Another court decision that damages Canada and is caused by flawed and illogical Constitutional ‘interpretations’ from our politicized and unaccountable Supreme Court of Canada:

“Enter the Supreme Court of Canada with a decision that eviscerates any real hope that Canada will ever have what real nations such as Australia and the United States enjoy — legal protection of internal free trade.

“The case before the court, widely and all-too glibly covered as a “free our beer” border conflict between New Brunswick and Quebec, has always been about the much larger issue of whether Canada’s ‘Constitution Act’, formerly the British North America Act, in any way guarantees free trade between the provinces.

“Canada’s provinces already impose thousands of protectionist measures. Now nothing can stop them. As the Supreme Court unanimously decided Thursday, existing constitutional references to free trade within Canada are meaningless words with narrow application, so narrow that they might as well not exist.

“The case began when the RCMP arrested Gerard Comeau, now a 64-year-old New Brunswicker, for transporting beer illegally from Quebec into his home province. To fight the case, Comeau was joined by financial backers and a top Toronto lawyer, Ian Blue, who has long argued that Canadians have been living under a legal regime that ignores a constitutional guarantee of internal free trade.

“The words in the Constitution may seem clear to mere mortals. The 1867 BNA Act, Section 121, says:

All articles of the growth, produce, or manufacture of any of the provinces shall, from and after the union, be admitted free into each of the other provinces.”

“But the Supreme Court of Canada, observing through the prism of legal, political and judicial protectionist complexity rather than the eyes of mere mortals, says the words “admitted free” are “ambiguous” or “arguably ambiguous{?}. They do not mean, said the court, that Canadians can go to another province and buy beer under the assumption that the beer can be “admitted free” back to their home province.

The provinces, said the court, have the authority under another part of the ‘BNA Act’, ‘Section 92’, to impose regulations within their jurisdictions — even when those restrictions are a breach of the “admitted free” rule. Admitted free, said the court, means a province cannot impose a tariff or a “tariff-like” measure, but it can impose tariff-like measures if the objective is to achieve some social or other policy objectives.

{Enabled by Section 15(2) of the flawed Charter, which ensures that any and all social engineering overrules the rest of the Constitution – at least in our politicized Supreme Court’s eyes:
The Strange Case of Canadian ‘Legal Equality’ (Charter Section 15):
“The political — and therefore, ‘flexible’ — tool that is subsection (2) means that the Constitutional Principle of Section 15(1) cannot really exist as a ‘Principle’, and merely serves as an inspirational introduction to the court-driven social engineering enabled by subsection (2).
“As a result, legal equality of individual Canadian citizens has become a thing of the past…”}

“In the New Brunswick beer case, said the court, the alleged policy objective of the “scheme” is not to restrict trade across a provincial boundary,

but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick”.

“The New Brunswick law, it added, acts “like a tariff” contrary to the ‘BNA Act’s free trade clause, but the tariff is justified because it is a social policy {Anything ‘socialist’ is enabled by this subversive clause…} and is not intended to impede trade {? Utter nonsense…}.

“With all due respect, this is economic baloney {!}. In current circumstances, the only real reason to restrict beer and liquor imports and arrest people who break the law is to protect the monopoly revenues of the ‘New Brunswick Liquor Corporation’. Even the court acknowledges that the objective is to

more generally prevent defined quantities of non-Corporation liquor from entering the liquor supply within New Brunswick’s borders”.

“That’s raw trade protectionism {!}. In 2016, ‘N.B. Liquor’ reported revenues of $410 million, of which 40% — or $160 million — was paid to the government as a monopoly profit. Across Canada, the combined government monopoly plunder of alcohol consumers exceeds $10 billion. In Ontario, the LCBO reported 2016-17 revenue of $5.8 billion, with 34%, or nearly $2 billion, going to the province.

“The N.B. alcohol import restrictions, along with similar impositions by provinces across Canada, are straight trade protectionist measures aimed at maintaining the provincial liquor monopoly and its revenues. How can the justices of the Supreme Court of Canada claim otherwise with unanimous straight faces? {!}

“Thursday’s decision is more than a beer story. In fact, beer is a distraction. Of the 17,000 words of text in the decision, beer appears only twice and liquor only 10 times. The majority of the decision, 12,000 words, is directed at the core arguments raised by Comeau’s legal team and other interveners. The court’s objective was clearly to demolish any lingering thought that the free trade reference in ‘Section 121’ of the ‘BNA Act’ should continue to have any meaning.

“Especially targeted by the court were the arguments raised by Ian Blue of ‘Gardiner Roberts LLP’ in Toronto. In a 2011 paper for the ‘MacDonald Laurier Institute’, Blue summarized his legal case for Free Trade within Canada.

“Blue’s argument is that the obliteration of ‘Section 121’ came about in large part as a result of a flawed and erroneous Supreme Court decision in 1921 {!}. That case, known as ‘Gold Seal’, involved legal moves by Ottawa and the provinces to impose temperance on Canada. The 2018 court bulldozed through these arguments and chose instead to vigorously enforce the status quo: interprovincial trade barriers are good and desirable, regardless of the Constitution.

“In an interview Thursday, Blue said the Comeau decision effectively means that

any provincial program that interferes with interprovincial trade is OK if it is part of a broader provincial program”.

“Obviously, adds Blue,

you can see that there is no provincial trade barrier that cannot be dressed up in the clothes of a broader provincial program”…

“In other words, Canada’s interprovincial trade barrier regime — estimated by Statistics Canada to be equivalent to tariffs of almost seven per cent on goods and services traded within Canada — has now been legally entrenched by the Supreme Court. Another study estimated that Canada could gain between $50 billion and $130 billion in GDP by removing such barriers.

“With the Comeau decision, balkanizing trends already dominating Canadian politics will continue, even escalate. With ‘Section 121’ out of the way, the provinces have less reason to push for free trade within Canada. Block that pipeline, stop that oil shipment, seize that beer.”

–‘It’s not just beer. Any goods could get snared under court’s protectionist ruling’,
Terence Corcoran, Financial Post, April 19, 2018

COMMENT: “Where are the learned minds in the SCoC? How can “admitted free” be ambiguous? Just a bunch of loonies making it up as they plod along. The SCoC is getting loonier by the minute and trying to outdo its stupidity on each evolution of law.”
“This is not the only decision that brings the quality of the SCOC into question. This latest seems more rooted in politics than law. The Constitution seems pretty unambiguous about what the founding fathers envisioned for Canada — a common market.”

Published by Constitution Canada

Rewriting the Constitution of Canada

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