Heads the province wins, tails you lose. This appears to be the response of the Gallant government to the recent court decision declaring as 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 New Brunswick’s prosecutions office continues to threaten action against residents who enter New Brunswick with more alcohol than is permitted by the province’s liquor regulations.
Tracadie resident Gérard Comeau was charged by the RCMP in 2012 and fined $292 for illegally bringing 14 cases of beer and three bottles of liquor into New Brunswick from a Quebec. 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. So consumers are forced to purchase from the New Brunswick Liquor Corp., a government-owned monopoly that charges almost double the price for beer as Quebec.
That New Brunswick consumers find beer savings in high-tax and equally protectionist Quebec speaks to the need to remove inter-provincial tariffs in Canada. This case demonstrates how barriers to the free movement of goods increase prices across the country. Greater competition among the provinces and territories would be an economic boon for consumers. We have free trade with the United States and the federal government is set to ratify a massive free trade agreement with Europe. Shouldn’t Canadians similarly be able to purchase goods and services – including booze – anywhere within our own country?
Premier Brian Gallant says he favours more open trade between provinces. 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. Public Safety Minister Stephen Horsman said he believes the law remains in force despite the judge’s ruling. It is becoming clear the New Brunswick government won’t give up control over consumer choice easily.
According to Luc Labonté, director of Public Prosecutions Services, the law restricting liquor imports remains in effect because “in theory” the court ruling applies only to 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 may invalidate a law. Consequently, the decision from a provincial court is a persuasive precedent but not legally binding.
But the beer ruling is far from meaningless. Prosecutors should take into account the judge’s reasoning, since it will influence other courts that consider the issue. This puts police and Crown prosecutors in a difficult position: should they enforce a law that has been declared invalid?
Generally, the Crown prosecutes only when there is a reasonable likelihood of a conviction. LeBlanc’s ruling makes a conviction unlikely since people charged will plead not guilty and a trial will rely on the newly established precedent.
The Canadian Constitution Foundation intervened in the case to support Comeau. 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.” She said charging other New Brunswick cross-border beer consumers would be a waste of time and money.
But enforcement that wastes time and money could be exactly what the province intends.
Absent an appeal, the province might well expect to lose future similar cases but proceed nonetheless. The punishment for consumers wouldn’t be a conviction, but a lengthy and costly court process to challenge the fine. While some might correctly believe they have the constitutional right, few will want to fight a charge for years. Most people will simply buy overpriced alcohol in New Brunswick.
This should not be how government responds to a ruling that expands consumer choice and is an important step towards affirming Canada’s internal trade market.
If the province fails to clarify this legal uncertainty, the federal government should refer the case directly to the Supreme Court. The provinces should understand the economic rights granted to all Canadians under our Constitution.
John Williamson is a former Member of Parliament and past National Director of the Canadian Taxpayers Federation.