The idea that parties that lose elections don’t get to make public policy shouldn’t be controversial. And yet that’s where we’re at this week, following the Progressive Conservative government’s introduction of legislation on Monday afternoon that aims to marginally liberalize beer sales by dissolving a 10-year agreement entered into by the Liberal government and the owners of the Beer Store in 2015.
Left-wing critics of the premier were quick to pounce: Why is the government risking a billion-dollar penalty for breaking the agreement instead of just waiting until it expires in 2025? For beer? Who cares?
Well, the government cares. And liberalizing beer sales was one of the few black-and-white commitments the Tories made during last year’s campaign, so we can reasonably conclude that at least some voters care about it, too. Also, the “billion dollar” penalty is a figment of the Beer Store’s imagination, something the corporation is using to negotiate in the court of public opinion. A shocking number of people are taking it seriously. But the whole point of the new legislation — Bill 115, the Bringing Choice and Fairness to the People Act — is to reduce the penalty to zero, or as close to zero as possible after lawyers’ bills are paid.
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Which brings us to the question of why the government doesn’t just wait another six years. The answer to that is simple: the Liberals did not have the right to make provincial policy intended to endure more than two elections into the future, no matter what the voters wanted. Parliamentary sovereignty — the principle that legislatures can make whatever laws they want, regardless of whether they reverse the decisions of their predecessors, so long as they stick to the Charter and the Constitution — is a key part of the Canadian constitutional order. (You can believe me, or you can consult the Supreme Court of Canada.)
The fact that the existing agreement contains language geared toward protecting the Beer Store from exactly this kind of legislation is meaningless: the Beer Store might have wanted that language in there, and the government of the day might have consented to it, but no government has the right to give away a constitutional power with the stroke of a pen, certainly not in a cozy business agreement with a campaign donor.
(Oh, had you forgotten that the 2015 agreement was made back when corporate donations to political parties were legal? That’s right. And, according to Elections Ontario, the Beer Store donated $14,344 to the Liberals in 2014.)
Beer may not be a life-and-death matter, but that doesn’t make the 2015 agreement any less odious: it’s designed to allow a political party to continue to make public policy for seven years after an election defeat. Elections are supposed to matter. That means that, subject only to the limits of the Constitution, a properly elected government has the right to carry out its program.
Progressive critics of the government may nevertheless reject the notion that this is a wise use of the legislature’s powers. (Indeed, progressives may not mind the idea of Kathleen Wynne’s policies outliving her tenure as premier at all, given the policies of her successor.) And that’s fine. I can’t make people care about beer. And, despite the relatively clear constitutional precedents, courts can be surprising places, and a judge may yet impose a large penalty on Ford’s government for this. Regardless, the left in Ontario should be fervently hoping that the government gets away with the smallest penalty possible.
That’s because none of the progressive policies they support — universal basic income, more rights for organized labour, a Green New Deal — would be able to survive a rule that gives the government of the day the right to bind the hands of successive governments in terms of policy. Such an absurd rule would, for example, allow Ford to ensure that Ontario would never implement a carbon price. If Mike Schreiner then led the Greens to a landslide election win, he’d be stuck with that. PC policy would have become Ontario policy in perpetuity.
So, while you may be inclined to holler at the Tory government, keep in mind: if a court imposes a draconian penalty on the government for breaking the Beer Store agreement, it will also be sounding the death knell for ambitious progressive policy — precisely when issues ranging from wealth inequality to climate change are crying out for ambitious solutions.