McGill Law Journal ~ Revue de droit de McGill
THE EFFECT OF ALCOHOL ON THE CANADIAN
CONSTITUTION … SERIOUSLY
F. R. SCOTT LECTURE
The Honourable Morris J. Fish*
Alcohol has exerted a staggering influence
on the Canadian constitution. It was a promi-
nent feature of daily life in the young Dominion,
much to both the delight and chagrin of many.
The temperance movement exerted its own in-
fluence on both the federal and provincial legis-
latures. Without alcohol as a head of power,
the legislatures claimed control over this seem-
ing, social evil sometimes under Peace, Order
and Good Government, criminal law, or
Trade and Commerce; at other times under
Property and Civil Rights, Local Matters,
and so forth. Court challenges abounded; the
result was, in part, the judiciarys failure to
walk a straight line toward a clear division of
powers between the federal and provincial gov-
ernments. But the result was also many of the
doctrines of division of powers that still form
part of Canadian constitutional law. Beyond its
impact on the division of powers, alcohol was
also at the root of Canadas most important de-
cision on the rule of law: Roncarellia decision
argued and won by the late F. R. Scott.
Lalcool a exerc une grande influence sur
la constitution canadienne. Ce fut un lment
marquant de la vie quotidienne au sein du
jeune Dominion, tant source de plaisir ou de
dpit pour plusieurs. Le mouvement pour la
temprance influena les autorits lgislatives
fdrales et provinciales. Sans l alcool comme
chef de comptence distinct, les pouvoirs lgisla-
tifs ont voulu exercer leur autorit sur ce flau
social, le qualifiant soit sous le chef de comp-
tence paix, ordre et bon gouvernement ,
droit criminel , ou changes et commerce ;
soit sous proprit et droits civils , matires
de nature locale , et ainsi de suite. Les recours
en justice furent nombreux ; le rsultat fut, en
partie, lchec des tribunaux tracer une ligne
sparant clairement les pouvoirs des gouver-
nements fdraux et provinciaux. Le rsultat
fut galement le dveloppement de plusieurs
doctrines sur la sparation des pouvoirs, qui
font toujours partie du droit constitutionnel ca-
nadien. Au-del de son impact sur la sparation
des pouvoirs, lalcool fut au coeur de la dcision
la plus importante sur la primaut du droit au
Canada : Roncarelliune dcision plaide et
gagne par feu F. R. Scott.
* Justice of the Supreme Court of Canada. The author acknowledges with appreciation
the assistance of his law clerk, Rory Gillis.
The Honourable Morris J. Fish 2011
Citation: (2011) 57:1 McGill LJ 189 ~ Rfrence : (2011) 57 : 1 RD McGill 189
190 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
Liquor: A Constitutional Succour?
A. The People
B. The Legislation
C. The Courts
II. One of F. R. Scotts Legacies: Roncarelli
Conclusion
191
194
194
197
198
206
207
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 191
Introduction
It is a pleasure to return to McGill. And it is an honour to give the
F. R. Scott Lecture. It is an honour for many reasons, personal and pro-
fessional. To have had F. R. Scott as a professor is to be blessed with the
lifetime gift only a great academic can bestow. To have known the poet
and to have read his poetry is to have savoured the expression of a man
who is living intensely and sensitively on all levels, spiritual, intellectual,
political and sensual.1 To have enjoyed the friendship of Frank and Mar-
ian Scott, as my wife Judy and I did for 25 years, is itself a cause of cele-
bration. I am so honoured to have been invited today to honour Frank
Scotts memory in this way, and to recall Marian as well, with affection
and admiration.
I remember vividly my first lecture in Professor Scotts constitutional
law class. Professor Scott, a tall and charismatic man, entered the class-
room with his notes in one hand and the class list in the other. In those
days, class attendance was both mandatory and recorded. Scott called out
the names on his list: Angus?; present. Brown?; present. Cohen?;
no answer. Cohen?; again no answer. Scott looked up, a puzzled expres-
sion on his face. Has this man no friends?, he asked.
I remember as well a phone call I received at my law office from Pro-
fessor Scott in 1967. He sounded distraught. Could I please come up to see
him as soon as possible? I rushed to the Law Faculty. No sooner had I en-
tered his office than he removed a summons from his top drawer and
placed it in my hand. I immediately understood the ominous legal and po-
litical consequences that had brought me to Frank Scotts office. This Ca-
nadian legal legend of the political left stood charged with having turned
right… on a red light! I could see the headlines: F. R. Scott, homme c-
lbre de gauche, effectue un virage droite ! I had no choice but to save
the man, perhaps an entire political movement. And even without the
benefit of the Charter, I managed to do just that.
Scott insisted on an account. I sent him one. It read essentially as fol-
lows: For professional services, including research, preparation, meet-
ings, attendances at court, and disbursements: In all, one poem. Instead,
I received the following note: Dear Morris, How can one repay the gift of
freedom? Eternal gratitude is the least one can offer. As for a poem, it
comes when it comes. Veremos, as the Spaniards say. Love, joy, peace.
Frank Scott.
1 EK Brown, Responses and Evaluations: Essays on Canada, David Staines, ed (Toronto:
McClelland and Steward, 1977) at 239.
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Over the years, Frank Scott sent me copies of his essays, books, poet-
ry, and anthologies. He inscribed one of them as follows: To Morris Fish:
One mans meat is another mans Poisson!
In that light, I turn now from the Poisson to the meat of my lecture. I
begin with a word about its venerable origins. My third-year essay at the
law faculty, written for Professor Scott a half-century ago, was on a mat-
ter of pressing legal, sociological, and political importance: The effect of
alcohol on the Canadian Constitution. Professor Scott liked the paper
and graded it accordingly. But no one has to my knowledge read it since.
When I was invited to give this lecture, I thought this would be a particu-
larly appropriate opportunity to read my paper to you, all 120 pages of it
including the footnotes. Alas, I was unable to locate it. I did, however,
find an editorial page article that I wrote for The Montreal Star several
years later. It was derived from my third-year essay and began as follows:
Liquor has exerted a staggering influence on Canadas constitu-
tion. More staggering, in fact, than the influence it exerted on the
constitution of Canadas first prime minister.
Yet, while many historians … have commented on the drinking
habits of [Sir John A MacDonald], few seem to have noticed that al-
cohol has played so important a role in our national legal develop-
ment.2
In honour of my old professor and friend, F. R. Scott, Id like to return
to this understudied topic of interest to us both: The effect of intoxicating
beverages on our national constitution. I could hardly have chosen a more
auspicious occasion or a more appropriate audience. Your attendance here
in such large numbers testifies to your own fascination with the subject.
Historian Will Ferguson has written, in reference to Confederation
and to the drinking habits of our first prime minister, that Canada, like
many a child, was conceived under the influence of alcohol.3 Ferguson
could equally have been writing about the development of the Canadian
constitution. A surprising number of our foundational constitutional
judgments began as disputes over the sale, licensing, and prohibition of
alcohol. A survey by Professor R. C. B. Risk found that 30 of the first 125
cases addressing the division of powers between the federal and provincial
governments involved liquor disputes.4
2 Morris Fish, The Montreal Star (14 May 1968), 8.
3 Will Ferguson, Bastards and Boneheads: Canadas Glorious Leaders Past and Present
(Vancouver: Douglas and McIntyre, 1999) at 82.
4 RCB Risk, Canadian Courts Under the Influence (1990) 40 UTLJ 687 at 689.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 193
A quick list of key constitutional cases from the late 19th and early 20th
century reads like a liquor board document: Local Prohibition;5 Manitoba
License Holders;6 Canada Temperance Federation;7 Nat Bell Liquors;8
Consolidated Distilleries;9 Canadian Pacific Wine;10 Brewers and Malt-
sters.11 I could go on.
It is in these early liquor cases that we see the first discussions of the
double aspect doctrine; paramountcy; peace, order and good government;
and the legal significance, if any, of the original understandings of the
British North America Act.12
Comment expliquer labondance de causes ayant trait lalcool ? La
rglementation de lalcool a constitu lune des grandes questions juri-
diques, politiques et morales de la fin du 19e sicle et du dbut du 20e
prcisment au moment o les tribunaux taient saisis pour la premire
fois dimportantes questions constitutionnelles. Il sagissait dune question
juridique pineuse, en raison de lincertitude entourant la comptence en
matire dalcool. Les pouvoirs dinterdiction ou de rglementation de la
vente dalcool semblaient se situer lintersection de plusieurs disposi-
tions de Lacte dAmrique du Nord britannique. Il sagissait dun pro-
blme moral pineux, parce que le pays tait divis entre des ouvriers
dont la vie sociale tait axe sur lalcool, et des avocats de la temprance
qui voyaient dans lalcool un des maux de la vie moderne. Et il sagissait
dun problme politique pineux, parce que les hommes politiques des
trois paliers de gouvernementfdral, provincial et municipal
souhaitaient avoir comptence en matire de rglementation de lalcool
afin de pouvoir tirer parti des occasions de favoritisme et des revenus as-
socis aux permis dalcool.
Today, I shall first share with you the story of how alcohol has nur-
tured our constitutional development from its earliest days. And, later,
5 Ontario (AG) v Canada (AG), [1896] AC 348, 11 CRAC 222 [Local Prohibition cited to
AC].
6 Manitoba (AG) v Manitoba License Holders Association (1901), [1902] AC 73, 12 CRAC
333 [Manitoba License Holders cited to AC].
7 Ontario (AG) v Canada Temperance Federation, [1946] AC 193, 2 DLR 1 [Canada Tem-
perance Federation cited to AC].
8 R v Nat Bell Liquors Ltd, [1922] 2 AC 128, 65 DLR 1 [Nat Bell cited to AC].
9 Consolidated Distilleries Ltd v The King, [1933] AC 508, 3 DLR 1.
10 Canadian Pacific Wine Co v Tuley, [1921] 60 DLR 315, 36 CCC 104.
11 Brewers and Maltsters Association of Ontario v Ontario (AG), [1897] AC 233, 11 CRAC
330.
12 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.
194 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
how liquor licensing enabled Frank Scott to make a pivotal and lasting
contribution to the rule of law in Canada.
I. Liquor: A Constitutional Succour?
A. The People
It is useful to begin with a discussion of two realities of 19th century
Canadian life: the centrality of drinking to daily routines, and the social
and political backlash that widespread drunkenness caused.
The most obvious reason why so many constitutional cases involved
alcohol is that there was a lot drinking going on in 19th century Canada
and not much else. In her history of the prohibition movement in Canada,
Jan Noel describes alcohol as the caffeine of daily life.13 Many families,
children included, would begin the day with a stiff shot of whiskey. As one
chronicler reported: Whiskey was served to each member of the house-
hold in the morning. It was considered to be a precaution against colds
and to enable one to do hardy work.14 Even nursing mothers would regu-
larly drink for fortitude. In Montreal, residents would add brandy to their
water to make sure it was safe to drink.15 Some, it seems, still consider
this a sensible precaution.
Following breakfast, men would drink throughout the dayeven, and
especially, while at work. As Noel recounts, labourers would pass buckets
of whiskey in the fields and factories, and carters and cabmen expected a
drink as a tip for their services.16 The professional classes were no differ-
ent than their labouring counterparts. Lawyers and judges would imbibe,
on the job, to keep up their eloquence.17 My own eloquence, such as it is,
just comes naturally.
Following a day at work, men would head to the taverns to drink and
socialize. Taverns were known as public houses because they were the
centres of social life. The number of taverns per-capita, by todays stand-
ards, is astounding. In the 1830s, Saint John, New Brunswick had one
13 Jan Noel, Canada Dry: Temperance Crusades Before Confederation (Toronto: Universi-
ty of Toronto Press, 1995) at 13-14.
14 The Napanee Beaver quoted in Graeme Decarie Something Old, Something New … :
Aspects of Prohibitionism in Ontario in the 1890s in Donald Swainson, ed, Oliver
Mowats Ontario (Toronto: Macmillan, 1972) at 156-157.
15 Noel, supra note 13 at 156.
16 Ibid at 13-14.
17 Ibid at 14.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 195
tavern for every 50 people. Toronto, one for every 119. I am sad to say
that Montreal lagged far behind at only one for every 258.18
Neither Quebec City nor Toronto had anything to be ashamed of, how-
ever. When English philanthropist Sir James Silk Buckingham toured
North America in the 1830s he reported that in one hours carriage ride in
Quebec City, he saw more … taverns and spirit shops with drunken in-
mates than we had witnessed in all our three years journey through the
United States.19 Of Toronto, Buckingham said: Absolute drunkenness
abounds to a greater extent in Toronto than in any town of the same size
in America.20
Though public drunkenness was common in the first half of the 19th
century, drunks were rarely thrown in jail. When they were, they encoun-
tered a pleasant and unexpected surprise. Many jailors were licensed to
sell alcohol.21 A drunken prisoner need not even have left his cell to keep
his buzz going.
The importance of alcohol to daily life reached the highest levels of
Canadian society. An 1838 committee report in the Nova Scotia Legisla-
ture found that the judiciary included a number of ruddy complexioned
gentlemen, a polite euphemism for alcoholics.22
Politicians were no different. When the Parliament of Upper Canada
sat for the first time in 1792, it held its proceedings in a tavern at Niaga-
ra-on-the-Lake.23 Not the only time, perhaps, that parliamentary debates
resembled an evening at the pub.
Our first prime minister, Sir John A. MacDonald, was prone to trum-
pet his own drinking. He once famously stated during an election cam-
paign: I know enough of the feeling of this meeting to know that you
would rather have John A. MacDonald drunk than George Brown so-
ber.24 MacDonald was elected, so it seems the public agreed.
Regulation of the consumption of alcohol has a long history in Canada,
beginning as early as 1648, but until the mid-19th century substantial re-
strictions were reserved for our First Nations.
18 Craig Heron, Booze: A Distilled History (Toronto: Between the Lines, 2003) at 27.
19 Noel, supra note 13 at 15.
20 Ibid at 125.
21 Heron, supra note 18 at 48.
22 Noel, supra note 13 at 41-42.
23 Heron, supra note 18 at 28.
24 Ibid at 77.
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For the white population, regulations prior to the mid-19th century
were common, but relatively insignificant. Licensing began in Quebec in
1648 and eventually spread to the other colonies.25 From the sources I
have examined, it seems, however, that police officers and magistrates
devoted little time to enforcementand still less to abstinence.
Other early laws targeted, somewhat comically, particular drinking
behaviours. One decree banned drunken drivingof horse drawn carriag-
es. Another decree in 1791 prohibited the sale of liquor to canoe-men
shooting the rapids of the Ottawa River.26 Yes, that great Canadian pas-
timedrunk canoeingwas almost drowned in its infancy!
Social attitudes toward alcohol began to change in the 1820s when
temperance societies were founded across the country to promote sobriety.
The backlash against alcohol was motivated by a number of factors, in-
cluding the opposition of religious groups and womens organizations. An-
other factor was the widespread belief that alcoholism was undermining
productivity. The consumption of alcohol had increased greatly during the
late 18th century.
The temperance movement initially targeted these social ills in small
steps. An early Montreal temperance society required its members to lim-
it themselves to six small glasses of liquor a day.27 Nevertheless, pam-
phlets, poems, and songs were distributed throughout the country to dis-
courage drinking. An 1866 song was typical of the movement:
We were so happy till Father drank rum
Then all our sorrow and trouble begun
Mother grew paler, and wept evry day
Baby and I were too hungry to play
Slowly they faded, and one summers night,
Found their dear faces all silent and white.28
These social pressures had some effect. By the 1850s, approximately
500,000 people had promised to abstain from alcohol.29 In Quebec, there
25 Ibid at 26.
26 Alcohol Policy Network, Milestones in Alcohol Policy, online: Alcohol Policy Network
27 Noel, supra note 13 at 156 [emphasis added].
28 Stella (of Washington), Fathers a Drunkard and Mother is Dead (1866) (music by EA
Parkhurst), online: Public Domain Music
29 Heron, supra note 18 at 54.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 197
was a dramatic, albeit temporary, drop in liquor production. Between
1847 and 1850, production fell from 645,000 to 80,000 gallons.30
B. The Legislation
Temperance advocates, however, quickly began to focus on legislative
efforts to curtail drinking. A flurry of legislative activity followed. British
Columbia passed the Habitual Drunkards Act,31 which permitted the
wives of drunkards to obtain legal title to their husbands property.32
Many provinces created interdiction lists, which criminalized the sale of
alcohol to known drunkards.33
Other restrictions were of a more amusing nature. Many provinces
barred gambling, the playing of games, and most forms of entertainment
from taverns.34 The intent was not to ban drunken billiardsas danger-
ous as that pastime may bebut to make men less likely to visit the tav-
ern. The effect of the law, however, defied its purpose: Once patrons ar-
rived at the tavern, there was, henceforth, nothing to do but drink.
Many municipalities also passed laws barring liquor licence holders,
though not drunkards, from running for public office.35
Over time, the objective of the temperance movement changed from a
reduction in drinking to the outright prohibition of alcohol. In response,
New Brunswick enacted outright prohibition in 1855. There were far too
many violators to prosecute, however, and riots ensued.
Other governments trod more carefully following New Brunswicks
experience. In 1864, the Province of Canada passed the Dunkin Act.36 The
Dunkin Act permitted municipalities to prohibit alcohol within town lim-
its if a majority of local voters supported the measure in a plebiscite. The
Act had the political attraction of passing the buck. The Province of Can-
ada could remain neutral on the controversial question of prohibition,
while empowering voters to decide whether their town should go dry.
After Confederation, the province of Ontario implemented the Crooks
Act in 1876, which revived the Dunkin Act model. Quick on its heels, the
30 Noel, supra note 13 at 173.
31 Habitual Drunkards Act, SBC 1887, c 11.
32 See Heron, supra note 18 at 138.
33 Ibid at 138.
34 Ibid at 158.
35 Ibid.
36 For a discussion, see ibid at 159.
198 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
federal government followed with the Canada Temperance Act.37 The
Canada Temperance Act extended the so-called local option to towns
across the country. If one quarter of a towns residents signed a petition
requesting prohibition, the Governor in Council would order the town to
hold a binding plebiscite.
In addition, in 1883, the federal government continued its foray into
the regulation of alcohol with the McCarthy Act. The McCarthy Act estab-
lished federal licensing requirements for many sellers of liquor, such as
saloons, ships, and wholesalers.38 Licensing had traditionally been a pro-
vincial responsibility.
C. The Courts
It was this flurry of legislative measures to regulate, reduce and pro-
hibit drinking that triggered many of the foundational federalism cases of
the late 19th and early 20th centuries. Two important constitutional ques-
tions needed to be answered. First, which level of governmentthe feder-
al or the provincialhad jurisdiction to regulate the sale, consumption,
and production of alcohol? Second, should any distinction be drawn be-
tween the power to regulate alcohol and the power to prohibit it entirely?
These questions would need to be answered despite an almost complete
lack of precedent to guide the courts.
And the questions were challengingboth politically and legallyfor
several reasons.
First, as we have seen, the role of alcohol in daily life was a conten-
tious social issue. Temperance advocates relentlessly lobbied governments
to enact prohibition. On the other hand, opponents of prohibition were
passionate and often violent. Author Craig Heron recounts that, in one
plebiscite in Toronto in 1877, hundreds of working men surrounded the
voting stations to intimidate supporters of prohibition. When the results
revealed that prohibition had been rejected, 10,000 people joined in a cel-
ebratory torch-light parade.39
A more comical example comes from Guelph. When residents voted
down prohibition, drinkers led a parade down the streets with a float fea-
turing Gambrinus, the Greek god of beer.40
37 RSC 1927, c 196. For a discussion, see Heron, supra note 18 at 160.
38 Liquor License Act, SC 1883, c 30, s 7.
39 Heron, supra note 18 at 160.
40 Ibid at 160-61.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 199
A second complicating factor was that there were pronounced regional
differences in attitudes toward alcohol. In 1898, the Laurier government
held a national plebiscite on the question of prohibition.41 This was the
first nationwide plebiscite in Canadian history. A slim majority of Cana-
dians, 51.2%, voted for prohibition. In the Maritimes, 82% of voters were
in favour. In Quebec, however, 80% were opposed. Some on both sides re-
main proud of that result to this day.
Third, the power to regulate alcohol brought several important politi-
cal advantages. Liquor fees and import duties were a significant source of
revenue. Craig Heron estimates that in the 1830s, import duties on alco-
hol provided between one quarter and one half of the Nova Scotia gov-
ernments annual revenue.42
Liquor licensing also enabled a rudimentary form of social welfare.43 A
poor widow falls on hard times? Give her a liquor licence, for free, so she
can earn a living selling alcohol.
Fourth, liquor licences were an important tool of patronage. The com-
peting federal and provincial bills were attempts to wrest control of the
liquor industry. For example, Oliver Mowat, the premier of Ontario, had
included provisions in the 1876 Crooks Act to transfer control of liquor li-
censing from municipalities to the provincial government, so that he could
control who received licences. 44
The final, and most significant, complication facing the courts was
that the British North America Act was unclear on which level of govern-
ment had jurisdiction over alcohol. Many provisions in sections 91 and 92
could plausibly serve as the basis for jurisdiction. The federal government
could point to its Peace, Order and Good Government power, its s. 91(2)
power over the Regulation of Trade and Commerce and its s. 91(27)
power over the criminal law.
The provincial government could point to its 92(8) power over Munic-
ipal Institutions, which perhaps authorized local prohibition. Section
92(9) gave the provinces jurisdiction over Shop, Saloon, Tavern, Auc-
tioneer, and other Licences in order to the raising of a Revenue for Pro-
vincial, Local, or Municipal Purposes. Section 92(13), as we all know,
gave the provinces jurisdiction over Property and Civil Rights. And sec-
41 See Canada: Prohibition Referendum 1898, online: Electoral Geography 2.0
42 Heron, supra note 18 at 24.
43 Noel, supra note 13 at 41.
44 Fermented or Spirituous Liquors Act, SO 1876, c 26, s 1.
200 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tion 92(16) placed within provincial power Generally all Matters of a
merely local or private Nature in the Province.
It was into this tempest of social, political, and legal cross-currents
that courts waded in the 1870s. The two critical questions they faced, it
will be recalled, were: Which level of government had the jurisdiction to
regulate alcohol; and which level of government had the jurisdiction to
prohibit alcohol in its entirety. The courts answers to the questions
shaped the Canadian Constitution in its infancy and later traced the u-
turns that constitutional interpretation sometimes appears to take.
The first question to reach the newly formed Supreme Court of Cana-
da was whether the provinces could implement licensing schemes to regu-
late wholesalers and manufacturers of alcohol. The case was Severn v.
The Queen.45 Ontario had passed a statute requiring wholesalers and
manufacturers to obtain licences from the provinceof course, the licenc-
es came with a hefty fee. The Ontario statute was one skirmish in the
long-running battle between Oliver Mowat and Sir John A. MacDonald.
In a 4-2 decision, the Supreme Court struck down the Ontario statute.
The majority found that manufacturers and wholesalers were involved in
national trade. National trade, as opposed to the merely local activity of
operating a tavern, fell within the federal governments trade and com-
merce power. It is in Severn that we begin to see how the federal Trade
and Commerce power will be distinguished from the provincial powers.
The Court rejected Ontarios argument that its licensing scheme fell
under the provinces section 92(9) power over licensing of saloons and tav-
erns. The Court relied heavily on pre-Confederation practice. Prior to
Confederation, provincial licensing regimes had been limited to retail
sales, such as at taverns. There was no indication that the drafters of the
BNA Act intended to increase provincial jurisdiction. The Court held that
any ambiguity in the meaning of sections 91 and 92 should be interpreted
in accordance with pre-Confederation practice.
Severn marked an initial victory for the federal government. The Su-
preme Court and the Privy Council (or the Board), however, would re-
turn to the issue of regulation on many occasions. The Privy Council first
turned its attention to a question that had plagued the provincial high
courts: which level of government had jurisdiction to enact prohibition?
Courts in three provinces had divided on the question. Courts in On-
tario and Nova Scotia held that the provinces had jurisdiction to prohibit
the sale of alcohol. The Nova Scotia Supreme Court found that prohibition
45 [1878] 2 SCR 70, 1 Cart 414.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 201
fell within 92(13)the provincial power over property and civil rights.46 It
explained that not only does drunkenness destroy the health and reputa-
tion, waste the property and ruin the happiness and comfort of those ad-
dicted to it, but it is the cause of most of the crimes committed in the
land.47 The Upper Canada Court of Queens Bench based its conclusion
on the provincial power over municipal institutions.48
The New Brunswick Supreme Court reached the opposite conclusion.
It held that the federal government had exclusive jurisdiction to enact
prohibition under its trade and commerce power.49
Five years later, in 1880, the Supreme Court of Canada agreed. In The
Queen v. Fredericton50 the Court held that the Canada Temperance Act
fell squarely within the federal governments trade and commerce power,
and added two important findings unnecessary to this result.
First, the Court held that provincial governments could not prohibit
the sale of alcohol because provincial prohibition would interfere with the
federal governments ability to collect import duties on alcohol, if it so
chose. Second, the Court gave birth, in these terms, to the enduring doc-
trine of paramountcy: [T]he right to regulate trade and commerce, said
the Court, is not to be overridden by any local legislation in reference to
any subject over which power is given to the Local Legislature.51
The Supreme Courts decision in Fredericton was not appealed to the
Privy Council. Only two years later, however, the Privy Council addressed
the vires of the Canada Temperance Act in Russell v. The Queen.52 The
Boards approach differed markedly from modern practice. Rather than
determining whether prohibition fell under an enumerated power in ei-
ther section 91 or 92, the Board only considered whether the power fell
under section 92. If it did not, the Board reasoned that the power neces-
sarily fell under the federal governments peace, order, and good govern-
ment power (POGG). We see here an expansive interpretation of the re-
sidual nature of the POGG clause: it covers all powers not held by the
provinces.
Perhaps unsurprisingly, the Board found that the power to prohibit
was not contained in section 92. It rejected the provinces argument that
46 Keefe v MacLennan (1875), [1876] 11 NSR 5 [Keefe].
47 Ibid at 11.
48 Re Slavin and Orillia, [1875] 36 UCQB 159.
49 R v Justices of the Peace of the County of Kings, [1875] 15 NBR 535.
50 The Queen v Fredericton (Mayor), [1880] 3 SCR 505, 2 Cart 27 [cited to SCR].
51 Ibid at 540-41.
52 [1882] 7 App Cas 829, 8 CRAC 502 [cited to App Cas].
202 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the provincial power to raise revenue through retail licensing extended to
prohibition. Prohibition could not fall under the power to raise revenue
because prohibition, by definition, foreclosed the possibility of licences.
The Privy Council also rejected the argument that prohibition fell under
the provincial power to regulate property and civil rights. Prohibition is
not a matter in relation to property and its rights, but one relating to
public order and safety.53 Notice that the Nova Scotia Supreme Court had
also characterized prohibition as matter of order and safety, but had used
that very characterization to find provincial jurisdictionthe opposite
conclusion.54
The Board also rejected the argument that the Canada Temperance
Act fell within the provincial power over matters of a local nature. Alt-
hough the Act empowered local prohibition, the Act applied to communi-
ties across the country. Prohibition was also a national evil. The Privy
Councils interpretation radically narrowed the provinces power over local
matters: Any federal statutes with national reach would be shielded from
the provinces power under section 92(16) of the BNA Act to legislate in re-
lation to Matters of a purely local or private Nature in the Province.
Les dcisions de la Cour suprme dans Severn et Fredericton, et celle
du Conseil priv dans Russell, ont constitu des victoires dcisives pour le
gouvernement fdral, qui jouissait dsormais dune comptence exclusive
pour rglementer la fabrication et la vente en gros de lalcool, et aussi
pour instituer la prohibition. En outre, le pouvoir du gouvernement fd-
ral en matire de paix, ordre et bon gouvernement avait t interprt
de manire large, tandis que celui des provinces lgard des matires
dune nature locale avait t grandement restreint.
To widespread surprise, however, the law took a u-turn, and the Privy
Council issued a series of decisions scaling back federal power. The first
was Hodge v. The Queen.55 In Hodge, a tavern owner had been convicted
of operating a billiards table in his tavern. The law in question was one of
many intended to make taverns less attractive places for socializing. The
owner challenged his conviction on the ground that the regulation fell
outside provincial jurisdiction.
The Privy Council rejected his claim by introducing the double aspect
doctrine. [S]ubjects which in one aspect and for one purpose fall within
sect. 92, may in another aspect and for another purpose fall within sect.
53 Ibid at 838-39.
54 See Keefe, supra 46 at 10-12.
55 (1883), [1883-1884] 9 App Cas 117, 9 CRAC 13 [cited to App Cas].
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 203
91.56 The Board found that although the billiards prohibition was related
to trade and commerce, its primary purpose was maintaining local order.
The regulation thus fell within provincial jurisdiction.
Hodge also addressed a second issue. The Board laid to rest concerns
that the provincial legislatures were not fully sovereign within their legis-
lative spheres. The provinces, said the Board, had authority as plenary
and as ample within the limits prescribed by sect. 92 as the Imperial Par-
liament in the plenitude of its power possessed and could bestow.57
Hodge thus expanded the scope of provincial jurisdiction and defined
the nature of that jurisdiction.
The federal government was dealt another defeat in the McCarthy Act
Reference.58 The McCarthy Act, as I mentioned earlier, was Sir John A.
MacDonalds attempt to wrest control of liquor licensing from the provin-
cial governmentsin particular, Oliver Mowats government in Ontario.
Both the Supreme Court and Privy Council struck down the Act, without
deigning to give reasons. Together, Hodge and the McCarthy Act Refer-
ence made clear that that the provinces had exclusive jurisdiction to regu-
late the local sale of alcohol.
The provincial governments soon completed a trifecta of victories. In
the Local Prohibition Reference,59 the Privy Council had to decide whether
provincial governments had jurisdiction to enact prohibition. In dispute
were the many provincial statutes that empowered towns to prohibit the
sale of alcohol. This issue, of course, was nearly identical to the issue in
Russell. There, the Privy Council considered whether the federal govern-
ment had jurisdiction to enact prohibitionand found that it did. Moreo-
ver, the Board had grounded federal jurisdiction on its finding that sec-
tion 92 did not grant the provinces the jurisdiction to prohibit the sale of
alcohol. Surely, the Board could not now find that the provincial govern-
ments had jurisdiction?
Well, the Privy Council in fact did exactly that. The Board held that
both the provincial and federal governments had concurrent jurisdiction
to enact prohibition schemes. The Local Prohibition Reference is one of the
earliest judicial decisions granting both the federal and provincial gov-
ernments power to legislate in relation to the same matters.
56 Ibid at 130.
57 Ibid at 132.
58 Unreported. For a discussion, see Risk, supra note 4 at 715-21.
59 Supra note 5.
204 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
There are several important points raised in the Reference, although
the reasoning at times prompts some head scratching. First, the Privy
Council found that the provinces could prohibit the sale of alcohol within
their borders under either their property and civil rights power or their
power over matters of a local nature. Oddly, however, the Board held that
it could not fall under bothand refused to say which of the two powers
applied!
Second, the Board limited the trade and commerce power. The trade
and commerce power granted the federal government the power to regu-
late, but not the power to prohibit. Thus, the federal government would
have to ground its jurisdiction to prohibit in the peace, order and good
government clause.
Third, the Privy Council defined the peace, order and good govern-
ment power. This power granted the federal government jurisdiction over
matters of national concern. A matter was of national concern if it was
unquestionably of Canadian interest and importance and did not
trench upon provincial legislation with respect to any of the classes of
subjects enumerated in s. 92.60
This national concern test would seem to suggest that the peace, or-
der and good government power could not form the basis of federal juris-
diction, since the Board had already found that section 92 granted the
provinces the power to prohibit. Nevertheless, the Board found, again
without explanation, that the federal government did have the power to
enact prohibition laws under the peace, order and good government
clause!
Fourth and finally, the Board embraced the principle of paramountcy.
Any provincial prohibition statute that came into conflict with the federal
prohibition statute would be rendered inoperative. Of course, that led to
the following question: Were the federal and provincial statutes necessari-
ly in conflict? The Board found that they were not. Each prohibition re-
gime was triggered in a town only by a majority plebiscite vote. Until a
majority vote, neither statute was in conflict with the other. Once a town
triggered the federal regime, however, the principle of paramountcy ren-
dered the provincial scheme inoperative in that town.
The Local Prohibition Reference was followed by a series of liquor cas-
es that affirmed provincial rights. In Manitoba License Holders61 and Nat
Bell Liquors62 the Board upheld provincial prohibitions on the sale of al-
60 Ibid at 360.
61 Supra note 6.
62 Supra note 8.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 205
cohol in Manitoba and Alberta, even though the laws reduced the national
demand for imported liquorand thus decreased the import duties the
federal government collected. The key to the constitutionality of both
statutes was that they only applied to intra-provincial sales of alcohol.
They expressly did not prohibit interprovincial or international transac-
tions in alcohol.
Thus the Board attributed jurisdiction over intra-provincial sales to
the provinces, and jurisdiction over inter-provincial sales to Parliament.
Despite its unrestricted wording, the federal trade and commerce power
had been limited to a power over only interprovincial trade and com-
merce. Ironically, during this period in the United States, the narrower
federal power over interstate commerce had effectively expanded into a
power over all trade and commerce.
All of these cases set the stage for the great legal denouement of the
period: the 1946 case, Canada Temperance Federation.63 For the third
time, the Judicial Committee of the Privy Council considered which level
of government had jurisdiction to prohibit alcohol. In Russell, it had held
that the federal government had exclusive jurisdiction to prohibit. In the
Local Prohibition Reference, it had held that both the federal and provin-
cial had concurrent jurisdiction. Now, the Board considered whether to
scale back federal jurisdiction even further. At issue, once again, was the
Canada Temperance Act. The Canada Temperance Federation challenged
the Act on the grounds that there was no enumerated power that support-
ed federal jurisdiction. It expressly asked the Board to overturn Russell
and the Local Prohibition Reference by declaring that only the provinces
had the jurisdiction to prohibit alcohol.
The Board disagreed and reaffirmed that both the federal and provin-
cial governments had concurrent jurisdiction. Two elements of the Boards
reasoning are of prime importance. First, it developed the modern formu-
lation of the national concern branch of the peace, order and good gov-
ernment power. The true test must be found in the real subject matter of
the legislation: if it is such that it goes beyond local or provincial concern
or interests and must from its inherent nature be the concern of the Do-
minion as a whole64 then it will fall within the peace, order and good gov-
ernment power.
The second issue was whether this national concern branch justified
federal jurisdiction over alcohol. This was an important but by no means
an easy question. Yet surprisingly, the Board held that it need not answer
63 Supra note 7.
64 Ibid at 205.
206 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
it. Russell had already decided 60 years earlier that prohibition was a
matter of national concern. For the Board, the decision was firmly em-
bedded in the constitutional law of Canada, and it is impossible now to
depart from it.65 Thus, the great question of prohibition essentially ended
in a tie: concurrent jurisdiction.
After Canada Temperance Federation, liquor cases continued reaching
the courts for several decades. For example: the 1980 case, Labatt Brew-
ing Co. v. Canada,66 where the Supreme Court held that the federal gov-
ernment did not have jurisdiction to prescribe standards for light beers.
To discuss all of these cases today would be an imposition on your consti-
tution and mine. I should note, however, that I am open to returning reg-
ularly to McGill to discuss the effect of other intoxicating substances on
the constitution. Marijuana perhaps? LSD? There is a lot of material to
work with.
II. One of F. R. Scotts Legacies: Roncarelli
Any history of the liquor cases, however, would be incomplete without
a brief discussion of the most famous liquor case of alland the role that
F. R. Scott played in it.
En 1947, le premier ministre du Qubec Maurice Duplessis a ordonn
la Commission des liqueurs provinciale de retirer au restaurateur
Frank Roncarelli son permis de vente de spiritueux, apparemment pour le
punir de son appui aux Tmoins de Jhovah. Le gouvernement Duplessis
avait lanc une campagne denvergure provinciale contre les Tmoins,
qui il reprochait de remettre en question les enseignements traditionnels
du christianisme. Des milliers de personnes avaient t arrtes pour le
simple fait davoir distribu des brochures sans permis. Roncarelli, lui-
mme un Tmoin de Jhovah, stait port caution pour plus de 390 core-
ligionnaires qui avaient t arrts. Le premier ministre Duplessis a or-
donn lannulation du permis de vente de spiritueux de Roncarelli dans le
but de punir ce dernier et de provoquer la ruine de son restaurant, afin
quil nait plus les moyens de se porter caution.
Roncarelli sued Duplessis, and the case reached the Supreme Court.67
A recent issue of the McGill Law Journal has a wonderful collection of es-
says on the legacy of the Courts decision in that case.68 In a characteristic
act of courage, F. R. Scott represented Roncarelli, assisted by A. L. Stein,
65 Ibid at 206.
66 Labatt Brewing Co v Canada (AG) (1979), [1980] 1 SCR 914, 110 DLR (3d) 594.
67 See Roncarelli v Duplessis, [1959] SCR 121, 16 DLR (2nd) 689 [Roncarelli cited to SCR].
68 (2009) 55:3 McGill LJ.
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 207
an experienced trial lawyer and tenacious cross-examiner. I say courage
for three reasons. First, representing Roncarelli required standing up to
the most powerful premier in Quebec history. Second, it also meant pub-
licly defending a Jehovahs Witness at a time when the religion was re-
viled in Quebec. Neither professional peril nor personal sacrifice could de-
ter Frank Scott from his own personal engagement in a just cause. Third,
Duplessiss decision to revoke Roncarellis licence was par for the course
in Canadian politics. Since their inception, liquor licences had been used
as patronage tools to reward supporters and punish opponents. As we
have seen, it was precisely for this reason that the jurisdictional debates
over liquor regulation were so important. In representing Roncarelli,
Frank Scott disregarded decades of practice and convention.
Frank Scotts brilliant advocacy won a historic judgment that few oth-
ers could have achieved. The Supreme Court agreed with Roncarelli and
issued a seminal endorsement of the rule of law: In public regulation of
this sort there is no such thing as absolute and untrammelled discre-
tion.69 The Court continued: what could be more malicious than to pun-
ish this licensee for having done what he had an absolute right to do in a
matter utterly irrelevant to the Liquor Act?70 It may be that no lawyer
other than F. R. Scott could have obtained such a historic judgment.
Roncarelli v. Duplessis signals the progression in the liquor cases,
from matters dealing with jurisdiction to matters dealing with human
rights. In recent decades, we have seen dozens of key criminal cases in-
volving liquor. The intoxication defence; searches and breathalysers; the
question of consent. Even the right to counsel owes itsdare I say
constitutional maturity to alcohol. In R. v. Therens,71 the Supreme Court
held that a defendant is entitled to be informed of his right to counsel un-
der section 10(b) of the Charter when instructed to accompany an officer
to a police station for a breathalyser test. Therens stands as a foundation-
al case on the definition of detention and the scope of the rights of the ac-
cused.
Conclusion
That concludes our brief tour of alcohol and its impact on the Canadi-
an constitution. What can we take away from the liquor cases we have
discussed today? In my view, at least three things.
69 Roncarelli, supra note 67 at 140, Rand J.
70 Ibid at 141.
71 R v Therens, [1985] 1 SCR 613, 18 DLR (4th) 655.
208 (2011) 57:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
First, we see the constitutional legacy that the liquor cases have left.
It is in these cases that we are introduced to paramountcy, double aspect
doctrine, concurrent jurisdiction, and the reach of Peace, Order, and
Good Government, local matters, trade and commerce and property
and civil rights. And of course, the limits on governmental discretion.
Second, from these cases we see the u-turns, pauses, and dead ends
that inevitably arise during the interpretation of constitutional questions
of first impression. The courts are perhaps not the first to have had diffi-
culty walking in a straight line after encountering alcohol. While much of
the reasoning in these cases has been abandoned, by the time we reach
the Local Prohibition Reference, the final results bear resemblance to
modern law.
Third, we see courts responding to, and grappling with, the social and
political pressures of the time. The liquor cases frequently turn on the
courts characterization of alcohol as a national evil, a local evil, a matter
of order and safety, or merely a good to be traded in commerce. Resolving
that question inevitably drew the courts into the passionate social debates
of the late 19th century. Similarly, we see the courts responding to the in-
tense jurisdictional fight between the federal and provincial governments.
It is perhaps not surprising that the Privy Council come down right in the
middle in the Local Prohibition Referenceconcurrent jurisdiction for all.
The challenge, of course, was that courts needed to grapple with these
social and political pressures while simultaneously addressing founda-
tional issues of constitutional law, such as paramountcy and double as-
pects. Would our constitutional law have developed differently if it had
been some other, less socially divisive, issue that had prompted early in-
terpretation of our constitution?
I am uncertain of the answer, but I can say with confidence that alco-
hol has had a marked and lingering effect on Canadas constitutional de-
velopment.
And I can say with confidence as well that my account to Frank Scott
for one poem was sent to the wrong address. I should have sent it to the
poem, not the poet, as Frank himself explained:
POEM TALKING TO POET
Write me a poem, you said.
So I sat by the window, minding my business.
After a little you asked,
Will it be modern and free?
I cannot tell you before hand, I answered.
I am not master here.
I watched the trees carve nightmares in the night,
THE EFFECT OF ALCOHOL ON THE CANADIAN CONSTITUTION 209
[Then it came, and so it was,
Heard dusty winds borrow the sound of tears.
And Lo! There it was!]
Here is your poem, I said.
I do not think it will live long.
You sighed, then trembled on my fingertips,
Being yourself the writing on the page.
