National Post View: The Supreme Court offers its foolish beer decision to a foolish nation

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The Supreme Court’s decision this week in the “Free the Beer” case could drive you to drink. Not that you’ll have many beverage options to choose from. At least not Canadian ones.

The case, R. vs. Comeau, related to charges laid against Gerard Comeau, a New Brunswick man who would drive to a nearby Quebec store to buy beer for less than it cost at home. Comeau was pulled over by police in New Brunswick and charged with violating a local law, the Liquor Control Act, which restricts importation of alcohol from another jurisdiction. Comeau contended that the law was invalid because the Constitution struck down barriers to free trade within the Canadian federation from the moment Canada was born in 1867. A plain reading of the relevant section of the Constitution, Section 121, certainly seems to support that view: “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.”

To the countless constitutional scholars and lawyers who came to Comeau’s defence, that section certainly seemed clear enough on plain reading. But our country’s most elite judicial minds have no time for plain readings. The Supreme Court’s ruling, released Thursday, sided with New Brunswick and upheld the province’s liquor importation restrictions. Canada is a federation, not a country, the court reiterated — as if we’d forgotten — and the individual provinces have the right to establish trade barriers if they are connected to some claimed reason or other and are not solely protectionist, because naked protectionism would, the Supremes say, violate S. 121. In New Brunswick’s case, the province claimed the Liquor Control Act has nothing to do with ensuring residents pay their taxes locally, but was instead over the right to regulate the sale (and use) of alcohol within its borders — for such matters as health and safety, you see. Uh-huh. Now pull the other one.

The legalities of the decision have been well picked apart elsewhere and won’t be dwelled upon here. But they are sweeping in their impact. The ruling will allow a province to establish virtually any desired barrier to competing products offered by a Canadian company in another province so long as it goes through the token effort of establishing some shoddy rationale that sounds slightly less obnoxious than overt protectionism. And this was the Supreme Court ruling, so we’re stuck with this disgraceful policy. It will likely be decades before Canada’s free traders find a way to manage a new challenge to this legal and political absurdity.

And make no mistake: it is absurd. It is easier for a Canadian business to trade with the United States and the European Union than it is to trade with the province or territory next door. This is more than just a political and legal absurdity. Canada is in most ways an integrated, functional sovereign country, and certainly one in the eyes of its citizens. But it is Balkanized into discrete, competing economic units that impose real costs on Canadian consumers. As columnist Terence Corcoran wrote in Friday’s edition of the National Post, Canada’s interprovincial trade barrier regime is estimated by Statistics Canada to be equivalent to tariffs of almost seven per cent on goods and services traded within Canada. That necessarily sets our economic competitiveness and productivity yet further behind other countries where goods flow unhindered between major cities and regions. The Comeau case was about booze, but the significance is massive. Canada’s constitutional framers clearly sought to build an economic unit. More than 150 years later, we’ve yet to achieve that, and show no signs of making any meaningful progress.

No help is coming from the courts, clearly. But it’s a failure of our political leaders that such a vital question was forced to go to a Supreme Court where outré decisions are becoming orthodoxy. Canadian politicians too often rely on judgments to save them having to lead and make decisions. It’s an appalling habit that needs breaking, not least because, as this week’s ruling shows, the courts often come up with rulings that harm the welfare of the country.

That brings us to what is perhaps the most depressing element of all of this: if there is hope, it rests with the provinces. And some faint hope it is.

The federal government can pressure and cajole the provinces to drop their own barriers. It’s been tried. But this is fundamentally a provincial issue: as the Supreme Court has reaffirmed, the provinces do, in our federation, have broad powers, and are under no legal requirement to play nicely with their fellow Canadian provinces. We’re seeing that now in all its ugly pettiness in the B.C. NDP government’s attempts to block energy exports from Alberta all because it’s desperate to hold on to a power-sharing political deal with environmental extremists. The incentives for provincial politics do not naturally align with the national interest: selfishness more often prevails.

Only the voters, in the end, can really pressure their leaders into deciding that the protection of pet sectors, provincial monopolies and tax barriers are less important than building a richer, stronger, united Canada. If it takes a spat over beer and wine to get said voters motivated, that will do. But until and unless a popular movement pushes our premiers into acting like Canadians first, this week’s Supreme Court ruling, as frustrating as it is, is simply a confirmation of the reality of economic life in the Canadian federation.