswick wants to stop its citizens from alcohol shopping in Quebec: The stuff is often almost half the price in Quebec supermarkets, compared to the prices in government-run NB Liquor stores.

There’s also the matter of choice: While there are at least 80 microbrews in Quebec, only two of them are carried by NB Liquor, according to their online product search. Less dramatically, but still importantly, Quebec stores offer far more options when it comes to packaging and combos for mainstream beers. So, for example, on Mr. Comeau’s shopping trip to Quebec, he picked up two 24-bottle cases of Molson M, a beer NB Liquor apparently stocks only by the can.

Mr. Comeau is just a guy who wanted a reasonable price and selection when stocking up on some beer and spirits for personal use. But his case could have enormous implications for interprovincial trade in Canada. Mr. Comeau is arguing that New Brunswick’s Liquor Control Act — specifically its ban on bringing in more than a bottle of liquor or 12 pints of beer from out-of-province — conflicts with Section 121 of the Constitution Act, 1867.

Is he right? Read the relevant provision for yourself and see what you think: “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.”

It would be a no-brainer that this constitutional protection would invalidate laws, like New Brunswick’s, that block interprovincial trade in alcohol, if not for one thing: a 1921 Supreme Court of Canada decision that was a hangover from the prohibition era. In Gold Seal Ltd. v. Alberta (Attorney-General), the court interpreted Section 121 as a narrow restriction on the imposition of duties on goods being shipped across provinces, rather than a more robust protection of the free interprovincial flow of goods.

In other words, the court thought Section 121 could be used to strike down laws that taxed out-of-province alcohol, but not laws that simply banned or limited it.

According to Toronto lawyer Ian Blue, who has written extensively and persuasively on the subject, that 1921 reading of Section 121 is long overdue for a reappraisal. For one thing, the wording and legislative history of the Constitution Act, 1867 both point toward a broader reading of Section 121’s protections. (Mr. Blue’s papers on the subject are well worth reading and easily found through a Google search of his name.)

The thing is, though Mr. Blue’s well-reasoned and well-researched arguments have been out there for a long time, there has never been a case taken to the Supreme Court to test them. That’s why Mr. Comeau’s quick trip to pick up some booze in Quebec – and the government’s decision to charge him for it – could end up being a very big deal indeed. It could be the chance many freedom lovers have been waiting for to actualize the Constitution’s potential for protecting free interprovincial commerce and economic liberty. I recognize that it’s a long way from a Campbellton, N.B., courtroom to the Supreme Court of Canada, but bigger precedents have been set from smaller beginnings.

At heart, the operative question here is: What harm was Mr. Comeau doing anyone when he took beer from a Quebec supermarket to his own New Brunswick home? Even if one doesn’t give a darn about the finer points of Supreme Court jurisprudence, we shouldn’t be charging people with an offence until we’re satisfied with the answer.

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