CHAPTER XIII.

JUDICIAL DECISIONS ON QUESTIONS OF JURISDICTION

CONTINUED.-BOUNDARY AWARD.

In 1878, the parliament of the dominion passed an act cited as the "Canada Temperance Act, 1878." The preamble sets forth "that it is very desirable to promote temperance in the dominion, and that there should be uniform legislation in all the provinces regarding the traffic in intoxicating liquors." The act is divided into three parts, the first of which relates to "proceedings for bringing the second part of this act into force;" the second to "prohibition of traffic in intoxicating liquors; and the third to "penalties and prosecutions for offences against the second part." The effect of the act when brought into force in any county or town within the dominion is, describing it generally, to prohibit the sale of intoxicating liquors, except in wholesale quantities, or for certain specified purposes, to regulate the traffic in the excepted cases, and to make sales of liquors, in violation of the prohibitions, and regulations contained in the act, criminal offences punishable by fine, and for the third or subsequent offence, by imprisonment. The

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supreme court of New Brunswick in 1879 decided 1 that the Act was ultra vires, but the supreme court of Canada subsequently held that it was within the competency of the parliament of Canada, and inter alia that under the second sub-section of the 91st section of the B. N. A. Act, "regulation of trade and commerce," parliament alone has the power of regulating the traffic in intoxicating liquors in the dominion or any part of it.2 The whole matter came finally before the privy council who do not dissent from this opinion, but base their decision on other grounds which render it unnecessary to discuss the question of trade and commerce. Their lordships considered fully the point whether the act falls within any of the three classes of subjects enumerated in section 92 and assigned exclusively to the provincial legislatures, viz. :

9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local or municipal purposes.

13. Property and civil rights in the province.

16. Generally, all matters of a merely local or private nature in the province.

Their lordships decided that the act does not fall within any of these classes of subjects, for the following

reasons:

The act is not a fiscal law- —a law for raising revenue; on the contrary the effect of it may be to destroy or diminish revenue; and consequently could not have been passed by the provincial legislature by virtue of any

1 3 Pug. and Bur., 139.

2 Can. Sup. Court R., vol. iii, pp. 505-574.

authority conferred upon it by sub-section 9. And supposing the effect of the act to be prejudicial to the revenue derived by the municipality from licenses, it does not follow that the dominion parliament might not pass it by virtue of its general authority "to make laws for the peace, order and good government of Canada." The act does not properly belong to the class of subjects, "property and civil rights." It has in its legal aspect an obvious and close similarity to laws which place restrictions on the sale or custody of poisonous drugs, or of dangerously explosive substances. The primary matter dealt with is the public order and safety. Upon the same considerations the act cannot be regarded as legislation in relation to civil rights. In however large a sense these words are used, it could not have been intended to prevent the parliament of Canada from declaring and enacting certain uses of property and certain acts in relation to property, to be criminal and wrongful. Laws designed for the promotion of public order, safety or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of parliament, to make laws for the order and good government of Canada, and have direct relation to criminal law, which is one of the enumerated classes of subjects assigned exclusively to the parliament of Canada. Few, if any, laws could be made by the parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights; and it would not have been intended, when assuring to the provinces

exclusive legislative authority on the subject of property and civil rights, to exclude the parliament from the exercise of this general power whenever any such incidental interference would result from it. Their lordships cannot concur in the view that the act "which in effect authorizes the inhabitants of each town or parish to regulate the sale of liquor, and to direct for whom, for what purposes and under what conditions spirituous liquors may be sold therein, deals with matters of a merely local nature." On the contrary, the declared object of parliament in passing the act is that there should be uniform legislation in all the provinces respecting the traffic in intoxicating liquors, with a view to promote temperance in the dominion. The act as soon as it was passed became a law for the whole dominion, and the enactments of the first part relating to the machinery for bringing the second part into force, took effect and might be put into motion at once and everywhere within it. The conditional application of certain parts of the act does not convert the act itself into legislation affecting a purely local matter. The legislation in question is clearly meant to apply a remedy to an evil which is assumed to exist throughout the dominion, and the local option, as it is called, no more localizes the subject and scope of the act than a provision in an act for the prevention of contagious diseases in cattle that a public officer should proclaim in what districts it should come into effect, would make the statute itself a mere local law for each of these districts. In statutes of this kind the legislation is general, and the

1 Allen C. J., 3 Pug. and Bur., 139.

provision for the special application of it to particular places does not alter its character.1

The immediate effect of this important judgment on the Temperance Act was the passage by the parlia ment of Canada, in the session of 1883, of "an act respecting the sale of intoxicating liquors and the issue of licenses therefor." The preamble of the act sets forth as the grounds for legislation that "it is desirable to regulate the traffic in the sale of intoxicating liquors; that there should be a uniform law regulating the same throughout the dominion; that provision should be made for the better preservation of peace and order." The act provides for the issue of licenses to hotels, saloons, shops, vessels, and wholesale dealers, and exacts only such fees as are necessary to the execution of the act.2

Subsequent to the passage of this Act, the judicial committee of the privy council rendered a judgment which has a very important bearing on the question of jurisdiction in the matter of the regulation of liquor traffic in a province, and consequently on the constitutionality of the measure just mentioned. The fourth

1 Judgment of the lords of the judicial committee of the privy council on the appeal of Charles Russell vs. The Queen, on the information of Woodward, from the supreme court of New Brunswick, delivered 23rd June, 1882. 7 App. Cas., 829.

246 Vict., c. 30; (see reference to subject in his Excellency's speech, Jour., p. 14.) But strong objections were taken in the House of Commons to the act on the ground (as set forth in a resolution) that "the parliament of Canada should not assume jurisdiction, as proposed by the said bill, until the question of jurisdiction has been settled by the court of last resort." Can. Com. J., May 22. See Can. Hans., May 16, 21 and 22.