GERARD COMEAU THOUGHT HE HAD A RIGHT TO CHEAP BEER. He was wrong. The Supreme Court of Canada told him so in April 2018. Gerard Comeau’s loss was our gain.
The case had nothing whatever to do with cheap beer. It had everything to do with big business trying to weasel their way into our constitution. The Supreme Court saw through their ploy. The court ruling killed it dead.
Gerard Comeau wasn’t thinking about any of this in 2013 when he bought a load of beer in Quebec to bring back to his home in Tracadie, New Brunswick. He just wanted cheap beer. Problem was he had crossed the provincial border with more beer than the NB Liquor Control Act allowed. He was fined $292.50 for breaking that law.
Not exactly front page news—until the CCF (the Canadian Constitution Foundation) got involved.
Big business swoops in
The sharp eyes of these big business vultures spied a chance to buddy-up with a regular guy who just likes beer to advance their own agenda: an attack on the constitutional powers of governments in any and all forms. The CCF was happy to pay whatever it took to back Gerard.
They caught a break early on. A provincial court judge in the NB ruled Gerard had a case. He ruled the NB Liquor Control Act was “unconstitutional.” But his ruling did not stand.
Supreme court blocks ‘trade creep’
The Crown appealed to the Supreme Court. Canada’s top justices unequivocally rejected the New Brunswick court ruling. They ruled our Constitution Act, 1867 cannot be interpreted as “imposing an absolute free trade regime within Canada.” Nor, can the act be used to undermine the division of powers between federal and provincial governments.
The Court’s unanimous decision is a stunning setback for “trade creep”—the increasing dominance of trade considerations over more and more areas of government policy. It’s all part of a relentless big business effort to embed in our Canadian laws the restrictions on government contained in international free trade agreements.
This case was about much more than a “right” to cheap beer. It was a brazen attempt to import international trade agreement concepts into the Canadian constitution.
The perils of so-called ‘free trade’
Since the 1990s, these trade agreements have been less about lowering tariffs and more about redefining pretty much anything government does as a possible trade barrier. That way, environmental regulation, consumer protections, health and safety rules and publicly delivered services can be challenged in a legal context that gives priority to commercial interests.
Provincial governments intervened at the Supreme Court to say they were working toward eliminating interprovincial trade barriers through negotiation. They cited the recently signed CFTA (Canadian Free Trade Agreement) that provides for monetary penalties of up to $10 million and allows businesses to launch CFTA challenges against government legislation.
The Supreme Court decision also frees courts from second-guessing whether governments could have done something else that was more effective and less trade restrictive.
The Supreme Court did state that laws with the purpose of punishing other provinces (such as, Alberta’s recent legislation targeting B.C. for its opposition to the Kinder Morgan pipeline) could be judged to have the primary purpose of restricting trade and therefore be unconstitutional.
Must reject ‘unfettered trade as a supreme good’
Provinces intervened in the Comeau case with eloquent arguments on why the Court should not uphold the lower court Comeau decision:
Alberta stated Section 121 of our Constitution Act should not be interpreted in a way that would frustrate provincial capacity to support local industry and employment.
Ontario said Comeau’s argument would “constitutionalize a particular economic philosophy that views unfettered trade as a supreme good to be facilitated, and government regulation of goods as an evil to be minimized.”
Quebec said its margin of maneuver to legislate in the public interest would be greatly diminished.
B.C. warned that if all differences in provincial regulations and taxes were defined as a “non-tariff barrier,” this interpretation would be incompatible with both democracy and federalism and would violate “the right to decide differently.”
One would hope that the provinces would remember their words the next time they are asked by the federal government to give their consent to a free trade agreement that offends these democratic values.
This article was originally published by The Canadian Labour Institute.
Reprinted with permission for CALM Members use.