‘Ottawa’ Why New Brunswick is Vowing to Keep Busting Anyone Importing Beer, Even After Judge Said it’s Legal
Heads the province wins, tails you lose. This appears to be the response of the Gallant government to the recent court decision declaring unconstitutional New Brunswick’s longstanding restrictions on bringing alcohol for personal consumption into the province. The government has until the end of the month to appeal Provincial Court Judge Ronald LeBlanc’s ruling that the law violates the Constitution’s free-trade provisions by blocking the flow of goods within Canada. But already New Brunswick’s Public Prosecutions Office is — despite the court ruling — threatening legal action against residents that enter New Brunswick with more alcohol than is permitted by the provincial government’s liquor regulations.
New Brunswick resident Gérard Comeau was charged by the RCMP in 2012 and fined $295 for illegally bringing in 14 cases of beer and three bottles of liquor from a Quebec border town into his home province. Under the New Brunswick Liquor Control Act, it is a crime to purchase more than one bottle of liquor or wine or the equivalent of 12 pints of beer from retailers outside of the province. Consumers are instead forced to purchase spirits from the New Brunswick Liquor Corp., a government-owned monopoly that charges double the price for beer as Quebec.
That New Brunswick consumers can still find some reasonable beer savings in Quebec, with its own high taxes and protectionism, speaks to the need to remove interprovincial tariff barriers in Canada. This case demonstrates how barriers to the free movement of goods increase prices for Canadian families and businesses from one end of the country to the other.
New Brunswick’s premier, Brian Gallant, says he favours more open trade between provinces. But if that is true, he should amend the law and allow people to buy alcohol from anywhere in Canada. Instead, he has not ruled out an appeal. He left his public safety minister, Stephen Horsman, to explain the government’s position. After the ruling, Horsman said he believes the law remains in force despite the judge’s decision. It is becoming clear the provincial government won’t give up control over consumer choice easily.
According to Luc Labonté, director of the province’s Public Prosecutions Services, the law restricting liquor imports remains in effect because “in theory” the court ruling applies only to the person who brought the case — Mr. Comeau. “The Provincial Court does not have the jurisdiction to strike down a law in a general way as it applies to all citizens,” he said.
The Supreme Court of Canada has stated only superior courts — not provincial courts — can invalidate a law. Consequently, Judge LeBlanc’s decision is not a binding legal precedent, but it is a persuasive precedent. And it puts police and the Crown in a difficult position over whether or not to enforce a law that has been declared invalid.
It is generally understood in the legal community that the Crown should prosecute only when there is a reasonable likelihood of a conviction. Judge LeBlanc’s ruling, however, makes any conviction under New Brunswick’s law unlikely. After the Comeau decision, anyone charged with the offence of importing alcohol will plead “not guilty,” knowing his or her trial will rely on the newly established precedent.
Few will have Comeau’s stomach to fight a charge for several years
The Canadian Constitution Foundation supported Mr. Comeau in the beer case. The group’s executive director Marni Soupcoff explained, “It’s true that ‘in theory’ the law remains on the books, but it would be ridiculous for New Brunswick prosecutors to go to court to enforce it now that one of their own judges has plainly assessed it as unconstitutional.” Ms. Soupcoff believes charging other New Brunswick cross-border beer consumers would be a waste of time and money.
But costly enforcement that wastes time and money could be exactly what the province intends.
Absent an appeal, the province and Crown prosecutors might well expect to lose future “booze-buying” cases but proceed to court nonetheless. The punishment for New Brunswick consumers wouldn’t be the conviction, but the lengthy and costly court process itself. While some might continue buying from Quebec believing (correctly, I would argue) they have the constitutional right to engage in cross-border trade, few will have Mr. Comeau’s stomach to fight a charge for several years. Most people will, quite sensibly, keep suffering overpriced alcohol in New Brunswick rather than risk having to fight for their rights.
This should not be how any government responds to a ruling that expands consumer choice and legally moves us toward affirming Canada’s common internal trade market. We expect provincial governments to provide police, fire and safety services, maintain public infrastructure and deliver important social programs. We do not need our government telling Canadians they cannot buy liquor from elsewhere in Canada or acting as a costly and meddlesome intermediary between buyers and sellers.
If the government of New Brunswick fails to clarify this legal uncertainty the federal government should refer the case directly to the Supreme Court to break the deadlock. If necessary, provincial governments must be made to understand the economic rights granted to all Canadians under our Constitution.
John Williamson is vice president of research at the Atlantic Institute for Market Studies (AIMS.ca)