Andrew Potter is an associate professor at the McGill Institute for the Study of Canada.
Is Canada a real country? Reading over the submissions in R. v. Comeau this week, you might well wonder. That's because one by one, the provinces, territories and even the federal government lined up on Wednesday to argue that Gerard Comeau was in the wrong, in 2012, when he took a quick trip across the border into Quebec from his home in Tracadie, N.B., to pick up some cheaper beer.
Caught in a sting and handed a nearly $300 ticket for smuggling contraband, Mr. Comeau demanded his day in court. He argued that the prohibition against transporting booze across provincial lines violated Section 121 of Canada's Constitution Act, 1867, which on any plain reading promises free trade of goods between the provinces. And, miracle of miracles, he won. And having won in Provincial Court, and with the Court Of Appeal punting it upstairs, he's been dragged to the Supreme Court of Canada to argue his case.
And his case, in a nutshell, is pretty compelling. As he put it in the legalese of the common man after his victory in 2016:
"The way I look at it, I'm a Canadian citizen. I don't see any reason why I can't go buy merchandise anywhere in this country and bring it home. You can buy anything else like cars, clothes, everything. Except for beer."
QED, Your Honour.
Except this is Canada, where there is no such thing as a plain reading of the Constitution, especially when alcohol (it's really amazing how much of our Constitution comes down to booze), producer cartels and provincial interests align. Everyone is hanging their hopes on the Supreme Court upholding the Prohibition-era Gold Seal ruling from 1921, which defended an excessively narrow ruling of Section 121 of the Constitution. And so as you might expect, everyone is lined up against Mr. Comeau, but – in the surest sign that what's going on is rank special pleading – everyone has a different reason for why he's wrong.
It's about the money, says New Brunswick, which has the virtue of honesty. No, it's to prevent the dreaded "market forces" from driving everyone into an uncontrollable "race to the bottom," British Columbia says. Ontario, where some days it is evident the state's instincts regarding vice haven't evolved much since Prohibition, just thinks there's no real reason to revisit the past. Federal officials are being all wishy-washy, imploring the court to take a "nuanced" approach. Nunavut argues that is about public health, and at least they have something of an argument. But for whatever reason, everyone agrees that Mr. Comeau's acquittal cannot stand – everyone, that is, except the people.
Because despite what their respective provincial, territorial and federal governments think, Canadians think they should be able to buy any legal product anywhere in the country, and take it wherever they please. According to a recent poll by Ipsos Public Affairs and commissioned by the Montreal Economic Institute, 89 per cent of Canadians think Mr. Comeau is right, that Canadians should be able to bring any legal product from one province to another. That's almost nine in 10 Canadians, which pretty much has to amount to every Canadian who doesn't have a personal stake in maintaining the status quo.
Crown attorneys across the country might believe the case threatens the foundation of Canadian federalism. If the citadels of booze fall, if the beer goes free, anything could happen. People might demand the same of milk, eggs, chicken and cheese. It could threaten the tax dollars from legalized pot currently dancing in the eyes of provincial treasurers. No, absolutely not: Under no circumstances can Canada be permitted to function like a real country.
A few years ago, a character named Joe captured the country's imagination when he stood up on a stage and went on a rant spelling out just what being Canadian meant to him. I don't live in an igloo, he said. I don't say "aboot," I speak English and French, I believe in peacekeeping not policing, diversity not assimilation, and it's zed, not zee. My name is Joe, he yelled, and I am Canadian.
It was a beer ad, for Molson Canadian, and pretty popular one at that. But for all the cringe-inducing stereotypes, the crude anti-Americanism and the ROC-centrism (it's hard to find Molson Canadian in Quebec), what got ignored was the deep irony of it all. Because if there's one thing that doesn't pull Canadians together, one thing that underscores how deeply, pettily and corrosively provincial we all are, it's beer.
Gerard Comeau begs to differ. He's a Canadian hero. If he wins, we should put him on our money.