ATTORNEY GENERAL OF ONTARIO Vs. CANADA TEMPERANCE FEDERATION

JUDGEMENT

(1.) On 1 June 1939, the Lieutenant-Governor of Ontario in Council referred to the Supreme Court of Ontario under the provisions of the Constitutional Questions Act, R. S. Ont Cap. 130, the following question : "Are Parts I, II and III of the Canada Temperance Act, Revised Statutes of Canada, 1927, Cap. 196, constitutionally valid in whole or in part, and if in part, in what respect ?" On 26 September 1939, the Supreme Court by a majority (Riddell, Fisher, McTague and Gillanders JJA.) answered the question as follows: "This Court is of opinion (Henderson J. dissenting) that Parts I, II and III, Canada Temperance Act, Revised Statutes of Canada 1927, cap. 196, are within the legislative competence of the Parliament of Canada."

(2.) Against this judgment, the Attorney-General for Ontario and the Moderation League of Ontario have appealed to the Judicial Committee and their appeal has been supported by the Attorneys-General of Alberta and New Brunswick who were admitted as interveners and were represented on the hearing. The appeal was opposed by counsel appearing for the Attorney-General of Canada and for several Temperance Federations The object of the appeal is to challenge the decision of this Board in (1882) 7 AC 829,1 or at any rate to deny its applicability to the Act now in question. The majority of the Supreme Court held that that decision governed the present case and obliged it to answer the question referred to it in the affirmative. The statute which was declared to be within the legislative competence of the Dominion Parliament in (1882) 7 AC 8291was the Canada Temperance Act, 1878. That Act has been amended from time to time by the Dominion Parliament and has been revised and re-enacted in a consolidated form on more than one occasion under the provisions of the Acts relating to the revision of Statutes of Canada. The last revision took place in 1924 under the provisions of the Dominion Act, 1924, (14 and 15 Geo. V. Cap. 65) and now appears on the Statute Roll as the Canada Temperance Act, R.S.C. of 1927, cap. 196. The material provisions of the Act of 1927 are admittedly identical with those of the Act of 1878. The object of the Act of 1878 was to authorise the adoption of a system of local option in regard to the sale of intoxicating liquor in counties and cities through-out the Dominion. By Part I elaborate provisions are made for bringing the Act into force within the area of any county or city. Following on a petition to the Governor-General in Council supported by a certain proportion of the electors in the area, a poll is to be taken, and if a majority supports the petition an Order in Council is passed bringing the Act into effect in that area for a minimum of three years. Amendments have from time to time been passed dealing with portions of the Dominion which were not divided into counties and substituting electoral districts as the area in such cases, but it is unnecessary to set these out in detail. Part II prohibits the sale of liquors in the areas in which the Act is brought into force, and Part III provides for prosecution and penalties, which in some cases are severe, for breaches of the Act.

(3.) The Act having been passed in 1878, its constitutional validity was challenged in 1882 in 7 AC 8291 which arose out of a conviction of the appellant Russell for unlawfully selling intoxicating liquor contrary to the provisions of Part II of the Act. It was argued in that case that the Act was ultra vires of the Dominion Parliament on the ground that the matter was one which fell within S. 92, British North America Act, and was, therefore, within the exclusive jurisdiction of the provincial legislatures. The Board, however, held that the Act did not deal with any of the matters exclusively reserved to the provinces and upheld the validity of the statute on the ground that it related to the peace, order and good government of Canada. This decision has stood unreversed for 63 years. More than that, it has received the express approval of the Board in subsequent cases. A notable instance is to be found in (1896) AC 348.2In that case Lord Watson, in delivering the judgment of the Board said at p. 362 : "The judgment of this Board in (1882) 7 AC 8291has relieved their Lordships from the difficult duty of considering whether the Canada Temperance Act of 1886 relates to the peace, order and good government of Canada in such sense as to bring its provisions within the competency of the Canadian Parliament."