New Brunswick Bill 17 What the Heck?

The Province's ban on swearing while drinking beer outside of your house.

Good natured swearing while having a beer outside of your house. It is something that any New Brunswicker has done or has witnessed when someone is adding a colourful exuberance while telling a tale at a pub. Further, everyone has attended a concert where the performer has used a swear word as part of their lyrics or performance. However, New Brunswickers would be surprised to know that these activities are actually illegal under Liquor Control Act regulations. Further, Bill 17 An Act Respecting Outlaw Motorcycle Gangs which is before the Legislative Assembly continues this prohibition where it is likely unconstitutional or simply an overbroad legacy provision of the act that should be repealed.

Bill 17 contains laudable public policy goals to reduce and deter the presence of individuals who belong to a gang from being in a licensed liquor premises. However, the bill restates a clause that has existed since the original Liquor Control Act regulations were issued in 1963 that makes it illegal for the holder of a liquor license to permit the use of swearing in their bar, restaurant or any other place which serves liquor.

The Issue

Clause 2 of Bill 17 modifies New Brunswick Regulation 84-265 General Regulation to create a new subsection 20(1) which creates obligations on the holder of a liquor license:

20( 1) No licensee shall permit disorderly, boisterous or intoxicated persons to be in the licensed premises, permit the use of profane or vulgar language in the licensed premises or use profane or vulgar language in the licensed premises.

This is very similar to the current section 20

20 A licensee shall not permit any disorderly, boisterous or intoxicated person to be in or upon his licensed premises nor use or allow the use of profane or vulgar language therein.

In New Brunswick there are a wide range of liquor license holders ranging from Canadian Forces canteen clubs, restaurants or theatres but they all have one thing in common. A liquor license holder who is found in violation of this section can be charged a $500 fine on the first offence and $1000 on a second offence.[1] Depending on the context, there is also the power to either suspend or cancel a liquor license arising from repeated violations of the Act which would include allowing the repeated use of swearing in the establishment.

When examining the section in whole, it is clear that the main premise of the law is to prohibit conduct that could lead to worsening aggressive behaviour in places where liquor is consumed. By prohibiting disorderly, boisterous, or intoxicated persons, there is a clear nexus between negative conduct and the attachment of conditions as part of a liquor license. Presumably in the eyes of the drafters, the intention of prohibiting profane or vulgar language within a licensed establishment is to restrict the type of swearing that would lead to aggressive, escalating conduct. The problem is that the language of the regulation does not say that, it simply creates a prohibition from any swearing. This is clearly overbroad in scope as it makes the liquor license holder liable for swearing that is detached from boisterous or disorderly conduct.

Legislative History

The Liquor Control Act is a very old law. First passed in 1962, the act radically transformed the sale and consumption of liquor in New Brunswick. Prior to the adoption of the act, almost all non private consumption of liquor was illegal although the Report of the New Brunswick Liquor Commission Inquiry found an overall non enforcement of the law. Thus the 1962 Liquor Control Act was created in part to allow for the legal regulation of the consumption and sale of liquor in public by creating a series of liquor license categories.

Report of the New Brunswick Liquor Inquiry Commission.

The 1963 Regulation 96, issued after the passing of the original Liquor Control Act, in section 27 contain the same provisions as the current section 20:

27. A licensee shall not permit any disorderly, boisterous or intoxicated person to be in or upon his licensed premises nor use or allow the use of profane or vulgar language therein.[2]

As this is the exact same language, the drafters of Bill 17 are simply restating the existing prohibitions rather than modifying them to be acceptable for modern society. From a legal perspective, this demonstrates that the text originates pre charter and does not meet current constitutional requirements to be valid law.

An Official Languages Issue?

Due to the age of the text, this also raises a quirky official languages issue. In New Brunswick both the French and English versions of the text are equally authoritative; however, as this text was not drafted in both French and English initially, when the Official Languages Act was passed, the English version of the text was translated into French with the following text

Le titulaire d’une licence ne doit pas permettre qu’une personne ait une conduite désordonnée ou bruyante ou se trouve en état d’ébriété dans son établissement titulaire d’une licence ni y employer ou y permettre l’emploi d’un langage vulgaire ou blasphématoire.

This creates an inconsistency between the French and English text where in English “vulgar or profane” language is prohibited but in French the prohibition is against “vulgar or blasphemous” language. Simply, the common English definition of profane can include secular offensive language whereas blasphemous language is strictly related to offensive language with a religious connotation. The discrepancy arises due to Canadian French generally contains swear words with a Catholic origin. It is beyond my capacity to make a determination if speaking generally one official language but using swear words from the other official language constitute a violation of section 20 of the Liquor Control Act regulations. Regardless, the discrepancy is a further motivation for the law to be redrafted.

Discussion: The Constitutional Limits of the Province to Regulate the Sale and Consumption of Liquor

In Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), the Supreme Court of Canada found that regulating the form of entertainment, in this case exotic dancers, used by owners of a licensed premises as marketing tools to boost the sales of alcohol fell within the legislative jurisdiction of the province. However, the court did not find there was sufficient evidence in the record to consider a Charter analysis respecting the freedom of expression protected under 2(b).

In general, the province is free to attach conditions to a liquor license where the holder of the license must undertake certain obligations. Even if there is a degree of overlap with federal criminal law powers, the constitutional doctrine of double aspect applies to allow the provincial law to operate as there is not a direct conflict.

This was also explained by Regina v. Skagstead and Skagstead, 1963 CanLII 576 (MB CA) which indicated that prohibiting disturbances as a function of a liquor license, does not run afoul of the federal criminal law power and falls within the property and civil rights of a province.

Charter right to swear

There are Charter of Rights and Freedoms considerations. Swearing is a form of expression and a protected right under section 2(b) of the Charter where offensive, but nonviolent, communication is afforded protection under the Charter. [3] Any limitation on the right must be minimally impairing and not overbroad.[4] Accordingly, It is not possible for the Government of New Brunswick to maintain that the prohibition as drafted is truly constitutional.

The holder of the liquor license is prohibited from any swearing, and must also prohibit any swearing in the premises that serves alcohol without any distinction. One only has to consider live theatre or musical performance that contain one-off good-natured swearing by the performers or even offensive swearing by the performers. As indicated in the introduction, the holder of a liquor license also has an obligation to ensure that patrons on the premises do not swear. Because there is no linkage, or conditions on the language of the prohibition to solely prevent swearing that could lead to violence, the infringement is overbroad and not a justifiable infringement.

New Brunswick’s terminology can be contrasted with Alberta’s statutory provisions within their former Liquor Control Act. Alberta used to have a similar ban on swearing in their liquor legislation until 2000 with a prohibition against causing disturbances.

“86. No person shall cause a disturbance in a licensed premises (a) by fighting, shouting, swearing or using insulting or obscene language, or”[5]

The distinction in Alberta’s example is that the swearing must have caused a disturbance. The wording was changed to create a prohibition against conduct that “is detrimental to the orderly operation of the premises.”[6]This new language makes a clearer understanding behind the intent of the law.

Exceeding the Scope of the Statute

Regulations, as subordinate legislation, do not exist in a vacuum, they are dependent upon the wider framework conferred by the parent statute. What this means in practice is that a regulation must align with the principles of the statute but also be expressly authorized by the statute.

In the case of the Liquor Control Act, the intent is clear that the regulations relate to the sale and consumption of liquor. However, the scope of the ability to regulate the speech of the liquor license holder or patrons is less clear.

I presume that this ability would fall under section 200(1)(e) of the Act which gives cabinet the ability to make regulations:

respecting the conduct, management, equipment, size, capacity and facilities of any premises that are the subject of a licence or permit;

Where regulating the speech would fall under the regulation of the conduct of a premises that has a liquor license attached to it.

Alternatively, 200(1)(a) may provide the authority:

(a) respecting standards, in addition to those prescribed by this Act, to be met and maintained by licensees with respect to licensed premises, or by permittees;

In this sense, the holder of a liquor license has a legal obligation to ensure that the standard of no swearing is met.

Another complicating factor is that depending on the nature of the regulation, unless explicitly stated, a regulation does not confer the power to prohibit. The classic case of City of Toronto v Virgo held the regulating of businesses did not include a power to prohibit. However, subject matters such as those that fall under the protection of the public health contains an implicit power to prohibit. [7]

Where does the Liquor Control Act fall? In R v Comeau, the Supreme Court of Canada held that the purpose of the act is the following:

The objective of the New Brunswick 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.[8]

With respect to section 20 and the proposed 20(1) of the General Regulation, it is probable that aim of the regulation is to regulate a business for matters of public safety and welfare. Therefore, there is likely an implicit power to prohibit. Yet the issue at hand is whether swearing that is neither boisterous nor disorderly, exceeds the scope of the regulation?

In this case the answer is yes. Speech that does not cause a disturbance and does not fall into the realm of safety, business, or regulatory matters is outside of the purpose of the Liquor Control Act.

Solution

The Legislative Assembly should amend Bill 17 in Committee by deleting references to swearing. In this manner, the regulation would still capture and prohibit any conduct, including swearing that would meet the threshold of being disorderly, or boisterous.

Alternatively, the regulation could mirror the Alberta example and be redrafted as

20( 1) No licensee shall permit conduct that is detrimental to the orderly operation of the premises or intoxicated persons to be in the licensed premises.

The Big Picture

The government is proposing to continue an aspect of the Liquor Control Act regulations that have existed since 1963. Clearly this part of the law is not the main purpose of Bill 17. I cannot think of a valid reason why Government, if made aware, would allow the continuation of a law that is simultaneously unenforceable, probably unconstitutional, but also completely out of step with how New Brunswickers govern themselves in 2025. Recall that the entire purpose of the 1963 Liquor Control Act was to legalize activities governing alcohol that were illegal under the former Intoxicating Liquor Act. Amending this law can be a small but important aspect to ensure that the law is constitutionally compliant and also coherent from a policy perspective.

Although Cabinet could repeal the regulation via Cabinet order, they should not wait to do so. Bill 17 will be going through the Committee process and can be dealt with immediately. It serves little public good to have Cabinet devote their time to end the swearing ban when there is an opportunity for MLAs to correct an issue that has existed in law since 1963. Failure to do so means that any bar owner may be subject to fines because of their patrons’ exuberance watching their favourite team in the NHL playoffs.

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[1] NB Reg 84-265 Schedule A https://www.canlii.org/en/nb/laws/regu/nb-reg-84-265/latest/nb-reg-84-265.html

[2] Thank you to the Provincial Archives for their assistance in finding this regulation

[3] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html

[4] R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697, <https://canlii.ca/t/1fsr1>, retrieved on 2025-04-25

[5] Liquor Control Act, RSA 1970, c 211, s 86. <https://canlii.ca/t/53rrc> retrieved on 2025-04-25

Liquor Control Act, RSA 1980, c L-17, <https://canlii.ca/t/53qbc> retrieved on 2025-04-25

[6] Gaming, Liquor and Cannabis Act, RSA 2000, c G-1, s 69, <https://canlii.ca/t/81sl#sec69>, retrieved on 2025-04-25

[7] Brittain Steel Fabricators and New Westminster (City) Bylaw 3869 (Re), 1963 CanLII 516 (BC CA), 678

[8] 125