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The 19th-century ideals behind our still antiquated liquor laws

To get a drink (legally) on PEI a century ago, you’d need a physician to prescribe liquor for medicinal use. Absurdities in our liquor regulations in this region continue to this day.

Compare two encounters with the law regarding booze: the first in prohibition-era Nova Scotia involving a professional bootlegger; the second with a New Brunswick retired steelworker five years ago.

“If they’d catch me, they’d have had me on about five different charges,” wrote Captain ‘Spinny’ Spindley in his journal. “…I had my rifle there…and wine, and rum…and this cop came...Then he opened the back door, and the gun fell out…And he says, ‘Well, I’ll let you go this time, but don’t let it happen again.’ And I thanked him, and I felt some good, because I could have lost the car, and the rifle and the shotgun…I just happened to strike one of the good guys.” (as recounted in his nephew David Mossman’s 2016 book Oceans of Rum.)

In October 2012, Gérard Comeau of Tracadie-Sheila, NB, was less lucky on his semi-regular beer run across the Quebec border. He didn’t know he was under the surveillance of a team of plainclothes RCMP officers, who stopped him en route home and hit him with a $292.50 fine for “smuggling” 14 cases of beer and three bottles of spirits.

Unlike Captain Spinny, Comeau wasn’t aware he was breaking the law. Yes, drinking is legal now—but carrying more than 12 bottles of beer across a provincial border, even for personal consumption, is not. This is a restriction as severe as those on our international borders.

Comeau was one of 17 people charged that day. Unlike his fellow “smugglers,” he challenged his ticket in court and eventually won. “After three years, I’m thirsty,” he joked outside the courtroom.

The New Brunswick court ruled it unconstitutional to limit the movement of legal goods across a provincial border—we are a single nation, after all—and that ruling may change the law of the land when tested before the Supreme Court of Canada. New Brunswick, and the other provinces, view this as a high-stakes case. Liquor is their third-largest revenue source after taxes and user fees.

The law being challenged dates back to Captain Spindley’s heyday, 1928 to be precise, part of the Importation of Intoxicating Liquors Act. As prohibition rules were lifted at various times in different provinces, the act was originally meant to prevent bootlegging runs from wet to dry provinces. Now it protects the interests of liquor corporations and commissions, which sprung up as replacements for prohibition’s legislative hodgepodge.

With a little-known head-scratcher of a law like that still on the books, one wonders how far we’ve progressed in attitudes toward liquor since prohibition (which lasted until 1948 on Prince Edward Island).

People would find novel ways of concealing and smuggling liquor.

The need to control alcohol consumption is real—more people are admitted to hospital due to alcohol abuse than for heart attacks—but the laws around this legal intoxicant can seem arbitrary, if not completely farcical. You can get loaded at home but can’t soberly carry a glass of wine to your neighbour’s house. Consume multinational beer brands at a hockey game, but don’t dare bring a local brew from home. Fill your passenger seats with gin-stewed lushes but do not leave a closed, sealed bottle of anything alcoholic within reach of the sober driver.

And, believe it or not, there are still 105 “dry” communities in Nova Scotia, and technically a plebiscite is needed to make them wet again. For the most part, residents aren’t aware of their status.

A history of intemperance

When we say prohibition, we mean those between-war years when various Canadian and American jurisdictions decided to get rid of evil drink once and for all. But the ideas of prohibition and its devout cousin temperance go back much further, to the earliest European settlements on this land. As early as 1633, drinking establishments had been banned in St. John’s since the men who controlled the fisheries found the drinking of their employees hurt their productivity.

The laws were applied more strictly to the original Indigenous inhabitants. As James Morrison and James Moreira note in their 1990 book, Tempered by Rum, in the late 17th century the Roman Catholic Church fretted that alcohol was ruining its missionary efforts and convinced authorities to “restrict and prohibit the native alcohol/fur trade traffic.” Edward Cornwallis, the “founding” governor of Halifax, had his wrist slapped by the British Lords of Trade for stocking 3,000 gallons of rum in Annapolis in 1750, which was considered “an immoderate allowance.”

According to Barry Grant’s When Rum Was King, most of the early settlers were known as “savagerous boozers.” Spirits were seen as necessary to survive the cold climate, and alcoholism was itself treated with a concoction of live eels steeped in rum. By the mid-1800s, rum was usually the single largest expenditure a man had and “lawless packs of lumberers” engaged in annual “spring blowout” brawling parties.

As logging villages emerged throughout New Brunswick, where moderate drinkers downed half a pint of strong drink daily, the religious and mercenary found a common cause in bringing the drinking—and the brothels and chaos that went with it—under control.

The temperance movement, steeped in images of “white-robed virgins” and “love, purity and fidelity,” reached our region in 1793, when Hants County, NS farmers formed the Association Against Spiritous Liquors. While their arguments were moral, their motivations were financial: they’d been paying workers in rum, the cost of which was rising rapidly.

As it ever has been, wherever there were restrictions on fun, there were the unscrupulous usurpers of the law, which in the early 19th century included one-third of everyone living near the Maine-New Brunswick border. These folks were financially dependent enough on bootlegged booze that they ignored the War of 1812; it was bad for business.

The temperance movement was usurped by wealthy men like Leonard Tilley, New Brunswick’s Father of Confederation, and its organizations served as places to network. Its members were split between those who believed in appealing to morality and those who felt only prohibition could save society from “ruining thousands of lives and endangering an entire society,” according to Grant. Both sides were fond of quoting the Bible and singing anti-booze gospel songs.

In 1855, the prohibition side had a temporary victory in New Brunswick. The ban on alcohol lasted seven months, during which time the black market thrived and people kept on drinking. Canada failed to learn from New Brunswick’s mistake and passed the Scott Act in 1878 (Newfoundland followed with its own temperance act in 1884) allowing local governments to become “dry” with successful plebiscites.

The first eight municipalities to adopt the Act were all in the Maritimes, where a liking for prohibition had taken hold with the religious majority; 82 percent of Maritimers favoured prohibition in an 1893 referendum compared to 51 percent of all Canadians. By the turn of the 20th century, 26 of 40 Maritime municipalities were dry.

Eventually, prohibition went provincial. Newfoundland banned alcohol sales from 1915 to 1924. Prince Edward Island instituted a prohibition act from 1901 until 1948. New Brunswick was dry from 1917 to 1927; Nova Scotia from 1910 until 1929. The three Maritime provinces were the last in Canada to drop prohibition.

And still the liquor flowed; with lax law enforcement, it was easy as driving to the next wet town or calling on your local bootlegger. Bootlegging had more money than the law and it thrived where the laws were strongest. When our eastern provinces finally lifted prohibition, it was economics that won out over morality: the provinces to the west of us were making a killing on regulated liquor sales.

A modern liquor monopoly

As Heron points out in Booze, after prohibition provincial governments were happy to take over for bootleggers in distributing liquor for money. But governments also took on a conflicting role, the “moral policing” of drinking behaviour. That meant tight controls over liquor advertising, which was banned in New Brunswick and Nova Scotia, and making the purchasing of liquor the most depressing and expensive activity possible, at a limited number of stores, which looked and felt like banks, with the booze locked up and out of reach and transactions completed in writing. Buyers in Newfoundland, Nova Scotia and Prince Edward Island needed a permit; you couldn’t get one if you were Indigenous and your odds were only slightly better if you were on welfare.

A significant means of restricting the flow of alcohol was limiting the number of liquor stores. There were 27 of them in Nova Scotia in 1930, compared with 106 today. It wasn’t until the swinging ’60s and ’70s that things really opened up, governments began treating liquor corporations as cash cows and liquor stores proliferated, taking on a genuine retail marketing function.

New Brunswick opened its first self-serve store in 1969. That province has now opened four “liquidation” outlets with significantly discounted prices.

It was during the ’70s that alcohol consumption hit its post-prohibition peak across Canada—11 litres of pure alcohol per person annually.

For the liquor corporations of our region, that coincided with the liberalization of liquor laws and a professionalization of efforts to market alcohol consumption. These efforts have not been without controversy.

More than a decade ago, the Nova Scotia Liquor Corporation was explicit in its annual business plan about “competing directly for a share of the customer’s discretionary income” and “designing and implementing a reputation management strategy,” tactics more typical of a marketing agency than a regulatory body.

The need for reputation management resulted in part from a patronage scandal. It erupted when the Nova Scotia Tory government was accused of appointing inexperienced friends of the party to cushy high-paid jobs at the corporation.

“There’s not a single person on this list who has any experience in retail,” stated NDP opposition MLA Graham Steele at the time.

This kind of accusation has dogged liquor corporations in every province, along with occasional calls for the privatization of the industry. Nationally, there has been a gradual privatization of liquor industries, most notably in British Columbia. And alcohol consumption has moved back upward since the late 1990s, increasing 13 per cent from 1996 to 2010 as government controls relaxed, marketing efforts intensified and retail outlets proliferated.

Among the purveyors of alcoholic beverages, such transitions have been forged in rocky relations with provincial liquor corporations, which resist any threat to their cash cow and hold tightly to protections like inter-provincial tariffs.

Eight years ago, the New Brunswick Liquor Corporation, (which loses $12 million annually to Quebec’s cheaper and more conveniently available at grocery and convenience stores alcohol) brewed its own “discount” beer, NB Select, which sold for $18.67 per 12-pack. It was a predictable failure. Quebec was still far cheaper with many more options. That fiasco couldn’t have sat well with craft brewers, which already feel impeded by the liquor corporations.

“I think the liquor corporation just wants its profits,” says Andrew Murphy, a partner at Unfiltered Brewing Inc. in Halifax. His company is awaiting a decision from the Nova Scotia Supreme Court that could eliminate the province’s longstanding retail sales mark-up allocation, a fee it says grants small brewers and wineries access to promotion and in-store product placement. “Great, but we don’t sell in their stores,” Murphy complains.

To him, the mark-up is a tax the corporation is not authorized to charge, and a blatant cash grab. It nets NSLC nearly $2 million annually from wineries and breweries. “I imagine someone there realized they weren’t making money off these breweries with their own stores.”

Murphy also anxiously awaits the Supreme Court of Canada’s decision on Comeau’s challenge of the Importation of Intoxicating Liquors Act, a decision he hopes will make his product accessible across Canada. “There is a 70 per cent mark-up on PEI and a 40 per cent mark-up in New Brunswick” for Nova Scotia products.

Like many small producers, Murphy shakes his head at the notion of liquor corporations limiting alcohol’s negative impacts. “It’s a monopoly that hasn’t been audited in 15 or 20 years,” he says. “There should be oversight.” He would like to see a system more like Quebec’s, with alcoholic beverages more widely available but with tax dollars going toward health promotion and protection.

This concept is not novel. The United States’ liquor market, which is regulated differently in each state, is on the whole more liberalized and privatized. In most states beer, wine and/or spirits are available in grocery stores. Yet Americans consume about 10 per cent less than Canadians per capita.

Interestingly, one US study by the Center for Disease Control and Prevention found that states barring supermarket booze sales have the highest costs associated with over-consumption.

The Nordic countries, which share similar religious (Lutheran) temperance-and-prohibition histories with us, strictly regulate alcohol. Finns consume nearly 20 per cent more per capita than we do. Denmark, where the drinking rate is nearly identical to ours, is the exception with far more liberal liquor laws. Norway shares our reliance on government monopolies, but has a 32 per cent lower drinking rate.

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