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HER MAJESTY THE QUEEN [X COUNCIL Hon&on : I'RINTF.n nV WII.t.IAM imoWN it CO. r.IMTTF.I), 3()-42, ST. .MARY AXK, AND 40-41, OLD BHOAU STBKKT, E.C. IHSlo. 111.11!! I .i I I II n.ii-i null lllll)lfl.|ll,^W»fPPI^"^^^^^^l"^^iWW»» ^^mpMMipppPIWIMIP mmmmmm I'PiHrpHIWJKf 'llilHin •^PP t TABLE OF CONTENTS. Case of The Province of Ontario (AppellantH) 5 Case of The Dominion of Canada (Respondents) 10 Case of The Distillers' and Hrewers' Association of Ontario (Respondents) 15 Appendix referred to therein 21 Arguments— ■ '' . First Day. — Argument of Mr. Maclaren, Q.C, for Ontario 28 Secmnl Day. — Same continued 119 Ai'gument of Mr. Haldane, Q.C, M.P., for Ontario HO • Argument of Mr. Newcombe, Q.C, for The Dominion 162 Third Day. — Argument of Mr. Blakk, Q.C, M.P., for The Distillers'. and Brewers' Association... ^14 Fourth Day. — Argument of Mr. Maclaren, Q.C, in reply... ,S27 JiTDOMENT of the Lords of the Judicial Committee of the Privy Council y54 // u2 mmmmm wmm . (• In t\}t |)rib5 Counril. No. 37 of 1805. FROM THE SUPREMK COURT OF CANADA. Uetwkkn the ATTOUNEY-(iENKHAL FOR OxNTAUJO Ai,p,lla,u AND (1) THE ATTORNEY-GENERAL FOR THE DOMINION OF CANADA, and (2) THE DISTILLERS' AND BREWERS' ASSO- CIATION OF ONTARIO - - - Re.y,o,i,l,;its. In the Matter of certain Questions referred to the Supreme Court of Canada by His Exckllency THE GOVERNOR-GENERAL OF CANADA. ; ;, '^ ., . ,.. SuB.iECT : V PROVINCIAL JURISDICTION. PROHIBITORY LIQUOR LAWS. ^ppeUant'0 dtafit. 1. This is an !i|)i)eal brought l)y special leave of Her Majesty in Council against the judgment of tlu- Supreme Court of Canada given on the 15th .lainiary 1895, in the matter of certain questions referred to that Court hy His Excellency the Governor-General of Canada. 2. Under the ju-ovisions of the Act of th. 7 " of 8'2n(l Victoria, chjiptffr 32, Irmiij^ the Tavern and " Shop IjicenHe Act of 18r)H, hut was afterwards omitted •' in suhHe(|uent coiu,x, " of the same Act, and save in so far as licenses for sales " in such (piantities are re(|,iired by the Tiicjnor License "Act* and tlu! said section IH and all by-laws which " have heretofore been madi' or shall hereafter he made " under the said section IH, and })urporting to prohibit " the sale by retail of spirituous, fermented, or other *' numufactnred li(iuors in any tavern, inn, or other house " or place of public entertainment, ami prohibiting alto- " gether the sale thereof in shops and i)laces other than " houses of public entertainment, are to be construed as " noc purporting or intended to affect the provisions con- '* tained in the said section 252, save as aforesaid and as " if the said section IH and the said by-laws had exj)ressly "so declared." 6. The said Court at the said hearing was composed of live judges, and the said (piestions wer<' on the 15th .lanuary, lHt)5, all answered in the negative by three of the i-aid judges, the other two judges being of the opinion that all the said questions should be answered in the affirmative except ques- tions three and four. 0. Previous to the passing of the British North America Act, 18()7, the Legislatures of the several Provinces which were formed into the Dominion of Canada had conferred upon the municipalities within the resi)ective Provinces large j)ro- hibitory powers with respect to the traffic in intoxicating liquors, and ever since the said date the said traffic had been prohibited in a large i)ortion of the Dominion under and by virtue of such legislation, and of similar legislation by the several Provincial Legislatures. 7. The Appellant humbly subuiits that the present ap- l.'mnnr I'mhihitlim ApiH'al, 1H".)5. IM'iil should !»*' jillowf'd, iiiul tlw said of the said section, and do not i ,me with- in any of the classes of siihjects enumerated in section 01 of the said Act. JOHN J. MAC'LAHKN. J. K CAHTWIUGHT. 10 Liquor Prohibition Appeal, 1895. easie o{ ttt ISommfon of eanatra> ONE OF THE RESPONDENTS. 1. This is an Ap})ertl from the judgment of the Su])reme Court of Canada, rendered on the 15th day of January 1895, upon certain (juestions referred hy the Governor-CTeneral in Council to the Supreme Court of Canada for hearing and consideration, ))ursuant to "The Supreme and Exchequer (^ourts Act," (Revised Statutes of Canada, Cha[). 185) as amended hy an Act of the Parliament of Canada passed in 1891 (54-55 Vic, Chap. 25, Sec. 4). 2. The questions referred are as follows : — (1) Has a Provincial Legislature jurisdiction to prohihit the sale within the Province of spirituous, fermented or other intoxicating li(piors ? (2) Or has the Legislature such jurisdiction re- garding such [)ortions of the Province as to which the Canada Temperance Act is not in o})eration ? (8) Has a Provincial Legislature jurisdiction to ))rohihit the manufacture of such licpiors within the Province ? (4) Has a Provincial Legislature jurisdiction to prohihit the importation of such litpioi's into the Province ? (6) If a Provincial Legiiilature has not jurisdiction to prohihit sales of such liipiors, irres))ective of (piantity, has such Legislature jurisdiction to prohihit the sale hy r«^tail, according to the delinition of a si>je by retail, either in Statutes in force in the Province at the time of Confederation, or any other definition thereof? (()) If a Provincial Legislature has a limited jurisdic- tion only as vegards the prohii)iti()n of sales, has the Legislature jurisdiction to prohibit sales subject to the 8afeak.MHMHUaJL......,..l. . .1 ^p^ Liquor I'rohiliitiou Appral, 1895. 11 limits provided by the several Huh- sections of the 99tli Section of " The Canada Temperance Act " or any of them (Revised Statutes of Canada, Chap. 10(), Sec. 99) ? (7) Had the Ontario Legislature jurisdiction to enact the 18th Section of the Act passed hy the Legisla- ture of Ontario in the 53rd year of Her Majesty's reign, and intituled " An Act to improve the Licpior License Acts," as said section is explained hy the Act passed hy the said Legislature in the 54th year of Her Majesty's reign, and intituled " An Act respecting Local Option in the matter of liquor selling '^ ■ ; 8. At the hearing of the C'ase before the Supreme Court of Canada, constituted of the (!hief Justice Sir Henry Strong, and Justices Fournier, Gwynne, Sedgwick and King, Couns<^l appeared for the Dominion and for the res[)ective Provinces of Ontario, Quebec and Manitoba. Counsel also ai)peared on behalf of The Distillers' and Brewers' Association of Ontario, that Association being represented under the authority of Sub-Sec. 4 of Sec, 87 of the Supreme and Exchequer Courts' Act. Afterwards written opinions were delivered by each of the five Judges wJio heard the C'ase, in the result of which (piestions numbered 8 and 4 were unanimously answered in the negative, while as to each of the remaining (piestions, a majority of the Judges gave a negative answer, the Chief Justice and Mr. Justice Fournier holding, however, that they should be answered in the affirmative. 4. From this decision the iVttorney-Ceneral of Ontario obtained sjjecial leave to appeal. The Kespondents on the Appeal are The Dominion of Canada and The Distillers and Brewers' Association of Ontario. 5. It is submitted on behalf of the Dominion that a Provincial Legislature has no authority to i)r()hibit the sale, manufacture or im])ortation of spirituous, fermented or other intoxicating liquors, and that it has no authority to prohibit the sale of such liquors either by wholesale or retail or subject to the exenn)tions established by the 99th Section of the Canada Temperance Act, and that the several (piestions contained in the Case submitted have therefore been i)roperly answered in the negative. In support of this view the 12 Liquor Prohibition Appntl, 1806. Dominion will rely iii)on the grounds stated in the opinions of the Judges of the Supreme Court, and upon the following among other — REASONS. 1. Because the sul)ject of prohibition of the liquor tratiic, either as to manufacture, importation or sale does not fall within any of the matters for Provincial Legislation enumerated in Section 92 of ' ' The British North America Act, 1867." 2. Because the exclusive power of the Legislatures with regard to nninicipal institutions only enables the Legislature to establish regulations for the carrying on within their respective Provinces of such institu- tions, and any authority which the Legislatures may validly confer upon them nmst be derived through or have relation to the other subjects enumerated in Section 92. These do not include power to prohibit. 3. Because, whilst the Legislatures may have power under the Article "Municipal Institutions' or as part of thei)olice power to make regulations for the carrying on within the respective Provinces of any lawful trade, they have no power to declare any trade unlawful or to prohibit the carrying on of the same, or to enact i)rohibitory laws containing as to their respective Provinces provisions similar to those of "The Canada Temperance Act." 4. Because to enable a Province to pass a prohibitory law for itself by reason of the authority of class No. 16 of Sec. 92, it would be necessary to construe the words "local or ]i)rivate" as including provincial, which construction is negatived upon a consideration of all the provisions of Section 92. Prohibition for the Province would be rather a public and })rovincial or public and general matter, than merely local or private. The expression "merely local or private nuitters in the Province " is intended to describe something less than a matter of eijual and general application and interest to the entire Province. ■ API Liquor Prohihltlou Appvul, 1895. 13 5. Because the subject of })rohil)itioii strictly relates to matters within the exclusive authority of the Parliament of Canada, under Section ',)1 of " The British North America Act." {a) It affects the peace, order and good govern- ment of Canada in relation to matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces. {h) It necessarily conies within the scope of Dominion authority in the regulation of trade and commerce. The Supreme Court of Canada so held in the case of Firdrrirfon v. Tlir (Jid'cii, 8 Supreme (burt of Canada Reports, 50f5, from which RiiHsell v. Thr Qiurn was in effect an Ajopeal. ((■) It affects and has direct relation to (Criminal law, which is one of the enumerated classes of subjects assigned exclusively to the Parliament of Canada. (). Because trade and commerce would be affected by legislation restraining importation and manufacture. As a matter of trade and conmierce the right to sell is inseparably connected with the law permitting importation, to which, with equal force, may be added manufacture . 7. Because before, at the time, and ever since the Union, a considerable portion of the pubHc revenue has been derived from the customs and excise duties upon alcoholic liquors. The Dominion, under the terms of Union, assumed the imblic debt and the principal expense of the public service, besides undertaking to ))ay large subsidies to the Provinces, and became entitled to levy customs and excise duties, which had always been })rincipal sources of revenue. 8. Because the field of legislation with regard to prohil)i- tion has been occupied by the enactment of the Canada Temi)erance Act, which still remains in ■ ' force, and there is therefore no room for a Provincial . ' Law, 14 Liquor Prohibitum Appeal, 1895. 5). Because Parliament having declared that it is desirahle that the/e should he uniform legislation in all the Provinces respecting the traffic in intoxicating liquors, and that it is expedient for the peace, order and good government of C'anada that the voters in every County or City in Canada should have the right to elect whether or not prohihition, as defined hy the Canada Teni])erance Act, shall come into effect in such County or City, has given effect to the voluntary principle. If the Provincial Legislatures may, nevertheless, enact a compulsory system, the power of Parliament, which has heen hitherto upheld, is Jenied. 10. Because there is no legal or absolute destinction between wholesale and retail trade, and the distinc- tion between them whatever it may be, cannot be made a dividing line of piohibitive authority as between Parliament and the Legislatures. 11. Because definitions of sale by retail in Provincial Statutes at Confederation cannot affect the construc- tion of the Union Act, which makes no reference to retail, nor other reference which renders it necessary to look for a definition of the word. Besides upon the Provincial legislation existing at the Union it appears that there was no uniformity of statutory definition. 12. Because Parliament and the Provincial Legislatures have under the British North America Act no con- current authority except as to agriculture and immigration, under the provisions of Section 96. 13. Because the fact that particular enactments were in force at the Union cannot enlarge the powers of the Legislature of Ontario under the British North America Act. 14. Because Section 18 of the Ontario Act is inconsistent with and in conflict with the provisions of the Canada Temperance Act. E. L. NEWCOMBE, H. W. LOEHNIS. ■pn ■i;sVKi?:^3ies7r^>x^*9 Liquor f'rohibition Apjiral, 1895. 16 (Unit for tfte 9Rrgponttent^t THE DISTILLERS" .t J3REWERS' ASSOCIATION OF ONTARIO. 1. This is an Appeal from a decision of the Supreme Court of Canada, upon a reference to that Court hy His Excellency the Governor-General of Canada, for hearing and consideration of the following questions : — 2. (1) Has a Provincial Legislature jurisdiction to prohihit the sale within the province of spirituous fermented or other intoxicating liquors ? (2) Or has the Legislature such jurisdiction regard- ing such portions of the province as to which the Canada Temperance Act is not in operation ? (3) Has a Provincial Legislature jurisdiction to prohibit the manufacture of such liquors within the province ? (4) Has a Provincial Legislature jurisdiction to prohibit the importation of such liquors into the province *? (5) If a Provincial Legislature has not Jurisdiction to prohibit sales of such liquors, irrespective of quantity, has such Legislature jurisdiction to prohihit the sale by retail according to the definition of a sale by retail, either in Statutes in force in the Province at the time of confederation, or any other definition thereof ? (6) If a Provincial Legislature has a limited jurisdiction only as regards the prohibition of sales, has the Legislature jurisdiction to prohibit sales subject to the limits provided by the several sub-sections of the 99th section of " The Canada Temperance Act" or any of them (Revised Statutes of Canada, Chapter 100, Section 99). (7) Had the Ontario Legislature jurisdiction to enact 16 Litiaar I'rohilillioii Appnil, 1895. the 18th Section of the Act jjassed hy the Legislature of Ontario in the Hfty-third year of Her Majesty's reign and intituled " An Act to improve the Liquor License Acts " as said section is explained hy the Act passed hy the said Legislature in the fifty-fourth year of Her Majesty's reign and intituled •' An Act respecting Local Option in the matter of Liquor selling ' ' ? For convenience of reference the enactments referred to in questions ((>) and (7) are appended to this case. 8. Pursuant to leave given hy the Supreme Court under the statute in that hehalf the Distillers' and Brewers' Association of Ontario (hereinafter called " the Association ") w^ere represented at the hearing hefore that Court. 4. At such hearing were also represented the Attorneys- General of Canada, Ontario, Quebec, and Manitoba. 5. In the result the Court answered all the questions in the negative in accordance with the contentions of the Association, the answers being unanimous as to questions (///) and (iv), and by a majority as to the other questions. (). From this decision the Attorney-General of Ontario obtained leave to appeal, and on that appeal the Ues})ondents are the Attorney-General of Canada and the Association. 7. The Association submits that the decision of the Supreme Court was right and should be confirmed for the reasons stated in the judgments of the majority of the Supreme Court and on the grounds following. * "- REASONS. 1. Upon the true construction of the British North America Act as settled by decision of the Privy Council the Provinces have no legislative authority on any matter unless it is comprised within some of the subjects enumerated in See. 9*2 of the Act. 2. Upon such construction as so settled, the Provinces • have no such authority (even if the nuitter might Otherwise be so comprised;, in any case wherein, or Liquor I'roliibition Apixuil, 1M1)5. 17 5. to any extent whereby, the exercise of such antliority would interfere with the exercise by Canada of any authority comprised within any of the articles of Sec. 01 "of the Act. Upon such construction ar* so settled, the sul)ject of the prohibition of the trade of sellinj^ intoxicating li(piors, even by retail, in ('anada, is not comprised within Sec. 92. It is submitted that a fortiori the prohibition of the wholesale trade in liquors, or of the business of manufacturing or importing liquors is not comprised within Sec. 92. Upon such construction as so settled, each of these subjects not being comprised within Sec. 92, is within the authority of the Parliament of Canada, under its general i)Owers conferred by Sec. 91 "to make laws for the })eace, order and good government of Canada, in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces. Among the subjects placed by Sec. 91 within the exclusive authority of (Canada are tlie regulation of trade and commerce, the public debt, the raising of money oy any mode or system of taxation, and the borrowing of money on the public credit. By the Act, Canada became bound to i)ay the heavy provincial debts, and to provide for the Provinces large annual subsidies. One of the main objects of the Act was to place the trade and commerce of the various Provinces under the general control of the central authority, and thus to promote the removal, and to prevent the creation of artificial barriers and diversities in this regard between the Provinces. The whole system of taxation by the Provinces before Confederation was, and that of Canada since has been and must long continue, indirect and large sums had before and have since been yearly levied bv duties of Customs and Excise in order to meet 18 Liquor Proliihifinn Appeal, 1805. the public obligations iiiul to maintain the public services. The ability of Canada to accomplish these and other national objects was and is plainly dej)endent on her possession of exclusive powers over trade and commerce which she would not enjoy were it within the legislative authority of the Provinces to })rohil)it the manufacture, imjjortation, or sale of goods, and thus while creating artificial and prejudicial barriers to trade and diversities of trade conditions to [)revent Canada from obtaining the duties of Customs and Excise on which she must necessarily depend for the performance of her national obligations. The Customs and Excise duties on liquor, like those on tobacco were before confederation as they have ever since continued a substantial and necessary part of the fiscal resources of Canada, and an intolerable condition might be produced if each of the Provinces had power to cut oft" from C!anada her receipts from these duties within the limits of such Provinces. It is obvious that the same Legislature which has power over these subjects in their trade and revenue aspects should also control them in any other aspects as to which the existence of a control elsewhere might be fatal to the execution of the powers conferred for trade and revenue purposes. It is submitted that on the true construction of the Act, the Parliament of C'anada has been granted the exclusive Legislative Authority over the sul)jects, as part of "the regulation of Trade and Commerce," and that thus, even if apart from such grant they or some of them might have been comprised within the assignment to the Provinces, they are yet by virtue of the grant vested in Canada. 7. Upon the true construction of the British North America Act as established by decision of the Privy Council there exists a broad distinction between an authority to prohibit trades as unlawful and an Liquor ProJiihItioii Appnil, 1805. 19 autliority to prescribe conditions on which lawful trades may he conducted. And such latter authority may, within certain limita- tions, he vested in the Provincial Jje^nslatures, under the Article "Municipal Institutions," as |)art of the police power, or under some other Article of Sec. 92, quite consistently with the exclusive vesting in Canada of the authority to prohibit. 8. There is here no concurrent jurisdiction ; nor are there two different aspects in which the subject can be viewed so as to bring it in one aspect within Canadian, and in the other within Provincial Legislative power. It is the same subject under the same aspect. 9. There is here no room for the contention that there may exist a Provincial Jurisdiction unless and until the Parliament of Canada occupies the field. 10. But if this were otherwise, yet the Parliament of Canada has already occui)ied the field, by legislation which i)rovides certain conditions and limitations under and to the extent of which sales are prohibited all over Canada, and has thus in effect legislatively decided that, save under and to the extent of these conditions and limitations, sales shall not be pro- hibited anywhere in Canada. 11. On the true construction of the British North America Act, as settled by decision of the Privy (buncil, there is in this connexion no distinction favorable to the Provinces as between wholesale and retail dealing. 12. There is no definition of retail and wholesale dealing available for the suggested i)urpose, and the only defining i)ower that can be reasonably suggested is the Parliament of Canada, which would thus practically retain in its hands the control of the subject. 13. The attempt to sustain the 18th Section of the Ontario Act on the ground that it is a revival of the analogous section of the preconfederation law must fail, because the subject of that section, as already c2 *20 Liffiior I'rohihitiou Apjinil, 1805. Hhown, fell, after confederation, within the exdnsive aiitliority of the Parliament of (knada, l)y which alone it conld l)e as it has heen since attected. 14. The attempt to include the suhject of that section within Provincial legislative power under the head of " Municipal Institutions " hecause it ha})pened shortly hefore confederation to he emhraced in a municij)al Act hy one Province nmst fail. At the time of that legislation each Province had full legislative authority, and the mode of exercising such authority, whether direct or hy reference to nuniicipal hodies, was oi)tional and changeahle at pleasure. The experiment, for such it was, of entrusting municipal hodies with certain powers of prohihition had heen entered on in the late Province of Canada shortly hefore confederation. That experiment had not heen attempted in either Nova Scotia or New Brunswick. Neither in the })ractice of the four Provinces nor in the nature of the suhject nor in the methods of the United Kingdom is to he found any consensus of views or any estahlished meaning which can be successfully invoked to show that the suhject is in the British North America Act comprised within " Municipal Institutions." It would he wrong to use the accident of the partial legislation referred to as ground for enlarging the phrase "Municipal Institutions," so as to vest in all the " Provincial legislatures," to be exercised at the option of each Province either directly or through the municipalities, a power so extensive and so inconsistent with the general scheme of the Act. 16. It is not to be overlooked that in an important particular, namely, with reference to cities, this 18th section conflicts in terms with the Canada Temperance Act. 16. On the whole, it is submitted that the answers of the Supreme Court should be ai)proved and that the appeal should be dismissed. EDWARD BLAKE. Liquor I'mhihition .Ipjx'til, 1H05. ai APPENDIX IIEFKIIUEI) TO IN PAllAGRAPH 2 OF THK CASE FOU THE DTSTlLLEllS" AND lUlEWKllS' ASSOCIATION OF ONTARIO. :,.;.: (I.) ■ Section 99 of the Canada Temperance Act, Revised Statutes of (Canada, 1880, cap. 100, referred to in the Question Number is as follows : — " 99. From the day on which this part of this Act comes into force and takes efi'ect in any County or City, and for so long thereafter as the same continues in force therein, no person shall within such County or City, by himself, his clerk, servant or agent, exjjose or keep for sale or directly or indirectly on any pretence or upon any device, sell or barter or in consideration of the purchase of any other property, give to any other ])erson any intoxicating liquor. " 2. No act done in violation of this section shall l)e rendered lawful by reason of (a) Any license issued to any distiller or brewer; or (/>) Any license for retailing on board any steamboat or other vessel, brandy, rum, whisk(^y or other spirituous liquors, wine, ale, beer, ])orter, cider or other vinous or fermented liquors ; or (c) Any license for retailing on board any steamboat or other vessel, wine, ale, beer, porter, cider or other vinous or fermented liquors but not [ 22 LiiiiKir Prohlhition Appen], 180/5. briindy, nun, whiskey or other Hpirituous li<|Uor8; or (i<,dit j^allons at any one time, and only to druf4<^'ists and vendors licensed as afori'sai»l, or to sneli persons ms Ih> luis j^'ood reason to i)elieve will forth- with carry the same Ix-yond the linuts of the County or City, and of any adjoining' County or City in which this part of this Act is then in force, and to he wholly removed or taken away in (piiintities not less th;in ten ^'allons, or in th<^ case of ale or' beer, not less than eight gallons at a time. " (*). Provided also, that any incorporated C'ompany authorised hy law to carry on the business of cultivating and growing vines and of niiiking and selling wine and other licpiors produced from grapes, having their niami- factory within such County or City, may thereat expose and keep for sale such li(pior as they manufacture thereat and no other; and may sell the same thereat, but only in (piantities not less than ten gallons at any one time, and only to druggists and vendors licensed as aforesaid or to such persons as they have good reason to believe will forthwith carry the same beyond the limits of the County or City and of any adjoining County or City in which this part of this Act is then in force and to be wholly removed and taken away in (piantities not les8 than ten gallons at a time. " 7. Provided also, that mainifacturers of pure native wines made from grapes grown and [)ro(luced by them in Canada, may when authorised so to do, by license from the Mnnici})al Council, or otlun- authority having jurisdiction where such numufactnre is carried on, sell such wines at the place of manufacture in (piantities of not less than ten gallons at one time exce})t when sold for sacramental or medicinal purposes when any number of gallons from one to ten may be sold. " 8. Provided also, that any merchant or trader, exclusively in wholesale trade and duly licensed to sell liquor by wholesale, having his store or place for sale of goods within such County or City, may thereat keep for 24 ; histy's reign, chap. 60, referred to in Question Number 7 is as follows : " 18. Whereas the following provision of this section was at the date of Confederation in force as a part of The Consolidated Municipal Act (29 and 80 Vic, cap. 61, sec. 249, sub-sec. 9), and was afterwards re-enacted as sub-sec. 7 of sec. G of 82 Vic, cap. 32, being The Tavern and Shops' License Act of 1868, but was afterwards omitted in subsequent consolidations of The Municipal and the Li(iuor License Acts, similar provisions as to local ))rohibition being contained in the Temperance Act .'of 18(54 (27 and 28 Vic, cap. 18), and the said last- : ■ • mentioned i\ct having been repealed in Muuicii)alities where not in force by The Canada Temperance Act, it is ..: expedient that Municipalities should have the powers 1 Liquor Proliihitioii Appiud, 181)5. m City mrt and at a by them formerly possessed ; it is hereby enacted as folloNvs : — . " The Council of every Township, City, Town and incorporated Village may pass by-laws for prohibiting the sale by retail of spirituous, fermented, or other manu- factured licpiors in any tavern, nni, or otlier house or place of public entertainment, and for prohibiting altogether the sale thereof in shops and ])laces other than liouses of jniblic entextainment : Provided that the by-law before the final passing thereof has been duly approved of by the Electors of the Munici[)ality in the manner provided by the sections in that behalf of the Municipal Act : Provided further thnt nothing in this section contained shall be construed into an exercise of jurisdiction by the Legislature of the Province of Ontario beyond the revival of provisions of law which were in force at the date of the passing of The Jiritish North America Act, and which the subseipient legislation of this Province pur[)orted to repeal." The explanatory Act of Ontario })assed in the 54th yenr of Her Majesty's reign, chap. 4(5, also referred to in Question Number 7 is as follows : — " Her Majesty by and with the advice and consent of thu Legislative Assembly of the Province of Ontario enacts as follows : — " 1. It is hereby declared that the Legislature of this Province by enacting Section 18 of the Act to improve the Licpior License Laws, passed in the 58rd year of Her Majesty's reign, cha})ter 5(), for the revival of provisions of law which were in force at the date of the British North America Act, 18(57, did not intend to affect the provisions of Section 252 of the Consolidated Municipal Act, being chapter 51 of the Acts jjussed in the 29th and BOlh years of Her ^Majesty's reign by the late Parliament of Canada, which enacted that ' No tavern or shop license shall be necessary for selling any li(|Uors in the origiiial ])a'*ivages in which the same iuive been received from the importer or manufacturer ; ])rovided such packages contain respectively not less than five !.«j-L. .iiJiAf-a' |A-iVt-|','i^. ij^ 26 Lkiuor Prohibition Appeal, 1895. gallons or one dozen bottles,' save in so far as the said Section '252 may have been affected by the 9tli Sub-section of Section 249 of the same Act, and save in so far as licenses for sales in such quantities are required by the Liquor License Act ; and the said Section 18 and all By-Laws which have heretofore l)een made or shall here- after be made under the said Section 18 and [jurporting ; to prohibit the sale by retail of spirituous, fermented or :; other manufactured liquors, in any tavern, inn, or other house or place of public entertainment, and })rohibiting altogether the sale thereof in shops and places other than . houses of public entertainment, are to be construed as not j)uri)orting or intended to affect the provisions con- tained in the said Section 252, save as aforesaid, and as if the said section 18 and the said by-laws had expressly so declared. " 2. Whereas doubts have arisen as to the power of this Legislature to enact the provisions of the said Section 18 or of the said section as ex^jlained by this Act, and it is expedient to avoid a nniltiplicity of appeals involving the said question, the Lieutenant-Governor in Council is to refer to the Court of Api)eal for Ontario under authority of the Act for expediting the decision of Constitutional and other provincial questions, the (piestion of the constitutional validity of the said Section 18 and its true construction, effect and application. " 3. The reference under this Act to the Court of Appeal by the Lieutenant-Governor in Council is to be heard in priority to any other cause or matter in said Court, unless the Court otherwise orders. "4. Li case any by-law passed under said Section ""B is quashed before the passing of this Act the a})plica- cion may be reheard by the High Court of Justice, at the instance of the Municipality whicii passed said by-law by motion on ten days' notice served on the relator, or within such further time as nuiy be allowed l)y a judge of the High Court and the Court shall make such order for the rescission of the order to quash and as to costs as to the Court shall seem meet. « 5HBH Liquor I'raliihitioii Appeal, 1895. 27 " 5. The limit as to the time for appealing from the judgment or order of any Court, in the case of quash- ing a hv-law. or any other judgment, shall not ap])ly to an ai)])eal against a judgment or order (plashing a hy-law passed under the said section 18. " (*). Where any such hy-law has heen (plashed or has heen passed and sliall not he cpuished hefore the determination of the (piestions referred under this Act, hy the Lieutenant (lovernor in Council, to the Court of Appeal, the License Connnissioners, under the I(i(pior License Acts, are not to grant licenses to any new ai)pli- cants, and may only extend the duration of any existing license, from time to time, for any s])ecilied i)eriod of the year, not exceeding three montlis at any one time in their discretion, u})on })ayment of a sum not exceeding the proportionate i)art of the duty payahle for such license for a year. " 7. All proceedings to (piash hy-laws passed under the authority of said section 18, or the enforce- ment of orders for the payment of costs thereon shall he suspended, and no proceedings to (piash other such hy- laws shall he instituted until after the hnal determination of the {piestions to he referred as hereinhefore provided." I ^'1 f 28 Liquor Prohibition Approl, 1895. Jn tl)^ ^ribn Council. 1 The Eight Hon. The Rkjht Hon. The JliaHT Hon. The Right Hon. The Right Hon. The Right Hon. Council Chamber, Whitehall, Thursday, Ainiust Is/, 181)5. I'lYKi'Ht — The lord CHANCELLOR (Lord Halsbury.) ■■ ■ '• LORD HERSCHELL. LORD WATSOxN. LOUD MORRIS. LORD DAVEY. SIR RICHARD COUCH. THE ATTORNEY-GENERAL OF ONTARIO (1) THE ATTORNEY-OENERAL FOR THE DOMINION OF CANADA and ^2) THE DISTILLERS' AND BREWERS' ASSOCIATION OF ONTARIO Appellant, lietipondents. Counsel tor the Appellant, Mr. J. J. Maclaren, Q.C. (of the Canadian Bar), and Mr. R. B. Haldane, Q.C, M.P. instructed hy Messrs. Freshlields and Williams. Counsel for the Respondent, the Attorney-General for the Dominion of Canada, Mr. Newcomhe, Q.C. (of the Canadian Bar), and Mr. Loehnis instructed hy Messrs. Bompas, Bisehoff, Dodgson, Coxe &, Bompas. Counsel for the Respondents, the Distillers' and Brewers' Association of Ontario, Tlie Honoriible E. Blake, Q.C, M.P., and Mr. Wallace Nehhitt (both of the Canadian Bar), instructed by Messrs. Linklater, Hackwood, Addison it Brown. FIRST DAY. Mr. Maclaren — My Lords, in tliis case 1 appear with my learned friend Mr. Haldane on hehalf of the Attorney- General of Ontario, who ap[)eals to your Lordships from a Judgment, or Answers, given by the Supreme Court of Canada to certain questions which were submitted by His Excellency the (Tovernor-General under an Order in Council under a Statute of the Dominion of Canada, for the submission of such questions to the Supreme Court of Canada with a further appeal, by the permission of Her Majesty, to your Lordships. i.i#miitv!iTm* tmi^miimmynmrnairmw Lii[iii)r Proliihitioii Aftpcal. 1805. 29 The questions are seven in number, iind were submitted under an Order in Council passed on the "iOth October 1893. Tliey are as follows : — " (1) Has a Provincial Legislature jurisdiction to prohibit the sale within the Province of spirituous, fermented, or other intoxicating liipiors ? " (2) Or has the Legislature such jurisdiction regarding such portions of the Province as to which the Canada Temperance Act is not in operation ? " (3) Has a Provincial Legislature jurisdiction to prohibit the manufacture of such liquors within the Province ? " (-4) Has a Provincial Legislature jurisdiction to prohibit the importation of such li(piors into the Pro- vince ? " (5) If a Provincial Legislature has not juris- diction to i)rohibit sales of such liquors irrespective of quantity, has such Legislature jurisdiction to prohibit the sale, by retail, according to the definition of a sale by retail either in Statutes in force in the Province at the time of confederation, or anv other definition thereof ? " (()) If a Provincial Legislature has a Hmited jurisdiction only as regards the prohibition of sales, has the Legislature jurisdiction to prohibit sales subject to the limits provided by the several subsections of the 99th section of ' The Canada Temperance Act,' or anv of them (llevised Statutes of Canada, chapter 100, section 99) ? " (7) Had the Ontario Legislature jurisdiction to enact the 18tli section of the Act passed by the Legis- Ititure of Ontario in the 53rd year of Her ^Majesty's reign, and intituled ' An Act to improve the ' Liquor License Acts,' as said section is explained by the Act by the said Legislature in the 54th year of Her Majesty's reign, and intituled ' An Act respecting ' Local Option in the matter of Liquor Selling ? ' " When these questions were submitted to the Supreme Court in accordance with the [)owers jiven them by the Statute under which the questions were submitted and which 80 Lltlitor Proliibiliov ApjWdl, 1805. is referred to in the Case, the Supreme Court directed the Attorney-Creiierals of the various Provinces of the Dominion of Canada to he notified. In answer to tliis call three Provinces apjjeared hefore the Supreme Court at the arij;ument: the Province of Ontario, the Province of Quehec, and the Province of Manitoha. The same Statute gives authority to the Court to allow any interested persons to ap})ear if they think fit. Under this provision the Distillers' and Brewers' Association of Ontario applied for and ohtained leave to hecome parties to the Case. After ar{.'"ment the questions were all answered in the negative hy three of the five Judges who sat u})on the Case. The two other Judges, the Chief Justice and Mr. Justice Fournier have answered five of the questions in the affirmative hut the third and fourth in the negative. Lord Heiischell — That is the prohihition of manufacture and importation ? Mr. Maclaren — Yes. The answer " No " to the ques- tions 8 and 4 were unanimous hy the Court, Lord Watson — Are you challenging those two answers ? Mr. Maclaren- —We are challenging all. We ask for an affirmative answer to the 7 questions. The (questions 1, "2, 5, 0, and 7 received an affirmative answer therefore from two of the Judges. Your Lordshijis will ohserve that the first six questions are general, and in one sense theoretical, and do not refer to any existing legislation. The 7tli question is in a different category and refers to an Act which has heen i)assed hy the Pro- vince of Ontario or to a section of an Act -the IHth section of the Act passed in the 58rd Victoria. I may say, however, that that section IH which is (pioted and which your Lordships will find in the Appellant's C^ise on page '2 and elsewhere in the Pecord, although it is section 18 of an Act it is an independent i)iece of legislation hy itself and has no connection with the preceding 17 sections. It is independent legislation though forming only one section of an Act, So that it is not necessary really to refer to the other part of that Statute in order to ascertain the i)ur})ort of this legislation. As already appears from the Petition which was j)resented to your Lordships for sjjecial leave to tSSBBBSm S^r3^TnuaSSB!aSS5S!W!-W^ Liquor V roll ihit ion Appeal, 1895. 31 the lion ivee mt: the _v to ihey ers' to ions iges appeal and from the Order in Council in this matter, there was also hefore the Supreme Court a case involving the validity of this IHth section of the 58rd Victoria, namely, the case of Hitsoii v. Soiitit Xonrirh. That was hetween private parties and had been ar<,'ued in the Supreme Court before the submission of the special questions by His Excellency the Governor-General and stood for judgment. Judgment was given the same day as the (juestions were answered. The Court was differently constituted. It was con- stituted of iiv(^ Judges, but one of the Judges who had heard Hiison V. South Xorwicli, Mr. Justice Taschereau, did not sit when the questions were argued, Mr. Justice King who did not sit in Humn v. South Norwicli having been subsequently appointed to the Court sat in the case of the questions that wen submitted by the Governor-General. As a result of the two arguments there was this anomaly as far as regards this Act of 1800, that in Huaon v. South Norwich the Court by a majority of three, composed of the C!hief Justice, Mr. Justice Fournier and Mr. Justice Taschereau held tlie Ontario Act to be valid. Lord Watson — They nnist have been right once. Mr. Maclaren — They were on the same side both times but the majority was differently constituted. Lord Watson — The C'ourt was differently constituted. Mr. Maclaren — Innnediately after the rendering of that Judgment they gave the answers to the questions submitted by the Governor-General, Mr. Justice Taschereau not sitting and l)eing re})laced by Mr. Justice King. The result was the o})posite so far as this question 7 is concerned — the minority became the majority and tlie majority became the minority. Mr. Justice King answered the questions and joined the former minority and so in answer to the questions the Court were 3 against *2. The result is that the Supreme Court composed of (5 Judges were really equally divided as to question 7, at least 3 of them being of opinion that tne Act was ultra vires and 3 of them being of opinion that it wae within the power of the Provincial Legislature. Of those who were parties in the Court below the i)resent Appeal is brought by the Attorney-General of Ontario. The 1 \'i r 1 1^ ■; \ iVl Liquor I'rohihltiim Ajypcol, 1895. Province of Quebec was also represented as I mentioned in the Sui)renie Court, but I believe does not take any part in this Api)eal. The Province of Manitoba was represented at the hearing in Ottawa by the same Counsel as Ontario, and I am instructed by the Attorney-Cxeneral of IV[anitoba to say that he is not a party fcrmally to this Appeal on account of his concurrence with the position taken by the Province of Ontario. The other two parties, the Attorney-General of the Dominion and the Distillers' and Brewers' Association of Ontario who were parties in the Court below are the Respondents before your Lordships. As the Attorney-General for Ontario whom we represent is specially interested in the Act which was passed and which is i)nt in question No. 7, I think for that reason and because historically this really forms a connecting link between the anterior legislation on this subject and those theoretical questions that are embraced in the first (5 (]uestions that are submitted, it would shorten the argument of the case and be more convenient if your Lordships would allow me to con- sider the 7th question first. That is concrete legislation — a special Act of the Legislature of Ontario — an^i the Attorney- General for Ontario naturally feels a special interest in that as legislation which has been declared invalid. In con- sidering the (juestion under the Rules that have been laid down by your Ijordships for the construction of the British North America Act. it is incund)ent on us to show that it comes within one of the subsections of section 92 of the British North America Act. In the case of the Citizens Inato-dncc Coiiipanij v. l^nrsous * your Lordships, I think, for the first time in a formal way, laid down the Rule for the con- struction of the British North America Act, and then decided that the proper test when an Act of a Provincial Legislature was being considered was whether it came within section 92 of the British North America Act. I will read the passage from the Citizens hiHiinnice Coutpuny v. 1 'arsons from Cartwright's Collection of Cases on the British North America Act. The Lord Chancellor — That was the Fire Insurance case '? Mr. Maclaren — The Insurance Case. At page 273 of the first volume of Cartwright's Collection of Cases on the L. R. 7 Ap, Cas. 96.— 1 Cart. 2G5, Liijuor Prnliihih'ini Appral, 1X05. 88 British North Aiuericji Act, your Lor(lslii[)s liiid down the rule as foUows, and it has l)eeu several times followed : " The first queHtion to Ijo dccicUiil is wlicthur the Act iuiix'ached in tiio present Appeals fulls witiiiii any of the classes of siil)ji'cts enumerated in section 02 and assi^'iied exclusively to the Letji statures of the Provinces, for if it does not, it can be of no validity and no other question would then arise. It is only when an Act of Provincial Legislature priiini facie falls within one of these classes of subjects that the further questions arise, viz., wluither notwithstandin;,' this is so, the subject of the Act does not also fall within (Uie of the enumerated classes of subjects in section !)1, and whether tlu^ power of the Provincial Legislature is or is not thereby over-borne" That is the rule hv which we are hound here. It is incuni- hent on the Appellant in this case to show in the lirst ))lace that this legislation which is in (piestion het'ore your Lord- ships, does come within one of the classes of suhjects mentioned in section 1)2, and that it is not taken out of section 02 hy heing included within any of the enumerated suhjects in section 91. Lord Watson — Unless it is taken out hy the last clause of section 01 in general terms. Mr. Maclaurn— There are I think dicta of your Lord- ship's which would go to show that it is only the enumerated suhjects in section 01 that are taken out. Lord Watson — That is so. Mr. Maclaren — That the general clause at the heginning in the parenthesis " Notwithstanding anything in this Act," and the general clause at the end of section ',)1, do not over- ride the enumerated suhjects in section 02, hut that it is only the enumerated suhjects in section 01, which can override section 92. Lord Herschell — The genei-al words in section 01 include what you do not find in section 02, hut if you And something in section 02, nevertheless the [jowcr in relation to it may be restricted hy the special i)rovisions of section 01. Mr. Maclaren — It opens in this way : ■' It shall be lawful for the Queen, by and with the advice and consent of the 8eiuite and House of Commons, to make laws for the 'fe.. 1 I I 1 i ri i 1^ 84 Liijiior I'l'uliihitiim Ai>ih' 2 Ml k I' •It ' i I 86 l/iifiuir I'roliihiliiiii Ai>i>i'(il, 1HU5. ill i can constitute thcni if tlicv plcnsc ; as to tluMi- functions, so far as that is incliuU'd in *• Municipal Institutions " can tlicv give thcin power to do anything wiiidi is not a power conferred on tiie I'roviiu'ial li(>;,Mslature ? Can they delej^'ate to a nnniicipality or modify tli(\ constitution of a nnniicii)aHty in its functions to i^'ive it power to do something hesides the tilings they iuive power to do ? Mr. Maclauen — One of the enumerated things is " Municipal Instituticms," and my ar<,Mnuent is that "Municipal Institutions " involves not oidy th(^ right to create these corj)orations, hut to give them sn<'h powers as were understood to he comprised within the meaning of the phrase " Municipal Institutions." Lord Watson — At the time hefore the Act passed, the Provincial Legislature could have given them all the powers which the Dominion Legislature suhsecpiently had conferred upon them. J)o you mean that hecause th(^ phrase " Municii)al Institutions " is used in general terms in suh- section 8 of section i)'2, that therefore the Province have power to continue to create those institutions and to endow them with powers wiacl; they themselves as a Legislature were not possessed of? Mr. Maclaren -.Njtatall. My argument is, that out of the powers which had heen conferred upon Mnnicii)al Listitutions ])revious to confederation must he taken out, so far as local legislation is concerned, all the suhjects which have heen assigned to the Dominion. Lord Watson — That goes very much hack to the (piestion, do not you think, of what powers in the suhsequent Act are competent to the Provincial and what powers are conii)etent to the Dominion Legislature ? Lord Herschell — Of course so far as the Legislature did so hefore that law no douht remains, hut the (piestion is whether the new law" can he enforced under any of the suhjects which are enumerated in section 9*2. I do not see how they can give the Municii)ality power to legislate, hecause that is what it comes to. Mr. Maclaren — My argument would he respectfully lit 'j,t^.-'^'ii:siii, oii-i^. i**"!./. ».-'-..,. I.itiiinr I'niliiliiliini AjtjnaL iH'.ir), 37 this: that the word " Mniiicij»iil InstitutiouK " is used in ii {^ciit'i'iil sense, iind as I hope to he ahh' to show your Jjordships. in a sense very well nnch'istood inCanacHan Lef^is- lation, and that when the t'raniers of the (^nehee llesohitions wliich are enilxxhed in the British North America Act, put in l{esohition No. 4:}, the words " N[unicipal Institutions." and <^'ave the h)cal Lej^islature authority to pass hiws r(>spectinj:; Municipal Institutions, they meant such lej^islation as had been theietofore enacted in Canachi from tim(> to time ; and Huhjects which were not expressly assigned to the Dominion by section i)l. I achnit that there are some subjects in section 91 wliich Lord Watson Sup{)osin<^ tlu're were a nmnicipality on the sea coast which had char^'e of buoys and various other subjects ^iven to the Dominion Tarliament, you would not say that subsecpiently the Provincial Ije«,'islature could give them any new rights ? Mr. IVrACLAHKN — Not at all. My argument is that they would not have that power. Lord Hkhschkll — Your argument is that everything they had done theretofore as Municipal Institutions they may legislate about afterwards ? Mr. Maolaren — Not at all, my Lord, because the buoys mentioned by his Lordshi}) are expressly taken out and assigned to the Dominion. Jjord Watson — I notice you use the words "expressly taken out," but are not there also excejjted all things whicli are fairly included in the general language of any sub- section of section *,)1 ? Mr. Ma'jlaren — I did not mean to say that. Lord Lavey — The })resumptio)i is in favour of section 91. Mr. Maclaken — To a certain extent, no doubt. Lord Watson — It says that, notwithstanding what has gone before, it shall extend to all matters coming within the class of sui)jects next thereinafter enumerated. Now, if any matter cones within these classes of subjects, of which there m J m ■t, m I n 38 Llqiior Prohibition Appeal, 1805. Ml are 29, do you say that any matter coming within these is a matter with which the Provincial Legislature could deal or could endow a municipal institution with power to deal ? Mr. Maclaren — My argument is that it could not, my Lord. Lord Herschell — Let me follow that up. E^ en although it is not one of the subjects which are given in terms to the Provincial Legislature, yet if it was a subject about which there had been legislation in relation to the municipalities, then it becomes a municipal institution. Do you say that ? Mr. Maclaren —If it had been comprised within the municipal institutions. .:" :.• ;■. , Lord Herschell — I do not quite understand what you mean by " comprised within the municipal institutions." The thing itself obviously had not, because the question is whether particular legislation about it is good. It must mean that there had been legislation about a particular sul)ject matter, endowing a municipal body with power in relation to it. , Mr. Maclaren — Yes. Lord Herschell — Then wherever that liad been the case, any legislation with relation to that in the direction of further or altered powers, you say is subject to the other ? Lord Watson— That would make the section an exception from the powers conferred by section 9L I do not doubt that under sub-section 8 the creation of municipal institu- tions is given them ; but on the other hand, with reference to matters as to which the Legislatures have powers to deal, does not it follow that they mast look to the Dominion Parliament so far as the matter is connnitted to the Dominion Par^inment on this subject ? Lord Davey — 1 think there is a case on this very sul)ject ill which municipal legislation was held to include such matters. . ^ . Mr. Maclaren — My argument is— and it is necessnry for us to argue it in this case — that the words "municipal W I 1 fl tK Buauan Liquor I'rolUbitioii .Lppeal, 1895. 39 iiiHtitutions " in sub-section 8 include not only the creation of corporate b dies and municipal cor})orations, but also the conferring upon them such powers as usually, at least, belong to such bodies. Lord Herschell — But would it be "usually"? They confer upon municipal institutions every power which they please. Why " usually " ? Mr. Maclaren — That they would probably put under one of the other enumerated classes. I was only arguing how much they might do under sub-section 8. They might, I think, confer upon the municipal institutions Lord Herschell — I do not understand myself under sub-section 8 how they have power to confer anything which they do not themselves possess. "Municipal institu- tions " means the creating of municipal bodies and giving them powers. What })ow-ers — all or any of those which they themselves have ? I cannot at present grasp the idea of their being able to give them more. Lord Watson — Nor I. Mr. Maclaren — My argument is that munici[)al institu- tions, as un(i"''stood in Canadian legislation at the time of and before the passing of the British North America Act, included a large numljer of subjects wliich are not by name comprised within any of the other classes of subjects that are enumerated in section 92. Lord Herschet,l — As to what it comprised, surely it comprised numicipal i)odies, and it coni])rised every right and power which those nnmicipal l)odies had. It was not limited to particular subjects ; it included everything. Mr. Maclaren- -But there would be, as was mentioned a moment ago by your Lordship, taken out of those subjects which had formerly licen included, powers which are not possessed by nuuiici))al instit!Hi();)s — at least, so far as local legislation would go. There would be taken out of that the power of the local Legislature to confer all the subjects that are enumerated in section 91. Lord Watson — For the first time it distributes the 'm I I '1 ■II ■ :!fil M u>% ■1; ^|} f: [ I •40 Li(jit(ir Pfohihitiiiii Apjtcdl, 1895. il I power betweon the Doniinion and the Provinces, luul they must look to t]\e Dominion for the authority to legishite on sul)jects which .'re within the Dominion, and they can only look to the locality to exercise authority on subjects which are within the locality. Lord Hekschell — You say " Municipal Institution!?. " has a technical meaning l)ut where do you deriv* r'Mi technical meaning from ? Mr. Maclaren — I derive it from the course of Canadian legislation. .: .., tine it ? .■ctions in section 92. In either case it equally belongs to the Parliani(>nt of Canada. M tV^ \ ^ti \4\ li ( I "8 1, 'i n :| J f i; .: . i J- 46 Liquor Prohihition Apjifdl, 1895. Mr. Maclaren — No doubt, my Lord. Lord Watson — Now, if it can be shown to be within that, according to the assumption of your argument, it cannot be exercised by the Province, and it cannot be given as a power consequently to the municipal institutions. If it is without, it can. I take it that the whole legislative field which an Imj)erial Legislature in (Canada could occupy is divided between these two bodies — the Provincial and the Dominion Parliament. There is no vacant ground. It belongs either to the Dominion by virtue of one of the sub- sections from 1 to 29, or by virtue of its not coming under section 92, in which case the last sentence of section 91 gives it. ■ Mr. Maclaren — Yes, my Lord. ' : . . Lord Herschell — I am not sure that I quite follow you as to " Municipal Institutions." You say that, supposing you cannot find the power anywhere else, you find it in " Municipal Institutions." Of course, if yon can find it under any other section, well and good ; but your point is, that although it cannot be found to be conferred in terms upon the Provincial Legislature, in which case presumably it is not in it, yet it is conferred by this sub-section on municipal institutions, because it is given to a munici})ality. You admit they could not legislate without it themselves for the whole Province. ' . ; Mr. Maclaren — The Province — I do not know that that (juestion is really necessary for the consideration of this question. . . . - ' Lord Herschell — It is rather a strange conclusion, that something which they cannot legislate about themselves for the Province because it is not within any of the others, they can confer upon the various parts of the Provinces power to legislate about. - -; • './ .;.,...;<.;;:; • . Mr. Maclaren — That is not my argument. My argument would be that, under the head of " Municipal Institutions," the Province could legislate u})on such matte ' as are com- prised within the term " Municipal Institutionts," even other- 'i m Liquor I'roliihifloii Aiipcal, 185)5. 47 wise than by giving them to the bodies that were created — incorporated bodies. Lord Herhchell — It seems rather strange to me that because the Provincial Legislature can legislate about Pro- vincial institutions, it can legislate about something which had no relation to municipalities. Mr. Maclaren — It would be conii)rised within what could be understood by " Municipal Institutions " or matters. I think the term " Municipal Institutions " has been decided by your Lordships in the cases that have come before you when this question has been under consideration to have a wider meaning than the mere creation of these bodies. Lord Herschell — Certainly, the creation of bodies ami all powers given to the bodies — but I do not think this Board has ever suggested that there was power to give to the bodies something that it was not expressly competent to legislate about itself. Mr. Maclaren — But I think your Lordships have decided that they could give to a nmnicii)al body some power that was not in any other of the enumerated subjects of section 9'2. Lord Davey— I do not think that the cases have gone beyond this, that "Municipal Institutions" includes the creation of Municipal Police, with all the ])olice powers which are necessary for the maintaining of the order and good government of a municipality, and it nuiy be (I do not know whether it is or not), that this may come within this category. I do not think the cases have gone beyond that. Mr. Maclaren — The case of Hodnc v. 77//- (Jm'm * is the case where your Lordships considered it, and powers going very near the same length as the legislation that is before your Lordships now, were considered. Lord Davey — There is another case which I remember I argued, but which I do not remember the name of, which may con.'^ "vithin that category, as to the regulation of billiard rooms. M I '9 '4 u« f'1 * L. R. 9. Ap. Caa. 117.— 3 Cart. 144. ■J 1 tfirfr 1 I 48 Liquor Proliihitiiiii Apjtfal, 1805. i' ( II II Mr. Maclaren — That is Hoihje v. 'ihc Qucm. That is the hilliard case. Tjord Davey — It is a case where a man was sentenced to hard hihonr l)ecause he kept his billiard room open during prohibited hours. Mr. Maclakkn — That is Hod(je v. The Qufcn my Lord. Lord Morris — If this subsection 8 were limited to merely creating a Munici))al Institution I could understand that, but if it goes beyond the mere creation and it is said that it may imply also a i)ower to vest in the Municipalities matters incident to the Institution, then you open the door for seeing to what length it should go, and it would appear to be not unreasonable to sav that at the time the x\ct was passed one could see what were exactly the matters that were entrusted to ^lunicipalities, because you have opened the door beyond the mere fact of the creation of a Municii)ality, and you have opened the door to show that the question as to what length you may go nmst depend ujjon the circum- stances of the case and not upon previous decisions. Previous decisions held the door was open to a })articular length about police, but the door was opened beyond the mere creation of a Municipality. Lord Herschell — This Board has held that the pro- hibition of the local liquor traffic is a thing which is given to the Dominion Parliament under section 91. Mr. Maclaren — In Jltisst'Jl v. 'Ilu' (Jucfii * which I was going to it is considered. Lord Herschell — And they say it cannot exist in the Provincial Parliament. ' . , Lord Morris — My observation always assumes that it is not given under section 91, I !aj>eb-^A^u.3.<_ Meir-' ? , T.ltiuor Vrohlhitinu ApfwaJ, 1805. 51 Lord Hehschell — 16 and 10 they say it was. Mr. Maclakkn — Yes. Lord Hkiisciieli- — Of eonrso it was thon^'lit, wliprovfu* you have a mniiit;i))al body ('niii()w«'r('d to do any of the thing's in sections nundxn'ed 1 to 1(3, no doubt it came within tliat number, but tliat is no authority for sayin;^ that it ^ives any extended meaning' to " A[unicipal Institutions " beyond this, that within it is the j)ower to eiiabk^ municipahties to use any of the things which tlie legi ,iture itself couhl use. I think so far it goes, but I do not tiiink it goes farther. Mr. Maclaren — Yes. Now I desire to refer your Lordships to the course of legishition in Canada })y which w(! claim tliat the words " Municipal Institutions " have been defined and have come to have a well defined meaning. Lord Hekschell — A well defined meaning, where ? Mr. Maclauen — In Canada — especially in the Province of Old Canada. I will refer to the other as well but the expression "Municipal Institutions " so far as I am aware had been used in legislative enactments only in the Province of Old Canada. Lord Davey — I suppose you would say that " Municipal Institutions" does not include merely the creation of Town Council and Aldermen and Mayor for instance, but would include for instance the creation of a market and nninicipal police. Mr. Maclaren — Quite so. Lord Watson — Or a separate body of commissioners for the i)urpose of supplying the locality with water ; I should say all those were Municipal Institutions. Mr. Maclaren — Yes. Lord Watson — Or institutions created for the benefit of the particular nmnicipality. Lord Davey — And I should suppose it might include the establishing a gas w^orks. Lord Hehschell — I should think it included every local K 2 i i. I i m ^ ■I, 1- ^'il i 52 Liijitor I'roJiHiltioii Appval, 1895. I body and every power that you can confer upon that local body. . The Lord Chancellor — You would add to that, that which was included in Canada. Mr. Maclaren — I think that would be part of ray argument Where the expression " Municipal Institutions " had in various Acts of Parliament been given a well knov/n meaning. I would refer your Lordships to a joint Appendix of Statutes that has been put in by the parties — that is the Appellant in this case and the Distillers' and Brewers' Association to which they refer. It is a selection of statutes chiefly before federation which show the legislation. They are extracts from the statutes showing the regulations that had been in force in Canada upon the subject. The first Municipal Act in Canada was passed by the Province of Canada for Upp^r Canada alone. -. The Lord Chancellor — There is a difficulty in my mind as to whether I und^u'stand your argument, and the difUculty is this. I quite undcistand the Im})erial Legislature using the word which had been usually used in (Canada with reference to Canadian subjects; that would be true. I assent to that as reasonable, but I very much doubt unless you can make out a more limited meaning universally understood in Canada whether the Legislature were supposed to use it in a more limited sense than in the Imperial Parliament ^'^self. Because in some parts of Canada i)articular powers are given to Municipal Institutions, the^*efore I understand you to say that the powers are universal. Mr. Maclaren — Not universal, and the expression " Municipal Institutions " I think was not uni»'ersal, but I was going to show your Lordship a series of Acts in which the expression " Municipal Institutions " was used. The Lord Chancellor — You mean beyond those which you would say are generally incident to Municipal Institutions, do you ? Mr. Maclaren — They are used as they are given there. They are not given in all countries. Of course different countries give different powers. - "TWW^'W^ Liipior Prohihifioii Apju-al, 1805. 53 The Ijord Chancellor — We must consider what is usual in the phice in question. Mr. Maclaren — I presume that "Municipal Institutions" in Canada means something different to what the words might mean here in England. Lord Watson— The meaning of institutions may he got at when the question is what powers had they, speaking with reference to the powers to he exercised hy the institution, created or rather conferred upon the institution hy the new Provincial Legislature. The Lord Chancellor— And merely hy the use of that word. Lord Herschell — If you take the statutes themselves it is not used — it is not in the first Act. Mr. Maclaren — No, my Lord, I think the expression is not used in the Act of 1849. Lord Herschell — But in the Act of 1849 there are certain numicipaiities created and there are certain powers given. Mr, Maclaren — Yes, my Lord. Lord Herschell — Then comes the Act res])ecting Municipal Institutions of Upper Canada. That is tlii> first. Mr. Maclaren — That is the first time in which it was used in the statutes. Lord Herschell — Then you have a numher of jnovisions giving certain powers to certain nnniici[)al hodies, hut the Municipal Institutions existed, did not they, hefore ever those powers were given ? Mr. Maclaren — The general " Municipal Act of 1849," which is (pioted here was the first general Mui ii.ipal Act for the Province of Canada and api)lical)le alone to U]i)per Canada, and it wi)s not introduced in the Province of Quebec, that is, in Lower Canada, for some years afterwards. Lord Herschell — I should read the title of this as relating not to })owers which they possess, but to bodies. ■ 1 . ! ! 3;! .1, . ;i .■mi m iii ) ... IV" 64 Liquur I'ruhiliitioii Appctil, 1895. :| because it is an Act relating to the Municipal Institutions of Upper Canada, that is municipalities that had been created, and they v/ere going to give them further powers, but the Municipal Institutions of Upper Canada would not mean the powers which they were about to confer, but the bodies upon which they were about to confer those powers. Lord Watson — -Do the parties mean to represent to us that before 1849 there was not a Municipal Institution there ? Mr. Maclaren — No, my Lord ; I think that is not so. The iirst general Act was passed in 1849. Lord Watson — There were municipalities before the first general Act '? Lord Herschell — But still even at the time of the first general Act in 1849 there are no such words used. Mr. Maclaren — The word was not used. Lord Herschell — Did you observe tlie title of that Act where the word is used: "An Act respecting the Municipal Institutions of Upper Canada" — does not that refer to the bodies rather than tlie powers that are about to be conferred upon those bodies ? lAr Maclaren — Well, my imj)ression is that the word is used in the title very much as it is used in section 92 of *' The British North America Act," that the local legislatures under section 92 might make lavv's upon tlie following classes of subjects, one of them being Municipal Institutions. Lord Herschell — No ; it is an Act respecting not Municipal Institutions in Upper Canada, but it is an Act respecting The Municipal Institutions of Upper Canada. It is the definite article that I am calling your attention to. The Lord Chancellor — It is recognising there the existence of constitutions, and giving them certain new powers. Mr. Maclaren — This was really ;•. consolidation — it was embodied in the consolidated Statutes. The Act of 1859 is found on page 8 of the Appendix. Lord Morris — The enacting part of section 92 should T Ijifjllnr I'i'dllihitio}} .ippi'dl, 1ositioji, (hat th(>re was l(>;.nslation at the time of C^oniedfM-ation by the Parliament for the whole of Canada. There was other legislation for Lower Canada and l'pp(>r Canada sejjarately, and there were certain powers given to 111!'! \\m xf' 56 Liquor J'rohUntloii Ajipcal, 1895. i , ! the innnit'ipalities to regulate some matters relating to weights and measures in the Municipal Act. Lord Davey- Mr. -There is a section about existing legislation. Maclaren — Yes, section 129. Lord Watson — But all the powers given in the Act are expressly taken away under section 91. I mean all the ])owers given to the municipalities that the Act refers to are laken away by the British North America Act, section 91. What inference do you desire us to draw from that ? Mr. Maclaren — As to those that are taken away, there can be no question that those are beyond the powers of the local legislature. Lord Herschell — But the difficulty you have, as it seems to me, is this — that everything is taken away which is not expressly given. You cannot say that this enabled them to confer upon municipal bodies or to legislate in relation to all matters that municipal bodies had been empowered to deal with before, because some of those are expressly men- tioned in section" 91. But then section 91 equally sweeps in everything that is not ex})ressly given in section 92. Mr. Maclaren — So far as this clause is concerned, I am driven back to the same pomt that I previously mentioned to your Lordship — that I think we nnist, so far as this argument on this sub-section 8 goes, that sub-section 8 Lord Wat;'on — It shows that in the matter the Inq)erial Parliam.'ut cannoi; have given all the powers or the powers belong' ng to nmnici})alities before the passing of the Act. Mr. Maclaren- Lord Watson- — Certainly not ; we nnist admit that. -It must be sought elsewhere. Lord Herschell — You say " Municipal Institutions " means the creation of the bodies and dealing with their powers in all nuitters which are not given to the Dominion Parliament by section 91 ? Mr. Maclaren — All powers which were conferred upon them and not transferred to the Dominion — ves. weimmiiw^iMaK^mi'i''mm\»iu\vi i*at ■-;-rT-.ji«B Jj'quor P roll ihit 1(111 .ippedl, 181)5. 57 Lord Herschell — But then there are given to the Dominion under section 91 not only the enumerated things, but everything which is not given in section 92 ? Mr. Maclaren — Yes. Lord Herschell — That seems to me very difficult to understand. Therefore can "Municijjal Institutions" include the gi\ing of powers in relation to any of the matters not to be found in 1 to 10 '? Mr. Maclaren — I tliink so far as the argument u[)on this sub-section goes we must claim that "Municipal Institutions" does mean more, that ip, it means the powers, as I have said, which had been conferred upon nninicii;alities and which are not taken and transferred to the Dominion. Lord Herschell — But everything is transferred to the Dominion which is not expressly given to the other. Mr. Maclaren — We may be arguing in a circle, but I come l)ack to this with which I started. Lord Morris — One of the things expressly given is all matters that had been previously considered common to Municipal Institutions you say ? Mr. Maclaren — Yes. Lord jNIorris — They are given expressly ? Mr. Maclaren — They are given expressly. Lord Herschell — But you cannot say it is all matters exju'essly considered connnon to IMunicipal Institutions, because you have excepted out of them everything found in section 91. Mr. Maclaren Yes. Lord Herschell — Then if so, amongst the things given to the Dominion Parliament is legislation in respect of all matters not expressly given to the Provincial Legislatures. Mr. Maclaren — But, my Lord, I think that is really overriding the whole of section 92 and taking away the whole power, tor this reason : take, for instance, any of the subjects enumerated in section 92 — take " property and civil •li li 'II- li,: 'i '§ A 68 Ijiquar I'rohihititm Ajqwul, 1895. rights," for instance, I think that the interpretation which your Lordships liave })ut upon tluit section is this, thai the Province may legishite respecting property and civil rights except as to the interference with property and civil rights hy legislation hy the Dominion upon any of the sul)jects that are enumerated in section 91, and I would ask you to apply the same rule here. ' •' - Lord Herschell — No, hecause you see the dilRculty is this, that you are seeking to extend the natural meaning, as it strikes me, of "Municipal Institutions." It is any municipal l)odies you choose to create, or whose circumstances you choose to modify, and every power that you choose to give to those municipal hodies, all that is included in " Municipal Institutions " as I should understand it hy the light of nature. But tlien you seek to put an artilicial meaning upon it rather, and to say that it means the powers which had heen in fact conferred, or rather powers of the nature of those which had heen in fact conferred u})on municipal hodies. But then you cannot maintain that to the full, hecause you are ohliged to admit that it can only mean such of them as were not conferred upon the Dominion Parliament. Mr. Maclaren — Yes. Lord Herschell — Then I have pointed out to you that if you have to interpose that exception, thr>n you excei)t also everything that was not in terms given to the Provincial Parliament. Mr. Maclaren — As I tried to point out a moment ago, that would apply not only to 8 hut to every other sah-section to section 92. Lord Herschell — I do not see that it applies to the others also, hecause if you can find it in any of these from 1 to 16, then no douht there are exclusive ppwers given to the Provincial Legislature, and no general words in section 91 will enahle the Dominion Parliament *m take it out of the power of the Legislature. Lord j\IoRRis — It still comes hack to the question under suh-section 8, are these poAvers expressly given to the fpK.^;«i.:.TOi«a)->--.mi«»rviB3^5«»t»Tf5nirMi Liquor Vrohihituni Jj)i>eal, 189f5. 50 I 'l: Provincial Parli.ament ? You say they are under tlie words " Munic'i})al Institutions," and you would be ri^dit if you could show that '* Munici[)al Institutions in the Province " includes them as well as the others. Mr. Maclaren — Yes, and I was endeavouring to show to your Lordships that " Municipal Institutions," as understood in Canadian legislation, really comprises such })owers as we are now claiming under the Act that is im2)ugned. Lord Herschell — Not such [)owers. It a})plies to all the powers that were given to municii)alities. Por instance, it did not com[)rise any particular one, hut it comprised every power that was given as I uiulerstand it. Mr. Maclaren — Every power that is not taken out hy section 91. Lord Morris — As I understand it, you want to read "Municipal Institutions" as though there were -i glossary to the Act, and your glossary is })revious legislation. The Lord Chancellor — I can quite understand that, if you were accurate in your statement as to what that was. Mr. Maclaren — I was just proceeding to show your Lordships as well as I could what I meant by that. The Lord Chancellor — I thought you conceded that there were different powers ? Mr. Maclaren — The legislation was not identical. The Lord Chanceli-or — Not uniform ? Mr. Maclaren — Not uniform in all the Provinces, The Lord Chancellor — But when you are treating that as a mode of expounding a })articular word it seems to me impossible to follow your argument. Lord Watson — The fault of your argument appears to be this : to suggest that there is some power or other which might be given to a Municii)ality which it is not the province of the Supreme Legislature to confer, and not within the power of the Provincial Legislature to confer. I am not aware that there is any such legislative powe?" to be found [ I ti(ilj '•'m t Hill IT / ''V\ / ) '60 Liqattv Vrnhihitiou Apimtl, 1895. within the four corners of the Act or out.'ide the four corners of the Act of 1807. It appears to me the whole legislative j)ower helongs to one body or the other. Mr. Maclaren — That I think is undoubted my Lord. Lord Watson — But if it is within your power under section 92 what is the use of going to previous Statutes on it ? If it is outside your powers it is equally useless. Lord Herschell — You go to previous Statutes to show what " Municipal Institutions " mean ? Mr. Maclaren — Yes. Lord Herschell — But my difficulty is, looking at these Statutes, "Municipal Institutions" there means, if it refers to powers at all and not to institutions, all powers that the Municipalities possess, and it does not mean any new powers that it is proposed to confer upon them. Mr. Maclaren — But this is an old power which had been conferred by Canadian legislation upon Municii)al Institutions. Lord Morris — If your detinitiou of " Municipal Insti- tutions " which obtained in Canada can be got out of the previous legislation it is expressly given under sub-section 8. Mr. Maclaren — That is beyond argument. Lord Morris — It is expressly given. It says so. Lord Watson — One object, or if not an object, certainly a i)laiii result of the Act of 1807, was to take away from the Provincial Legislatures the power to do a great many things which they had done and quite competently done before. Mr. Maclaren — No doubt. Lord Watson — And to hand over those powers. The motive seems to have been to give over all those legislative powers which were necessary for the general welfare of all the Provinces, and in regard to those matters with respect to which there ought to be uniform legislation throughout the Provinces. W'¥i¥iBi' '^B bgfcg '.'.i an index. Lord Watson — The destruction of wolves is a Municipiil Institution. Mr. Maclauen — When tlie Municipalities looked after the destruction of them. In these Consolidated Statutes the Act of 1850 was consolidated, and section '240 is identical with section 245 of the Act of the year 1850. Lord Watson — The destruction of wolves goes heyond regulation. . _ Lord Herschell — It commences " Existing Institutions continued," and then it goes on to New Municipalities. Mr. Maclaren — Yes. Lord Herschell — I should say that " Municipal Insti- tutions " there was used in the sense of the hody and not of its powers. Mr. Maclaren — The title of the whole Act. Of course the greater part of the Act is taken up with the powers and not with the Institution. ■ . Ijord Herschell — It gives those Municipal Institutions powers, but the " Municipal Institutions" means the bodies, not the powers conferred. Lord Watson — Without reference to any power tliey may have had before. For the purposes of that enactment it is quite immaterial. Mr. Maclaren — The Act which was in force in Upper Canada (20 & 30 Vic. cap. 51) at the time of Confederation your Lordships will find on the same i)age (», which Act was passed in 1866. That also, like the Act of 1850, is intituled, "An Act respecting the Municipal Institutions of Upper Caiuida," and section 240, which is cited on page (>, is almost identical with that which is found in the Act of 1850. Next, when we look at the Statutes of the whole Province of Canada that related to Lower Canada, we tind an almost identical course of legislation upon this subject. The Act of 16 Victoria, cap. 214, provides for the consent of nuniicipal L'kjiiov I'mliiliilioii Ajijifiil, 18')5. 08 Jill II electorH beiiif? necoHsavy for tlic ohtaininf,' of a license. The first (lencral Muni(!i|)iil Act of Ijowci'CiiiiiMLi (IS Vic. cu|). 100) is to !)(' found on i)ii«^'<' 12, and was call< il " Tlie Lower Canada Mnnici])al and lload Act, 1855." Section 28 of tliat Act reads tlnis : " The jjowfrs iind fuithority of oacli LdchI Council (in iuMition to the powers liL'roiuhi'foro con fern •d ("ounties, by section 20 those powers were conferred upon the Counties. Lord Davey — That was oidy the power to grant licenses. Mr. Maclaukn — Yes, my Lord ; the i)ower of {)rohihition is not included in that. Lord Davky — Section 02 expressly confers the power to grant licenses. Sir Richard Couch — For revenue — only for revenue. Mr. Maclarkn — For revenue. Up to page 22 of this Joint Appendix I think all the Acts show what the legislation was prior to federation in each of the Provinces which went to make up the Dominion of Canada ; and as I say the expression " Municijial Institutions" I think is found, so far as I am aware, only in the Acts ai)i)lying to the Province of (^anada. We find it in a series of Acts relating to Upper Canada. There have been a nund)er of judicial decisions and interpretations with regard to this matter, and it iuis been considered by the Courts, although, as far as I am aware, your Lordslii})s have never been called upon formally to consider it in connection with the (piestion which is now before you. But the matter has been before the Courts in Canada — the Courts of the various Provinces and the Suprenu^ Court ; and with your Lordships' leave, I will refer to some of the interpretations which have been placed ui)on the matter by the Courts with regard to Municii)al Institutions and the meaning of that expression in sub-section 8 of section 1)2. The uase I would first refer to is the case of Slaviii v. The Corporation of (h-illia, which was first rej)orted in HO U. C. Q. B. page 159, but is now to be found in the first volume of Mr. Cartwright's collection, at page ()88. Lord Watson- -What is the date of the Judgment ? Mr. MacI;Auen — 1874. I will now read from page 702. I F '\ ■3!" ,'f ^m 1-1 ;ll 60 LiquDf Prohibition Aiqwal, 1895. ' ' The Lord Chancellor — I see the Chief Justice in the JiKlgment lie gave repeats your ol).servation, l)ut he does not shrink from the generaUty of it, Mr. Maclarp^n — Yes, my Lord. As I remarked, I woukl take out of that all that is assigned to the Dominion in section 91. Lord Da 'FA' — Of course you understand your own argument hest, but it does not seem to me that that advances it mucli. I can understand the argument if you confine it to Municipal Institutions, which by section 129 have certain powers continued to them, arul that this is an Act dealing with those powers and an Act relating to ^lunicipal Listitu- tions as they exist ; but then you must go the whole length, you know. Lord Herschell — Then tliere is this difficulty. These powers may not have been primarily conferred. They exist, we will suppose ; but can they be repealed, and then after a time be re-enacted ? Tiuit is to say, a Province that had not had any provision of this sort before could not ci eate, but the Province that once had had it, could — which would be rather an anomaly. Mr. Maolaren — I think we must admit that the powers of all the Provinces would be the same under section 92. Lord Davey — Is that so, because section 129 continues to til em their existing powers ? Lord Watson — And on the other hand, although section 129 continued their existing powers, it gave a Province or a Provincial Legislature no power to meddle with these enactments. This is an action of the Provin(;e, and th'it is what is comi)lained of. Section 129 is very -express. The laws of each Province may be " repealed, abolisluMl or " altered by the Parliament of Canada or by the Legislature of " the respective Province, according to the autliority of the " Parliament or of that Legislature under this Act." The fact liiat it stood as an enactment in 1H()7 does not give any power whatever to any Provincial Legislature to deal witli the matter. fji(jii()r I'niliihitidii .ijipcdl, liS!);"), 07 Lord Herhchell — Wlien did these provisions which yon say are now re-enacted cease to exist '? Mr. Maclahen — They were repealed in 1H()9 by the Province of Ontario, and then re-enacted. Lord Herschell — But perhaps they are still in force ? Mr. Maclaren — That was the ar;■'- Liquor I'roliiJiitioii Apiical, lHt)5. C.l) Mr. Maclaren — A new by-law. The Act of 1(S()0 luul been re-enacted by tlie Provincial Legislature. Lord Watson — And that authorised the nnmicipality to pasH the by-lf),w ? Mr. Maclauen — Yes, which was cliallenged by Slavin. Ijord Wathon Leijislature was ultra n'rcs ? On the ground that the sanction of the Mr. Maclaren — Yes. In the case of The (Jiicck v. 'Duilor which is reported in the same vohnne. (86 U. C. Q. B. 1H8.) Lord Watson — Can you tell me how you reconcile that with the case of liussell ? Mr. Maclaren — With your Lordshijis' i)erniission I was l)roposing to take that u]) a little later. In the Province of Nova Scotia tlie question also arose in the case of Ktrfe V. M,Li'Uiuiii, which is reported in the '2nd volume of Cartwright, connnencing at page 400. I read from i)age 409, but I will point out first that on page 40H, Judge Ritchie, in giving the Judgment of the Court, considers very mach the questions which came before your Lordshi})s in the case of Hoihic v. Tlir (Jinai, so that I need not refer to that, and will only (piote a few sentences on [)age 409, where he says :— " In addition to what I have ahioady .iaid, I may remark tliat we are to a.s.smnt^ that the franiers of the I^ritish Nortli America Act knew of the h'Lrisiation which was in force in th(! several Provinces, and at the time of its passing, the hiw in this Province relating to the granting of licenses for the sale of intoxicating licjuors recognised the right of the Court of Sessions to refuse licenses for the sale of them in small (juantities within their respective comities, and that Act did not njpeal tlu! Provincial Law then in force, so that when the right of granting licenses was conferred on the Provincial Legislatun^ it may very reasonahly be presumed that the intention was that the right should continue to he exercised in the same manner as it was then exercised." Tliis matter also came before the Courts, and has been before the Courts of the Provinces and the Sui)reme Court on a, reference to the C!ourt of Appeal for Ontario under a Provincial Act very similar to that which is now under consideration, itnd in which the Court of A[)peal for Ontario considered the question, and I have here the Judgments. .Si ■'■aiS 3 ;!,. Ml!> >* / W.'S 70 Liquor Pnihihition Appeal, 1895. i Those Judgineiits have heen furnislied to jonr Lordsliips. They me three Judgments which are not yet printed in Mr. Cartwright's hook, and they are furnished in printed form. The lirst to which I will refer is the Decision of the Court of Appeal of Ontario (In re Local Option Act IH 0. A. E. 57'i), with regard to this very Act. Under a Provincial Act this very (piestion was referred to the Court of Appeal for Ontario, with certain questions which your Tjordships v^'ill find here. The lirst question is suhstantially the same question as we are now considering — the jurisdiciic^r. of the Ontario Legislature fis to this very Act, and it was sulu.uitted hy the Lient^nant-Governor in Council under the arithority of a, Provincial Act to the Court of x\pi)eal for Ontario. We have the Judgment of the Chief Justice of Ontario, in which his Lordship reviews the legislation to which I have heen calling attention, and which I need not read. Lord Watson- Judgment was ? -Can vou tell me what the date of this Mr. Maclauen— Septemher '23rd. 1891. This question was referred to, and after a review of the legislation, the Court of A[)peal for Ontario answered the question, and gave as their o})inion that this legislation was not ultra rlri's of the Province. I need not trouble your Lordships with reading that part which is a summary of what I have heen endeavouring to give. His Lordshi}) goes on to say : — " U mlor the Confetlerution Act ' ^liuiicipal Institutions in tlie Province ' are in the class of subjects within exchii^ive Provincial rtfjfuiation . It may be safely said that there is no ai)i)arent intention in the Confedei'ation Act to curtail or interfere with the (>xisting general powers of Munici|)a,l Councils, unless tiie Act plainly transfers any of such existing powers to the Dominion jurisdiction." Lord IIekschell — If there was no intention to curtail any existing powers they were all preser\ed, because they were inider Acts which were preserved. Lord Watson — It rather misses this point, that the intention of the Act clearly was to distribute these powers between two Legislatures. Lord HEiiscHELh — No ; to distribute the power to deal between the two Legislatures. Then it says there is no Liquor I'nihil ition Appeal, 1805. 71 apparent intention to curtail or interfere with the existing powers — the existing powers were all preserved. Mr. Maclaren— Under Section 129 all existiiig l(>gisla- tion was preserved. Lord Herschell — Of course it might he altered, if it was within one of the Dominion suhjects, hy the Dominion. Mr. Maclaren — Yes. Lord Herschell — The (juestion is not curtailing the existing ])owers, the question is dealing with the suhjects which have heen connnitted to the Municipalities. Lord "Watsox — The argument is verv nnich the same as you are addressing to us. The argument in the lirst i)art of the learned Judge's opinion is really to this effect : that prior to the passing of the Act of 1; ■4 ii U: n m 74 I/i(jit(>f PniJiihItiiiii Jjijiral, 1805. I ;■ a case in the Province of Quebec. The Province of Quel)ec had legislation similar to that of the Province of Ontario. Lord Davey — Your section that you are defending pro- hibits the sale of liquor altogether ? Mr. Maclaren — No, my Lord. Lord Davey — Only in retail ? ' Mr. Maclaren — I was coming to that ; that was a later part of my argument, and I was going to take that up presently. The effect of it is this Lord Hbrschell — Does section 18 of 58 Vict. c. 5() (Ontario), define retail ? Mr. Maclaren — Yes ; retail, your Lordship will find defined in the Ai)pendix of Statutes. Lord Herschell — But did this Statute itself deiine retail ? ' • Mr. Maclaren — It defined it in this way, that it said what was not involved in that — no license was necessary — your Jjordship will find that provision on page 4 of the Joint Appendix of Statutes. Lord Herschell — But those are the earlier Statutes. I am speaking of the Law now in force. We are supposing those earlier Statutes to be swejjt away except so far as they are dealt with in the Act of 37 Victoria, chap. 32. Mr. Maclaren — It referred to taverns and shop licenses, and your Lordship will find a definition on i)age 23 of the Joint Appendix of Statutes ; and perlia})s I might just deal with that as exi)lanatory of the Act. The License Act of Ontario, which is chapter 194 of the Revised Statutes of Ontario, intituled "An Act respecting the sale of fermented or spirituous li(piors," contains the definition. That is : " 2. Wht're the following words occur in this Act or in the Schedules thereto, they shall he construed in the manner hereinafter mentioned, unless a contrary intention appears : ' 2. Tavern license ' shall mean a license for selling, hartering or trafficking hy retail in fermented, spirituous or other liquors, in (juantities of less than one quart, which may he drunk in the inn, ale or heer-house, or other house of puhlic entertainment in which the same liquor is sold : ' 8. 8hop license ' shall : I Ti i."il I.iqHDr I'mliihilloii Appeal, 1895. 75 •i'l inuim a license for selliiij,', l)iii'teriii^' or tnirtickiiij; by rctiiil in siicii liquors ill sliops, stores or places, otlier than inns, alo or bo'jr-houses, or other houses of public (mtertainineiit, in iiiiantities not less than three half-pints at any one time to any one pi'i'son, anil at the time of sale to be wholly remoscd and taken away, in (|uiintitius not less tlian three half-pints at a time." Then : " 4. License l)y wliolesale ? " — — Lord Herschp:ll — That does not apply to retail ; " tavern license " means selling by retail in ([Uantities of less than a (piart. and "shop license " means s(>llinnse. Mr. Maclaren — I thitd< so — anything under the ijuantity authorised to b(> sold liy the wholesale license is retail, because yoiu' liordship will see that the word retail is used both in the definition of a tavern license and of a shop license. Lord Watson — Yes ; retail is used both with regard to a tavern and a slioj). Mr. Maclaren — In answer to the (juestion put as to whether this Act is a total i)roliii)ition, my answer is that it is not. The Act provides : " The Council of every township, city, town ami incorporated villa,!j;e may puss by-laws for prohibitin.i^- the sale by retail of spirituous, fermented or otlier manufactured licjuors in any tavern, inn or other ' M; m m'\ 76 Liifuor Proliihitidii Jpjx'dl, 18'.)5. hoiiHc or placo of public tintortainmcnt, and for prohibitiiif,' altogether the Hiilo thuroof in shops and placoH other than houHes of pid)lic enter- tainment. Provided that the by law, before the final passin<( thereof, has been duly approved of by the electors of the nmnicipality in the manner provided by the sections in that behalf of the Municipal Act. Provided, however, that nothin;,' in this section contained shall be construed into an exercise of jurisdiction by the L 'jifislature of the Province of Ontario beyond the revival of provisions of law wliich were ' . in force at the date of the passing,' of the Hritish North American Act, and which the subsequent legislation of this Province purported to repeal." > Lord Herschell — I can see the reason of that. That is to save them if it turns out that they have not power to enact, hy faUing hack on the fact that the okl statute did not repeah Mr. Maclaren — Yes, I think that was the intention. The Lord Chancellor — I am afraid it does not affect it much hecause if they were right they were right, and if tliey were wrong it wouhl not help them. Lord Watson — That question is not hefore us at all. The Lord Chancellor — If it was not repealed it would he in force. Lord Watson — That is not the question hefore us. There is nothing to raise the point for our consideration just now as to what the effect of those Statutes may he. Mr. Maclaren — I suhmit that this Act which is now before your Lordships is not an Act of total proliihition hy repeal. Lord Herschell — They can sell if they sell in less than a dozen bottles or live gallons. Mr. Maclaren — Yes, municipalities have two powers under this Act of 1890. Lord Davky — I sup})Ose it being })art of the o])ject of the municipal institutions to })reserve order and to prevent disorder in a nmnicipality, they would have })Ower to make regulations for conducting traffic in such a way as to prevent drunkenness. Mr. Maclaren — Yes. ■mH Llijiiiif I'roliihilion .\i>i>i(il, I8'.)r*. 77 Lord Hkus('iii;i,l— Ar(^ yon goin^ in ar is anything in section 91 to take it out of the full o{)eration of t\w Act. Lord Watson — If you can show that the enactments in the Statute in question do not go heyond regulation, it strikes me that Rimsrll v. The (Jiurn is a judgment in your favour, because it does decide that laying down the lines of trading is within the coni})etency and helongs to the Dominion Parlia- ment, yet there resides in the Local Legislature the power of regulating local sale, and the cpiestion is whether you can show that this is regulation. Lord Davey — Regulation of the Li(juor Traffic for municipal purposes. Lord Watson — It is a (piestion of regulation and the powers of regulation and if the Dominion Parliament were to !'( it ^ 7fi Ijliliior Prolilhifiini Ajtjtfdl, '\H*^'^. I ;l . give power to a innnicipality to puss ii Ity-lnw l)y wliicli no drink could !)<' sold between H a.m. and 10 |).m. I am iiielined to think that that would raise the (piestion of mere refj;idati(»n. The Lord ('hancellor — We will denl with that when it arises. The only thing I should say as to that would i)e tliat it was in form regulation i)ut was really intended to lie pro- hibition. 1 suppose; if that proposition were true you migiit make it from (> a.m. to 7 a.m. Lord Wathon — With an liour for meals. Mr. Mac'Lauen — This Aet of l.SDO as your Lordships will see is an Act amending the License Act of Ontario, and I submit that the ))roper test of this Act as to whether it is valid or not is to look at it not so nnich as an isolated piece of legislation, but to look at the ettect of the Act as amended by this amending Act. It is part of an Act amending the Liquor License Act and is now end)odie(l in it. Lord Hkuscheli, — But it does not follow that you can amend that Act, does it ? That is the whoh; (piestion. There were many Acts which y(m could not amend after the Con- federation Act was passed. I do not see how you advance your case l)y saying that it is merely the amending of the previous Act. Mr. Maclaren — It is an amending of the Act which was l)efore your Lordships in Ifodiir v. The (Jticvii. Lord Herschell — Still something in that Act may be perfectly valid, but you may amend it for example in this way. Taking tln^ case of llndyc v. 'I'lir (Jiircii as good law, you might alter the hours but that would not have been good, because there was an amendment of the Act ; it wouhl be good if there wer(> no such Act existing at all. Mr. Maijlaren — Yes. In the License Act of Ontario, of which this is an amendment, the h^gislatnre has made three classes of licenses: tavew slio}) and wholesale. Tavern may sell one quart or les wnich may be consumed on the premises ; the shop may Scil in (piantities not less than three half-])ints, wliich shall not b(> consumed on the premises; the wholesale may sell not less than live gallons. Now the I 'I I LiifiKir I'riiliihilltiii .lii/nnl, iMD"). 71) efTet't of this Act of ISIM) is tliis. ft siiys in cITcct to the iniiiii('i|)iiliti<\s — " you nuiy pass ;i liill tliiit (lici-c sluill he no tavi'i'ii licenses «^'iiinte(l " : tluit would Iciivc slio|) and whole- sale ; "or, you may pass a l>ill sayin<,' that there shall he no more shoj) licensees f^ninted " : that would leave tavern and wholesale : or, you nuiy pass a hill (H' hills sayinj^'that "there shall he neither tavern nor shop licenses ;^nanted " ; in any case there niif^ht 1)(» wholesale licenses in the unuii(Mpality, that is for the sale of live ^'allons, or not less than one do/en hottles. So 1 suhmit that it was (piit<> conij)etent as a license law and as a retaliation — a re;,ndalion of the drink for the Province of Ontario to (Miact, or to authorise nuinici|)alities to enact, that there should not he a total prohihition of the sale of lifjuor, hut that ther<> should he not less sold in a |)articular munici- pality than live j^allons at one time or less than a do/en hottles, and that that legislation can h(» sustained under a polic(> re<,nilation for the amendment of the trade in intoxicat- in;!,' li(|uors. And that is the Act which your ij()rdshi|)s have to consider, so that under this (piestion which we are now considering', it is not a (juestion of entire prohihition at all : it is a matter merely of the withholdinj^'of tavern licenses and of shop liccmses; so that I suhmit, that even thou^di in answer to some of the previous (juestions, your Lordshiits should hold that the Province has not the power The Lord C!hancellou— Putting it in different language to make it more intelligihle, that licjuor should never he sold except wholesale. Mr. Maclauen — That is with the definition of wholesale. Lord Watson — It is a i)roliihition of the retail trade. Lord Heusc'HELI. — The sale of twelve hottles at a time might even he calhnl retail. The distinction, as I understand it hetween wholesale and retail generally, has no application to quantity, hut it means that the wholesale dealer is a })erson who sells to other dealers to retail, and the retail dealer is the l)erson who sells to the pui)lic. The Lord (^hancellor — I rather think our law in this country makes a distinction. I think it is 2 dozen hottles which constitut(^s a wholesale dealer — a wholesale dealer cannot sell less than 2 dozen hottles. ! .' f !:i ':^| S555B!" SO Iji(lii(ir I'nthihitiiiii A/iju'dl, 1H1)5. Lord Watson — I think there is an arbitrary distinction made by statute, l)nt tlie real distinction is that the wholesale dealer does not sell to private customers or is supposed not to do so. Lord Heuschell — Wholesale I take it means selling it to other people to reta:il. Lord Watson — Yes; and the retail dealer I understand sells to the public who consume. The wholesale dealer does noi sell to the consumer but he sells to those who sui)ply the consumer. The Lord Chancellor — It comes to this you know, that any one who cannot afford to buy a dozen bottles can get no licjuor at all. Mr. Maclaren — That would be the effect. The Lord Chancellor- -That is the intended effect. Mr. Maclaren — That is if the Municipality should pass a Bill abolishing not only taverns but shops. Of course it would be to prevent the sale and the purchase. If your Lordships will allow me there is one other case to which I wish to refer upon this point but I will not detain your Lordships by reading it. It will be found in the book of sj)ecial j)rinted cases, and it is the last of the three contained in it Lcpiiie v. Laiircnt. I cite it, especially because it embodies tlie judgment of the C-ourt of Appeal of the Province of Quebec which is not elsewhere reported. It will be found on page 17 of these printed cases, I refer especially to the part of the case commencing at i)age 18, in which his Lordship Mr. Justice Lynch refers to a case which had been decided— tlie case of SuUc, and also the judgment of the Court of Appeal which is not elsewhere reported, as was stated by his Lordship Mr. Justice Lynch, who acted as one of the Counsel in the matter. He quotes, no doubt, from the printed case which went to the Supreme Court, and he refers specially to tlie remarks of the Court of A})peal of the Province of Quebec. I first refer to the remarks of the late Hir Antoine Dorion, and then on page 19 to the remarks of Mr. Justice Enmsay. Then at the foo<^ >f page 19 your Lordships will fhid the remarks of Mr. Jr: tice C'ross, which i ^ ( i^Hf^i^ ^■'^^J^vjf^fff^cffWV TfVr *f»^ . .fsstflnifr'^ Liquor Prohlhitioii AppniL IS',);' 81 put in a very stronp; way sonio of tlio points and ar^nnients to wliich 1 was endcavrtnri'i!/ tocall your Tionlsh'p.s' iittention upon the matter. ', Adptininl for n sJnn-t tlinr.^ Mr. Maclaren — JVfy Lords. I think the only other case to which it is necessary to refer yoin* Ijordships iit the j)resent time on the suhject I was addressin<^ yon upon liefore the adjournment, is the Judgment of Mr. Justice I'aschereau in the case of Huson v. Soitili Xonricli, which raised this same question. Lord Hersohell — Where do you find that ? Mr. Maolaren — It is in the Joint Appendix of Statutes, hegnniing at ])age 81. The Judgment is one of considerahhi length and part of it covers tlie same ground as that which. I have heen going over, and is referred to in the other Judgments. I will refer your Lordships only to some short f":tracts. Lord Watson — I see this was in January, IHOf). Mr. Maclaren — Yes, the same day as the Judgment was given from which the present Appeal comes. Lord Watson — He M^as the other Judge ? Mr. Maclaren — The 6th Judge. Lord W^atson — The Judge who hrought the halance to an equipoise ? Mr. Maclaren — He was one of the tirst five — one of the majority in the first case hut he did not sit in the second case. He was one of the three who dismissed the A})peal of Uiison v. South Norwicli, U})holding the validity of the Provincial Act, hut he did not sit in the second case. Lord Wat.son — Husoii's case was the iirst case? Mr. Maclaren — Yes. Lord Watbon^ — The result of the two cases, hecause they seem to have involved the same (]uestion very much, and the 82 fji(liitir I'mliihilioii Apjual, 1H\)^). m same considt'i'iitious, was that the SiipreiiK^ Court was ecjually divided. Mr. ^rACLARKN--Yes. Lord Watson — Though tliere was k majority in the case now before us. Mr. Maclauen — Yes ; there was a majority the oth(>r way in the case of Ihtynii v. Sittttli Sdnrirli whicli invohcd the same point. Lord Watson — Arising frorn the fact that the o])inion of the whole Court was taken, the Judges were etjually divided. Mr. Maclauen -That was tlie resuU, and I refer your Lordsliijjs to this partly because his Lordslii[) discusses the (juestion that was put to me by one of your Lordshi})s a short time ago, and that is about tbe case of ///(s.sv// v. 'I'lir (Jnrrn. His Lordshii), on ))!ige 84 of the Joint Aj){)endix, is discussing the " Canada Temperance Act," which was in (|uestion before this J3oard in the case of llitssrilx. The (Jiiroi, whicli he calls the " Fedi>ral Act of 187S," and he is [)ointing out the distinction on pag(! 'M between that Act and the present one. He reters to your ljordshi})s" Judgment in the case of Hoflfjc v. Thr (Jidfii, on wliich he says : — " The Privy Council in llnihic \ . Tlir iiiiirn [?i\\\ Appeal Cases 117), considered tliiit the 'Ontarit) License Act ' does not coallict with the ' I'V'deral Temperance" Act of 1H7(S.' ,/ foiiiori wonld J say, two prohibitory Acts need not nt^cessarily conflict witii one another." Lord Watson — I do not lollow what k Jnrilnri there m<>ans. They were held to conflict because one was ii prohibitory Act or a proliibitory Act was cont(>niplated. It was suj»porl(Hl on tbe ground that it was a regidating Act and not prohibitory. Why should it be : [ think his Lordship meant to ref(>r to the application of the two Acts. Tjord Watson lict me put the pro})osition before you. If a power of \. to grant a prohibitory Act is not inconsistent 1 jX!i^^W'fm^f^!^^^WW^^- ?^»SPPWi5l5P|?wP!WP 1 jUjiuir I'roliihitldii ApjirdI, 1805. 83 with B. grautinj^ a regnlatiiif:; Act, how does it follow (( Jnrtiori that the })ower of A. to grjuit a ])i-oliibitorv A('t is not incon- sistent with B.'s granting one ? Mr. Maclahkn — I tliink thiit is to he taken into aeconnt with the remarks that t'oHow, in which his Lordship goes on to point out tiie (htt'erence hetwe(>n the Aet of 1878 ;ind the Act of 1890. which was in question in the case under con- sideration . Lord Watson — He means that the [)rohihit()ry Acts may l)e of such a different character. Mr. Maciaukx — Yes; and he goes on to considcu- it in the seco id i^aragrapli following that I have just read, and he says :— " The Ffxleml Act cannot at all be considered as ief^nslation nwv the powers of the ^lunicipalities. [t does not purport tu lie aiiythiiij,' of the kind. It liit.s no connection whiitever, and eouhl li'.ve none, with the nmnicipal system of the diU'erout Proxinces. It is controlhul iiltoj^ether by a majority of federal electors, but that, it is ol)\i()iis, may not l)e at all the majority of the municipal (dectors in a municipality, when that is reijni 'ed, as in tlie Province of fj)uebec, and in fact under the Statutes at preserit in force in some of the Provinces, wiiereby women, for instance, are entitled to vote at munici[)al but not at federal elections. Likewise, for the provincial electors, where, as in Ontario, these bydaws under tiie Provincial Act depend on their votes, the majority of them may not be at all a majority of federal electors, or rirc r, ran ; and the Respondents, 1 assui.ie, would not luive any objection to submit to the Temperance Act of 1H7H, if it was put into force in the county of wliicli they form part. All what they claim is Home Rule — tlie rij^ijht to put a stop to drinking and to taverns within their own territorial Hunts, even if the rest of the province or all the other municipiilities of tlieir county choose to do otherwise for their own pe(ii)le. They should \n' as free to do so now as they were before (,'f)nfederalion, thouyli the Pro\inees of British Cuinmbin, Prince I'.dwanl Island, (^lU'bec, or nil of them, nnd all th(.' other nninicii)alities of Ontario, may favour within their teri'itoriiil limits a ilitl'erent policy. \\'henever the Federal Parliiunent prohihios entirely the li([Uor traliic in the Dominioii — assuming always, for tiie purposes of this case, that they liave the power to do so— the Uespoiid(Mits will not complain : the very object they are now contending for will lie attained. A\'hat they ask is to be at liberty to do so for themsi'lves till Parliament does so for the wdiole Dominion. And agii,in, by an express provision oi the Teiujierance Act of 1H7H, if the Act is rejected by the federal electors, it cannot be submitted to them again for a period of three y(>ars. Now, if within these three years a local municipality and a majority within it of the provincial or municipal electors, where that M' I Rum ill lilt 84 Liqvor Vrohihitiun Jppral, 1895. is required, desire to prohibit the liquor traffic within its limits, is there anythiiif,' in allowing them to do so inconsistent with the Temperance Act of IftTH, or repugnant to it?" Lord Watson — All that is luinlly iir^ninieiit. It merely goes this length, that it is a henevolent sort of legislation that advances the line of legislation that has been followed by the Canadian Parliament, hnt if the Canadian Parliament have the j)ower to initiat(> that })rohil)itory legislation, where resides tlie i)ower of the Provincial Parliament to carry it further by supplemental legislation ? Those are the points T should like you to aildress your argument to, or at least those are the points that raise difficulty in my mind. It is possible that it is not insuperable by any means. Mr. Maclaren — I'he argument on that point would be that this power which the Provinces exercise and profess to give to the municipalities under the presei^t Act falls short of the power of the Dominion. Lord Watson — In other words, though the Dominion Parliament has power to initiate the legislation and carry it so far as to stop there , it is within the power of the Provincial Parliament to step in and carry it further. On what do you found that ? T know what you found your arguments on on the first point, namely, that they derived it from the legisla- tion before 1867. I'liese observations you are reading us now do not proceed on that argument. Mr. Maclaren — No. Lord Watson — Because, if that argument were well founded to the core, it would follow that the Provincial Legislature have the exclusive power of beginning the legis- lation and carrying it on. This assumes tnat the Dominion Parliament has the power of initiating. I want to know where you find it in the Statutes. That throws overboartl altogether the view that the Provincial Legislature had it because it was inijilied in the very words " Munici[)al Insti- tutions." This assumes that that did not oust the J)ominion Parliament, and as far us I can see he is going to say that the Dominion Parliament must have carried it on. If tiiey had carried it on, by the same rule it would apply to all the different Provinces of the Dominion. WWWTW" Lii[ii()r Proliihitivii Apjicdl, 1H1)5. 85 Mr. Maclar?:n — I think tliis is to l)o interpreted hy the second t'ol]o\vin<^ mirugriiph in wliieh his Lordshii) asks the question : — " And can it not be said of the enactment now under consideration what their Lordsliip.s said of the Statute in //<»/(/(' v. The Qturn, tiiat it is 'confined to Municipalities in the Province of Ontario and is entirely local in its character and ojieration.' "' That, I think, is to h(> read in connection witli the preceding paragrai)h. Lord Watson— Then on the other hand if that i)ower of prohibition is given to the Dominion Parliament, why should not they have the j)0\ver to carry it further '.' Where is the limit on that power of prohihition, to put my difficulty more shortly before you ? Where is the limit to this power which at a certain time deprives them of power to go further and hands over the ))ower to go further to the l*rovincial Legis- lature ? Mr. Maolaken — This would ap[)ear to my miru' rather to be an exercise of a [)ower which falls short of that law which might be exercised by the I'rovinc*^ when the Dominion has not legislated. Lord Watson- -What is there that gives it to the I'ro- vince after the Dominion have gone so far ? Because if this argument has any fomidation that is legislation belonging to the Province. It follows on that reasoning if it were well founded according to my view that it was the Province and not the Dominion which had the power to carr) it I'lis distance. Mr. Mact.aukn— That this might be a jjower the Province would have and might legislate upon so long as it Wks not overridden by any Ijegislation of the J)ominion on one of the subjects conanitted to the Dominion. That is part of his Lordship's view, that tliis was a local matter — a Police rei^ulation. Lord Watson — That the held was unoccupied. Mr. Maclahen- -Yes, that the field was unoccupi(>d, and I think that has force in this respect, that although the Canada Temperance Act wiuch we shall consider further in IhuiitU V. Tkf ijHccn presently ?4 ',]^Ji.H»Cid, 1H5)5. IjOUD Watson — That is a (loctrinc which was apphcd in a recent case on tiic (|Ucstion ol' l)ankiu[)tcy, hut what I wish to ask is this — Has this Board ever affirmed tliat you couhl have a field of tliat sort partly occupied where there was not an express <'lause authorising^' it ? Lord IfKHscHEiJi — I. sup])ose you point to the express clause as to matters of a local nature and you say, dealing with th(> condition of drinking and the amount of drinking, and the limitations ui)on drinking in a particular Province is of a local natur(» ; that it may he that the Dominion rarliameiit with reference to the Dominion generally and its legislation if it touched all Provinces would override anything the Province did, hut in so far as the Dominion Parliament has not dealt with it the Provincial Legislature may deal with it as a matter of local character which touches nobody outside the Province. Of course you could not con- tend that, if it is within any of the specific clauses of section \)\. If it is excluded by reason of its being trade and commerce, then you would be out of C'ourt. Mr. Maclaren — Yes. ]jord Mkrschell- — On that point this Board has not yet pronounced, but they left it o\w.\\ in the case of llnsscll v. The Queen. In UiisseU v. The (Jiiecn it said that the Dominion Parliament v.as not exchuh'd from dealing with it as being mertdy a local niatt(>r. because it was of interest to tlie Dominion Parliaineiit that there should he a iniiform regula- tion of t!u^ li(pior traffic throughout the whole Dominion. But that would still leave open the question whether it was competent to the Proxiiicial Legislature to deal with it as regards its own Province in ;i numner not inconsistent with any Dominion legislation. Mr. jVIaolaren — Y(!s. Lord liERscHEi.j, 1 ha\e been refreshing my memory by referring to the case of llimsiil v. The (Jiieeii. I do not think there is anything in Itiissill v. 'I'ln ijimii whii-h i)re(dudes that |)oint. Lord Watson — I tliiidi in lliinsell v. The (Jiteen they distinctly held that the legislaticm in (pu'stion there was not ^mrr I itfiKiv I'mliiliilimi Ajijii'ii}, IS',)'). ST lej^isliition nndcr suhscctioii 1(> ol m lucicly local and priviiU" iiatiirc. Tlicy expressly I'lilcd that. Mr. M.vcLAitEN — Becnnsc it was i^fciirral lor the \vli()l(> Doniiuioii. Lord Davky — Tlio Icf^dslatioii in Unssrll v. 'I'lir (Jiimi was defended on tiie /^n'oniid of (lie j^eiieral words as to ^^ood order. Mr. Maclauen — Yes. liord Hkkschell — They did not sav that witiiin ea(di *■' t particular Province it would not he a matter of a local natnre wliicli the Trovincial Parlianient could deal with. What they said was, that dealing with it as they were doin^' as a general matter for the whole of Canada was luit trencdiing ui)on the provinve of the Provincial Legislature to deal itself with matters of a local character. That was all they said in Rmst'll V. The (Jihrii. Mr. Maclaren — That. I think, is the [)oint. Lord Herschell — Thateertaiidy leaves open the (juesiion whether the liquor traffic could he iirohihited or put under fetter in a Province by a Proviiudal Legislature in a niainun* not inconsistent with Dominion legislation. Mr. Maclaren — We have then to consider — and 1 think we cannot claim more than that — that this Act which we ai'e now considering might, perhaps, he ov(>i'ridden hy J)oniinion legislation, if the !)omini of its powers. Our ckim is that until the J)ominion so l(\gislate, this legisiatW')]! )•> gooil. iH course we ^hall he told in the fh'st place lil?«u tliis is rt-ally cMuHicting with the Cana(hi I'enifwi-ance Act of 187H. Lord fefERscHELL— That is another (juestion. Mr. Maclaren— That is the other ((uestion. My answer to that is that this legislation which is now in force here would in the nature of things only ap[)ly to places where the Canada Tem[)erance Act is not in force. The Canada Temperance Act, as your Lordships are aware, is an Act which is to he brought into foi'ce by proclamation of the Governor-General after an affirmati\e vote of the Federal dd Liquor Vrohihition Appeal, 18U5. ! I t electorH, that is, the electors who elect the Memhers to the House of (.'ominous. Until that vote is taken, and until that ))rochunation of the (lovernor-General issues jjuttinj^ the Canada Temperance Act in force, so far as regards any portion of any Province the Canada Temperance Act does not exist. It does not i)ractically exist, it is not a law in any part of the Dominion until it is put in force by a proclamation. Lord Watson — That Act gives local option to certain districts as to whether they will or will not adopt its provisions as part of the measure ? Mr. Maolarkn — Yes. Lord Watson — ]3ut then it is (]uite possible that a district which has that local o})tion, the o})tion between two things under the Act of Canada, may be deprived of an option by some vote or regulation of a nmnicipal body. Mr. Maclaren — I hardly think that could arise in this case. The present Act applies only to local munici])alities, that is, to small areas, not to parishes in the Province of Ontario, but townships, villages, towns, or cities. Those are what are called local numicipalities. Lord Watson — The legislation of Canada if not adopted gives them one rule ; your legislation if adopted by these authorities may apply a different rule. Mr. Maclaren — In small localities, that is as a rule, with the exception of cities. Lord Watson — A man who has succeeded in preventing the Canada Temperance Act ap[)lying may find himself under this Statute. Mr. Maclaren — If the Canada Teni})erance Act is not applied in the larger area, that is the county ; as to cities they might be co-term inous, but if the C^mada Tem})erance Act is not applied ni the larger area of the county because it is not a matter of general interest Lord Watson — Any Statute of that sort which would carry prohibition so far is by i)lain implication an empowering Statute ; it enables them to do what is not forbidden under ^m Liquor I'ruliihiliiiii Apjx'ul, 1HU5. HI) that \ct. So far as the Ij^^'islatiire of Caiiitda can do it, it authorises, suhjcrt to tiicsc rcstriclions, the sale of H((nor iiiid the t'Oiisuinptioii of H(|nor. On theotliei' liaiid the Ijegishitnre may seriously interfere with tiiat Act. Mr. Maclaren — I think T may say that with reference to the Dominion le action. Lord Watson —It is an Act which is ])rovi(hn^' certain restrictions, hut it is an Act plainly, v/hich in suhstance, authorises the trade in li(|Uor. wholesale and retail, to he carried on in the Provinces. Suhject to those r(>strictions, and as long as they are ohserved they are within the law. The introduction of the local areas and the power j^nven to local areas to prohihit on some other ground and h)r some other causes, surely is an interference with the system estahlished hy the General Act. Lord Dayey — Then the Tempenince Act is only what it is the fashion now to c.ill an adoptive Act ? Mr. Maclaren — CVn-tainly. Lord D.vvEY — And if not adopted i)y the l'rovinc(> it is not the law of the Province ? Mr. Maclaren — ISot hy Provii.'ce- — hy coinities — snuill areas. Lord Watson — That alters the (juestion. The law does not apply until that happens, hut it is the only law restraining them until it is adopted. They nuiy he free to sell and huy without it. Lord Herschell — Take this case. Su))])osing your Act had heen rei)ealed, or purported to he repealed, would the l)assing of the Canada Tem})erance Act have prevented its ojjeration in the Province of Ontario, or such parts of the Province ol Ontario as have not ado})ted the Canada Temperance Act ? I do not know. Mr. Maclaren — I do not know why it should. Lord Herschell — If so and if it is not impliedly :i 00 LitjiiDf I'r iliilii'liiiii Ajtjx'iil, 1805. ! rf'poalcd by it, is not that one tfst as io wlictlicr it is iiicoiisistt'iit ? Mr. Maclaren — I slionld think that would he the jji-opor test. Then T wonhl refer your Lordships also to what Mr. Justice Tasehereau says on jja^e ;).S, referring,' to the Province of Qiiehee, which throws some U^dit on tiiis question : — " I nwx\ hiinlly say tliut it roHults dearly from it whatovcr its conHcquonccs may Ix- on tlic ([lu-Htion now unik'r considoration, tliat the whole system of le,u;islativi^ siipei'vision over the liquor trattic Avas so eiosely identified witli the iiuinicipal system of tiie I'rovinee," (tliat is tlj' I'rovinee of (i)iiel)ee, and we liave l)ec;ii hitherto speaiiinf^ chietly of the L'rovince of Ontario) " and so hiended with it that they formed only one. Tlie • Constitutional connection ' hetween the two to use Mr. .lustice Burton's expression — was complete. .\nd up to the present (hiy the two are so worked and put in operation as one, that every year, in a larjje numher of municipalities, the only, or at least the prnicipal (piestion at the election for councillors is prohibiticm or no prohii)ition '? This is a matter of public notoriety in the l'rovince. Now, not long after the coming into force ( the " British North America Act" the (Quebec Legislature, in 1H70, enacted m- Miiiiiiijitil Code, aiul in continuance of the policy tliat had theretofore prevailed in the I'roviiuie, of treating the control over the linient that by middng the prohil)ition total within the Province ; that may have been what wiis contemplated by the Act of 18()7. Mr. Maclauen — Of course I have called your Lordships' ' -1 !i;"- w: iittcntion to the tact tliiit this Ac-t we arc now considering is not ill) Act of total ])roliiliitioii. lionl JIkuschkll - If there was no powci' to niiike this enactment tliere seems strong argument in fiiNoui' of there having heen no |>o\ver to repeal it. and if so a strong argument in favour of this |)revious legishition heing still in U)Wv, and the (|uestion is whether that is overridden in tliiit case hy the " Canaxhi Tem|)enuu.'e Vet" until jiny |»Iaee within the Province adojjts it. If they do not a(h)|)t it it is (hflicult to see what can have got rid of the old law. Tt is a little sti'ange why the (|uestii>n was not asked whether the |)rrvious statute had heen validly re|)ealed, het-ause there seems to he rather a dilemma. If it cainiot he validly (Miactecl it is dil'ticult, to see that the former Act has heen validly re{)eale(l. hecause it is deiding with precisely the same suhject-nuitter. If it could not he validly rejiealed then it is in force. One of those ([uestions is asked. Do you know why the otluu- is not ? Mr. i\rACL.\i{KN — T was speaking of tlie Ontario legisla- tion, and conlining myself to that. Lord IIkhschkll — The (piestion is not put whetliei' such an enactnu'nt is in force. The (juestion is put wiicther it had jurisdiction to enact the LStli section. It nmy not have had jurisdiction to enact it, hut the Act may he in force hecaus(> there was no pow(M' to repeal thi^ Act w liicli previously existed. We are not asked that (juestion. Mr. Maclakkn — I helieve that it is douhtful whetln^i' the Act may not have heen repealed l)y the Dominion in the general repealing clause in connection with the Revised Statutes. Mr. Blake — It has heen. Lord Watson- Then that accounts for it. Mr. ]3lakk — I can show vour Lordshij) the repealing clause in the lievised Statutes of CauMda. Lord Watson — Head the clause, Mr. J31ake. Mr. Blake — There is a general provision which is that IMAGE EVALUATION TEST TARGET (MT-3) // i I.I 1.0 1^ "^ I 1^ 1^ |2.2 ? -^ IIIIIM 1.8 6" L25 iu mil 1.6 m^ m v^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 €1 ^ N^ \^^ :\ v \ ^cessary to say you nnist find within sub-section 8 all the pov^ers. Any matter coming within the class, that is what you connnunicate to them. There are, I venture to say, five-sixths of the powers given to municipal institutions that are nmch better described in sub-section 15 than sub-section 8. Lord Herschell — I certainly do not see any reason for putting a narrow construction on "matters of a loctd nature." It must be something the efiect of which is confined to the Province, l)ut if the effect of it is confined to the Province, and if it is not one of the tilings s})e.*ifically mentioned in section 91, 1 do not see why the Provincial Legislature should not deal with it. Lord Watson — Then you come round to the last clause 1(5 " all matters of a merely local or })rivate nature." I do not think they are necessarily implied in the words " Municipal Institutions," but having created a Municipal Institution, whatever its character, it is entirely within the power of the Provincial Legislature to clothe it with such powers and authorities as are within themselves. They can delegate their powers. Lord Hehschell — I do not (juite see why you " shy " at that clause 1(5. It seems to me it is better for you than 8. If the thing is one of the things specifically mentioned in section 91 then you are thrown. , ' Mr. Maclaken — We are out in any event. ^ ' ' ^.i Liijiinr Pfohiiiitioii Apju'iiJ, 1805. 95 Lord Hehschkll — If it is not one of tlip tliin«Ts specifically niontioiicd in section 1)1 and it is iociil in its character and natsn-e and does not go heyond the locality, why should it not i»e within 1(5 ? Mr. Maclaren — When your rjordship suggested 1(> I confess I thought your Lordshi)) was leading me on to the consideration of that clause as in Hitssrll v. YV/c (Jiirrii, and T was in fear of heing landed in a dilennna there. Ijord Hkhschell — The (piestion arose in nussill v. The (Jiorn from exactly the opposite [)oint of view. In lliifisrll v. Tin- Qinrn it was sought to (>xclude it from the purview of the Dominion hy saying it is a thing of a local nature. The answer to that was, if you give that construction to a thing of a local nature by way of excluding the J)()minion action vou would exclude them from evervthing which dealt with the Dominion as a whole, because it nuist deal also with the parts. That was the argument rejected in llitssrll v. Thf (Jiurit, but lliissill V. 'llir (Jmrii certainly did not say that you might not legislate in the Province for a thing which afllected only the Province provided it was not one of the things specifically mentioned in section t)l. Mr. Maclaren — I was about to consider that. Lord Davey — Subject to any legislation in the Dominion ? Lord Herschell — Subject to any legislation for the whole of the Dominion that is not made one of the specific clauses. The sju'ciiic clauses exclude it, but when you are dealing with anything of a local nature ev.^ry thing in the Province and all legislation within the Province might b. said to be of a local nature, but when you are dealing with a general term like that it is obvious that that must be over- ridden by any s[)ecific legislation by the Dominion Parliament for the Dominion as a whole. Mr. Maclaren — No doubt. Lord Heuschell — If you cannot bring it within any of the sub-sections 1 to 15 of section 9*2 and have to r«dy on sub-section 1(5 it must always be subject to being overridden by the action of the Dominion Parliament for Canada as a ''m OC) Liqmr Prohibition Apiical, 189/5. whole, hilt snhject to that I do not quite see why there should not he Provincial Legislation. Mr. Maclamen — I wish to claim the henefit of 1(5, hut I thought it hotter to consider it in conjunction with Ilussi-ll v. T//y' (Jiiirii, and in considering the Caiuida Temperance Act which was under consideration in Jtiism'll v. Tlir Qwcn and the present Act, the distinction is one that has heen drawn hy this Board in a numher of cases. Though the word "exclu- sive" is used it has heen laid down that that word "exclusive" does not really exclude one or the other hody from something which may have heen unoccui)ied, that if there were legisla- tion on the part of the hody whose legislation would override that, that would preclude the legislation on hehalf of the other hody. The Lord Chancellor — I think you are quite justified in saying that more than one judgment jioints to that distinction. I have great difficulty in following it. Because its powers were distrihuted some to one and some to the other, it does not appear to me that the fact of one not having exercised it is any argument to shew that the distrihution has not taken place. Lord Watson — I think you must admit that is due to two considerations. I do not think that this Board have ever held that to he the law except where these two things occur ; in the first place that the thing the power of doing which is in question could he done effectively hy the Dominion Parliament as i-.icidental to power expressly given them hy section 91, and in the second place that it falls expressly within powers given as exclusive powers to the Provincial Legislature. Mr. Maclaren — Yes. Lord WaxSon — It may he that it ought to he carried further. I do not think it has yet heen carried further. Mr. Maclaren — I was ahout to argue that the length to which it has heen carried is all the length to which I require to go. Lord Watson — The last case we had was one where clearly the matter at issue was a matter of civil rights and it Liquor Vvohihitiou Appral, 18U5. 07 was held that tho IpCTislation was j^ond. thonirli it would ho quitu coini)etent to the Dominion FavHanient (o set it aside and v«^j)eal it, or nMuh'r it of no (>tt"ect wliiitev(>r by introducing certain [)rovisions to the contrary in dcaUn",' with the (jnestion of bankruptcy, because there are a number of ])ow(>rs <^iv(Mi witli which it is perfectly (dear you cannot interfere without inttu'fering more or less with civil ri<,dits. How can you interfere, for instance, with copyri<,dit without affecting th(> right of the rest of the public and liieir civil interests ? How can you interfere with bills of exchange or promissory notes without interfering with the interests of others, and the civil rights and interests of persons outside the Province, and numy others in the same way ? Mr. Maclaren — I think there are two cases in which that has been specially considered and which I think T need not press ujjon your Lordships as being any extension of the principle. The first case is LTnum St. Jaaiiirs ik Montrcid v. Bclisli', to which your Lordship has ref(^rred, which is in Law Reports (Privy Council) page 81, and in the first volume of Cartwright, page (VS. That was a (juestion respecting a benevolent society which was altering its basis in proportion to its members, and it was a (piestion whether that was an interference with the Dominion right relating to bankruptcy and insolvency, and your Lordships held it was not such an interference and that it belonged to property and civil rights ami to prevent bankruptcy taking place. That was further considered in the case of the Attorney-Cxeneral of Ontario and the Attorney-General of the Dominion in the matter relating to the Assignment Act of the Province of Ontario i)i the Law Reports of last year (1R04) A])peal Cases, j)age IcSU, in which your Lordships upheld the validity of certain enactments of the Province of Ontario which it was claimed were ultni rircs on the ground of relating to l)ankru[)tcy and insolvency a matter which is assigned exclusively to the Dominion. liord Watson — We held that these enactments were warranted by sub-section 13 of section 02. Mr. Maclaren — Yes. Lord Watson — They were enactments with reference to civil rights which the Province were entru «d with, but it H SI fell ■!;• k t m Li(liior Priihihitioii .Ijijndl, 1895. was pointed out tliiit the Dominion I'arlianu'iit liiid le<,'islative })ower with reference to liankniptcy wliii-li ini},'lit occasion the minifying of tiic h'gishition. egishited Mr. Mac'Larkx — But the Dominion not having the Province had the rigiit to legishite under the authority of "Property and Civil IJights." That, 1 think, is the etiect of the Judgment. The Lord Chancellok — That is to say so long as it does not conflict with the hankrujjtcy legislation of the Dominion. Mr. Maclaren — That I think is the expression used. With regard to the case of Jliisscll v. Tlif (^inrii, I think the effect of that has heen so fully stated hy one of your Lordships that I need not go into it in detail. The difference hetween the Canada Tem})erance Act and the present Act is very marked, and although they relate to a certain extent to the same subject yet I think the rule should he adojjted which your Lordships have a nund)er of tinies laid down that it is necessary to look at the nature and character of the legislation in order to determine the authority which has the jurisdiction in the i)remises. Now the Canada Temperance Act is an Act very different from the present aiul it has nothing whatever to do with munici})al hodieh. Municipalities are not mentioned at all except as to the limits of counties and cities. Beyond the geograi)hical extent I think the numicipalities have nothing to do with it. There are no nmnicipal by-laws. Lord Morris — Where is it in the Canada Temperance Act ? Mr. Maclaren — The enacting Clause is in the Canada Temperance Act, Revised Statutes of Canada (188()) cap. 100 section 99. There are other Clauses bringing it into force. Lord Herschell — (Jan you rely nnich on that, that it has no reference to numicipalities ? Sup})osing it were adopted in Ontario, would you say that the Ontario Act we are considering remained in force ? You say it has no reference to municii)alities, but should you contend that if the Canada Temperance Act were adopted in Ontario in a Liquor Vrokihitiou Appfiil, I8t)5. 90 given district tlmt the Act w<» aw now considcrinj^; would renniin in force none the h»ss ? Mr. Maclahkn— I think it would not. It would he a matter of a local or private nature that would he superseded hy general legislation of the Dominion. Lord Heuschkli, — You would admit it was superseded in any part of Ontario where the Canada Temjjerance Act came into oi)eration ? Mr. Ma"laren — I think we should \m\v to admit that. I think, considering section 91 and Hiissrll v. 'I'ln- Qntrii, that if the Canada Temperance Act w(>re in force — I mean put in force hy act and Proclamation — that in such case the present legislation would he inoperative ; that this is a mere local matter simply regulating a matter of a local and private nature in the Province, or indeed any particular numicipality in the Province which, hy virtue of the power conferred hy section 92, the Province itself may legislate uj)on or delegate to the municipalities, until that is overridden hy Dominion legislation which comes actively into force. I think that is the position which I should require to take in connection with this legislation, that it is very nmch like the legislation to which I have referred, that was considered in the case of ]j'f^niint St. J((t limits in which it iH to he put into operation, namely, counties and cities. The Federal electors- -those who vote ni)on it — are those that are created only hy I'"ederal l(>}j;islation, though at one time, hy virtue of Federal lej^islation, they ado|tted the Provincial franchise. But that is not the case now. It is almost entirely hrought into operation hy enactments within the purview of the Dominion Parliament. Lord Watson — The prohihition in llitHsrll v. Tlir (fmrn was that no person, hy himself, his clerk, servant or a^ent, should "expose or keep for sale, or directly or indirectly, on any i)retence, or upon any device, sell or harter, or in con- sicferation of the purchase of any other pro})erty, give to any other person, any s})irituous or other intoxicating liquors, or any mixed li(iuor ca})al)le of heing used as a heverage, and part of which is spirituous or otherwise intoxicating. ' ' (Canada Temperance Act, 1878, sec. U'.).) Why is that prohd)ition not of a local nature as nmch as the prohihition of the Act we are dealing with ? It was held not to he so in tliat case. Lord Herschell — It was held not to he a local matter, that is to say, not excluded from the Dominion jurisdiction as a local matter, hecause the Dominion Parliament might deal throughout the whole of Canada with any suhject that was not specifically descrihed in the other heads of section 1)2 wherever they thought it was for the good of the country there should he such legislation, and then each Province could not say: " Oh, hut you cannot do that hecause it applies to us and is therefore a local matter." That is all that liKssrll V. Tlir (^hurii, as I understand it, decided. Mr. Maclaren — I think that is the elTect of the decision. liord Herschell — It was an attempt to prevent the Dominion Legislature dealing with a matter not within any of the headings in this section 92 hecpuse it was a local matter. That was the argument. Their Lordships said that it is not a local matter. They say : " Their Lordships cannot concur in this view " — that is that it is local. " The (leclareil object of Parliament in passing the Act is that there should be uniform legislation in all the Provinces respecting the P1p*ff ■■P" Liifttor I'niliihitiiiii Aftiwul, 1H05. 101 traffic in intoxicatiiif,' liiinois with ii view to pioiiiotc tciniHiiiiicc in tlu' Dominion. PiirliiMiicnt docs not trciit tlic promotion of t«'m|M'ranc(' as (l('sirai)ii' in one I'ro' nci; more tlian in anotlicr, hnt as (Icsiralilo evt'rywlicrc tluowKliout tlic Dominion. 'I'lic .\<'t, iih Hoon as it waH passed, hccanu' a law for tlic wliolc DomiiMon, and tlic enactments of tho first part relating to tlie maciiinery for l)rinf,'inf,' the st-cond part into force took effect rnd niij^ht he put in motion at once ami every- where within it. It .s true that the prohihitorv and penal parts of tht^ Act are only to come into force in any county or city upon the adoption of a petition to that eti'ect hy a majority of electors, hut this conditional application of these parts of the Act docs not convert the Act itself into iet,'islation in relation to a merely local matter. The ohjects and Hcope of the lef?islation are still #;eiierul, viz. : (o promote temperance hy means of a uniform law throu^diout the liominion." Tlicrcforc thev siiv von. the Provincial Ijci'isliitnrc, camiot say, " W»^ have c.xclnsive dominion, for tliis is a local nnittcr." That, I think, was all. Mr. M.\c:l.\hkn — Tliat, I think, is the e.xtent of the Jndf^nient in llnssill v. 'I'hr (Jiin'ii. So that there is another jioint that I think nii<^ht in a douhtfnl matter wei^h, and that is this — the disposition there niif^ht he to uphold the legislation, hut if the legislation were even douhtful Lord W.\TsoN — I can (piite understand the argument that there may he some matter involving local considerations which makes it lit to l)e dealt with under suh-section 1(5 — considerations which do not arise in legislation of another kind. Lord Davey — Their Lordshi})s said the case might have a douhlf* aspect. Mr. Maclahkn — They said that in speaking of llusscll v. Thr (Juccii. I think it is unnecessary to refer further to tlie case of UiiHsill v. 'I'lic (Jnn-n. 'J'luit case is explained in the case of Hodf/c v. The (Jiiceii, whicli is reported in the t)th Appeal Cases, at page 117, which your Lordships will also find in the 8rd volume of C'artwright, at page 144. Your Lordships will see there the coiiiment that th«^ir Lordshi})s made upon Hussrll v. Tlw (Jiiccii, which goes to explain it, and, as I think, very strongly in our favoui' Your Lordships will find it at page 100. " It appears to their Lordshi{)H that li'u.'si'll v. I'lir (Juien, when properly understood, is not an authority in support of the Appellants' contention, and their Lordships do not intend to vary or depart from ill lO'i Litjiior I 'roll ill! t ion Ajtfuuil, 1805. the roftHOHH expresHcd for their Jiulffinent in that cas(!. The principle which that ca.se and the case of tlie (!iti/,e:iH' Insurance Company ilhistrate is tliat Htihjects which in one aspect and for one piu'po:' fail within section !)1." Now I cliiiin the IxMicHt of that : that they are (liscuHsiiig liiissi'll V. Till' (Jiitrn, aiul that th»'v Hay in words that the Huhjcct-inatter of Unssrll v. 'I'lic (Jiinn is oii(> which in one as|)et't inijiiht fall under .Dominion authority and in the otiier aspect nuiy fall under l*rovincial authority. Lord Watson — Surely under such a different aspect as to make it suhstantially different. The words are not hapi)ily selected, and I do not (juite understand wiiat was meant. Mr. Maclahen — So that Iliissfll v. 77//' (Jun'ii, asexphiined hy lloihjix. Tlir (Jiitrn, would, I think, go to sustain our con- tention here. In fact, they say that the suhject-matter of Bussrll V. 77i/' (Jmrn was just such a one as that of the Citizens' Insurance Company, in which there are different aspects, and that there might he on the same suhject valid Dominion legislation and valid Provincial legislation. Lord Morris — Which is to prevail ? Lord Watson — If to the same effect it does not matter. The Lord Chancellor — As a hroad pro))osition that would not he adojjted. You might have, for instance, what was put in //(^///c'.s case. You might have the regulation of hours within which shops in a particular place might he open for the sale of li(pior. hut if it was effected to enact that no liquor should he sold, in that case other considerations would apply. What I mean is, the mere proposition that you might have regulations in a Province, where it is not two suhject- matters hut one suhject-mntter which may he within the province of one legislation and within the province of the other Lord Herschell — Supposing that the Dominion Par- liament had not passed any legislation on the suhject at all, would there have heen anything to prevent the Legislature of any one of those Provinces (supposing it not to come within " trade and connnerce ") from regulating as it pleased the sale of drink within those horders ? Liquor I'loliihitioii Ajijutil, iHJJf). 10:1 Tiord D.WKY -Ti(>t ns take tli«' Hule of poisons or (lynjunitc, or the sale of tircaniis. Mr. Maclaiikn — As 11 iimtter of fact the I'mviiK-cs Inivc le<^islate(l on tliesc? vorv siil»j'' •♦ ; poison is dealt with hy all the Trovinees in the I'harniae) 'ts, tlie sale of poisons and the licensin<» of I'hannaeists and the like. I snhniit that we are in this position here, v luv assed. If these local rej^nlations are oidy to he operative where the Canada Temperance Act or any other (>^''l•ridin<^ lej^'isiation is not in force, then we are in the position of there hein;^ no J)ominion le^dslation on the snhj»>ct. Lord Hkuschell — If it is one not specifically mentioned in section 1)1, then you cannot hrinj^ it in under any general provision of U'2. Mr. Maclaren — Then of course the j^'round is entirely taken from us if it is tak(Mi from the enumerated snhjects. If to tli(^ J)()minion is ^'iven the exclusive ref,'ulation of trach' and connnerce, anything that comes within that meaning would he taken out of the power of the Provinces. The Lord C'hanckjj.oh — I agree. Lord Davkv— Trad<' and connnerce has heen construed hy this l)oard as meaning the trade regulations for regulating the traffic i)etween the Provinces. id I \ tkmt •'itiii '^ Lord Herscuell — It j)Ut rather a narrow construction on trade and con iiierce. I argued the case. I was always in douht whether that regulated the trade and connnerce throughout the whole of tue Dominion. Where jjcople are dealing with one another in ditterent states and passing from one state to another they should he all living under the same commercial law. i I Lord Watson — I doubt whether there is any delinition of the word " commerce," which has ever heen laid down hy this Board since I remember sitting here. Definitions have -it I f- ■■« mmm i:| 104 Liquor Prohibition Appfal, 1895. been laid down for the purpose of particular occasions but they are not for universal api)lication. Lord Herschell — You may give a very broad construc- tion to " trade and connnerce," and yet it may be that it would still leave open a very large power of dealing in such a way as to incidentally affect trade without its being a part of the regulations made within such meaning. Mr. Maclaren — My Jjords, the other case to which I wish to refer is an Order or Judgment on the " Liquor Licensing Act of 1883." That is not reported in the regular reports, but your Lordshii)s will find the Order in Council in the 4th volume of Cartwright, at page 842. As your Lordshi])s are aware that arose upon the " ])ominion Act ; " the " Licpior Licensing Act of 1883," and the " Amending Act of 1884," being referred first to the Supreme Court and afterwards brought before your Lordships here. Questions were asked whether the Dominion Act of 1883 and the Act of 1884 were valid in whole or in part. The Supreme Court of Canada to which the questions were first referred by the Governor-General answered the questions that they considered the Acts were ultra rhrs as far as the licenses were concerned except as regards wholesale and vessel licenses, and there were some amendments to the Canada Temperance Act. That was brought before your Lordships, and the Order in Council is found in the foot-note at page 342 of Cartwright's Reports, Vol. 4. The effect of that answer was this. I may just read as it is very short. It says : — " The Lords of the Committee have taken the said Humble Petition into consideration and having heard Counsel thereupon for the Dominion of Canada, and likewise for the Lieutenant-Governors of the respective Provinces of Ontario, Quebec, NoAa Scotia and New Brunswick, and having been attended by the Agents for the Province of British Columbia, their Lordships do this day agree humbly to report to your Majesty as their opinion in reply to the two questions which have been referred to them by your Majesty, that the ' Liquor License Act, 1HH.4, and the Act of 1HH4 ' amending the same, are not within the legislative authority of the Parliament of Canada. 'J'he provisions relating to adulteration if separated in their operation from the rest of the Acts would be within the authority of the Parliament, hut as in their Lordships opinion they cannot be so separated, their Lordships are not prepared to report to your Majesty that any part of these Acts is within such authority." ■■ Liquor Pruhibition Appeal, 1805. 106 Now those, of course, were licensing Acts, but I would wish to call your Ijordships' attention to the fact that the })rovisi()ns in those Acts are similar. Lord Herschell — It seems to be clearly involved in this that this Board held that they did not come within " the regulation of trade and commerce," because if they had come within " the n^gulation of trade and ( oiinnerce " they nnist have been iiifni riirs the Dominion Parliament. That seems to me to be the effect. Lord Davey — We have not got the reasons before us, but I think it turned ui)on the })articular provisions of the Canadian Act of 1888. The machinery of the Act was to create a licensing system through the municipal authorities and in fact to create new umnicipal authorities. Mr. Maclaren — It was not numici[)al, there were federal officers. Ijord Davey — Yes, they were ai)pointed, but in fact it was argued that they were nninicipal officers. ' ■ Mr. Maclaren — They were municipal officers. There were three commissioners in each district, who were comjjosed of the county court judge, the chairman of the police com- mission, and the warden of the county. Lord Davey— We do not know the reasons whi'di influenced their lordshi])s' mind, but I remend)er a great point was made in the case that although they were federal officers and called federal officers they were in fact municipal bodies. Mr. Maclaren — For performing municipal functions. The Lord Chancellor — The idea broadly was this — I do not know whether it was right — but the idea was that the Parliament of Canada had thought })roper to interfere with the interior regulation of their nnuiicipalities. It was not really the (piestion of licensing at all. 1 mean the argument was not directed to that at all. It was because they wanted the question of licensing to be properly administered that the Parliament had thouglit proper to appoint certain persons. I do not know the exact names of the othcers. im "'4 m I ■■■!' • tm 106 Liquor Prohibition Appall, 1805. 11 Lord Watson — They appointed a Board of Licensing Commissioners. The Lord Chancellor — In each case ; and I think it was supposed that that was interference with the internal government of each Province. Lord Watson — They constituted a court by their authority within the Province, who were to be provincial officers, and take part in the administration. Lord Herschell— If what they were to take part in was the regulation of trade and commerce you were appointing only officers to take part in that which was exclusively limited to the Dominion Legislature, and I have a difficulty in seeing how it would be iiitrK vires although they may have appointed local authorities to carry out that which was altnt riri's. Lord Davey — That was the argument of the learned counsel. The Lord Chancellor — I sat in that case I think. Mr. Maclaren- -Yes. I think as far as one can understand that was put broadly upon the ground that the Dominion could not pass a licensing Act of the nature that is there. Lord Watson — In section 8 of chap. 181 of the Kevised Statutes of Ontario (1877), I see it says : " There shall be a Board of License Cominissioners to be composed of three persons to be appointed from time to time by the Lieutenant-Governor for each city, county, union of counties or electoral district, as the Lieutenant-CJovernor may think fit ; and any two of the said Commissioners shall be a quorum, and each of them shall cease to hold office on the 81st day of December in each year, but he may l>e re-appointed ; and the said office shall be honorary and without any rennmeration." Then section 7 of the Canada Act defines licenses, hotel licenses, saloon licenses, shop licenses, vessel licenses, whole- sale licenses. Lord Herschell — It had already been held that you might legislate for the whole of Canada for its peace or for its government in the way of permitting or enabling prohibition of liquor traffic. Then arose the (piestioii whether if that was 80 you might equally legislate not for a particular Liquor Proliihition Apju'dl, 1805. 107 (!.;■• a Province but for the whole of Canada as a matter for its peace or good government. If controlhng it by Hcense is regulating trade and commerce, then that would be dealing with that as for the whole of Canada and within the exclusive jurisdiction of the Dominion, and therefore it would hardly be held to be iiltnt circs. I do not see how it was j)0ssil)le to hold this Act ultra rirm excei)t by holding that it was not regulating the trade and conmierce. Mr. Maclaren — It nuist have involved that it was not the regulation of trade and commerce. Sir Richard Couch — Here is section 4 as to the estab- lishment of provincial officers and the employment and appointment of [jrovincinl officers. , Lord Watson — They appointed license officers and they exacted license fees, and they raised money by those fees, which was to be paid to the Dominion officers, who were certainly doing work to maintain order in the Province. Lord Herschell — That was not for })roviiu'ial purposes, because they were Dominion officers appointed throughout the whole of the Dominion. Mr. Maclaren — They were appointed for the whole of the Dominion in different localities. I think I am correct in saying that there was merely a nominal fee of five dollars to cover the expenses of administration. It was claimed that the expenses of the administration was little more than the amount the fee would cover. Of course tliat decision settles the fact that licensing such as that Act of 1.SS8 was not within the competency of the Dominion Parliament. Lord Watson — It is not a decision. Mr. Maclaren — I will call your Lordship's attention to two parts of this Act of 1883 which are almost identical with the provisions which we are now seeking to maintain. Lord Watson — All that comes within the arguments on sections Ul and 02. Mr. Maclaren — At page '20 of the Joint Appendix of Statutes your Lordships will see the sections of the Act of 1883 4 w m m 4F mffm^fm 108 Liquor Prohibition Appeal, 1895. I I 1 :t! •I which were before your Lord8hii)s in the Li(]Uor Licensing Act Case. Section 45 contains a provision that "No provision in this Act contained siiall iift'ect the powers con- ferred on the Municipal Councils in the Province of Quebec, of each county, city, town, village, parish, and township by the laws in force in the said Province on the 1st day of July, 18(57, to restrict or prohibit the sale of intoxicating liquors in the limits of their respective territorial jurisdiction and the said powers and the by-laws now in force passed under the authority of the said laws are hereby preserved and confirmed." _ ; - The Lord Chancellok — Sir Montague Smith, in one of his ohservations, pointf^ out that in his view the meaning of the legishition is to give them full [)ower to grant those licenses and to give tluai exclusive jurisdiction over licenses : that is what Sir Montague Smith thouglit. Mr. Maclaren — I would call your Lordship's attention to the amending Act of 1884 which was also before you' Lordships on that reference. The shorthand notes say that these sections were dwelt upon and that the attention of your Lordships was called to them. Your Lordships will find section 45 at page 29 of the Joint Appendix. ' • Lord Watson — They were fully argued no doubt, but I have not been able to discover from any of the interruptions by the learned Judges in what direction their minds were running. Lord Davey — I think the gist of the argument for the Kespondents was contained in one sentence, page 105 of the report : — " If the legislation is in its character local, that is to say, if the scope and character of the legislation is such as to be of a local character, to take the present instance erecting a number of local { licensing boards exercising jurisdiction within a restricted locality and making by-laws for that particular locality, then you do not bring it within sectitm 91 by enacting a general Act for tb(> whole of Canada, if the character of th. '"gislation is such that it falls within any of the enumerated articles in section 92." Lord Herschell — Tiuit is a little inconsistent with liussell V. The (Jmcu because that case said it is not of a local character within the Province, the intention is to deal with the matter for the general i)urposes of temperance. Liquor Prohibition Apjicol, 1895. 101) Lorrl Davey — I think what was intended was this — thiit the maehinevv of the Act was local in its chaiacter. that is to say, it created local boards with tlie power to make local by-laws ; I think that was what was intended. Lord Watson— I can only derive one conclusion from it and it is not to my mind so full and satisfactory as I could d'sire, and that is that for some reason or other they arrive at the conclusion that the legislation in question did not deal with trade and commerce in any as])ect })resented by section *,)1. I think they nnist have come to that conclusion. The Lord Chancellor — I quite agree as to that. Subject to what the other Counsel may say as to what was meant by that. Mr. Maclaren — I would call attention to the Amending Act of 1884 as found at i)age 80 of the Joint Appendix, which the argument shows was considered by their Lordships. That section is almost identical for the Province of Quebec with the Act for the Province of Ontario which is now before your Lordships. Your Lordships will see that it is as follows : — " 12. Section irt of the said Act " (that ia the Licjuor Licensinfir Act of 1888) "is anu'iKled by adding the following tliereto as sub- section two : ' 2, In every town, village, parish, or township in the Province of Quebec the I\Iunicipal Council tliereof may, by by-law, restrict or prohibit, within tiie limits of such town, village, parish, or township, the sale of intoxicating licjuors.' " This Act, which your Lordships held to be iiltni vires the Dominion, was almost verbatim the provision which we are )iow considering. This jvrovision went with the Act, aiul your Lordships were asked to say whetlun* the whole Act was iiltro rin's and if there were any parts of it which were within the jurisdicti(^n of the Parliament of Canada and your Lordships did not save those prohibitory clauses which were in the Act of 1888 and in the Act of 1884 and which the shorthand notes show were specially brought before your Lordships. The Lord Chancellor — That I can answer for. I think the Board at that time did determine that there were j)arts of it that might have been, but that the two things were so !>-! >i V « i MM W 110 Liquor Prohibition Appeal, 181)6. ! : ;•! intertwined by the Act itself that they could not separate them. Mr. Maclaren — Your Lordships selected the question of adulteration. Lord Watson- out of the Act. -It would almost have taken all the bones The Lord Chancellor — It would have taken the machinery out and it was so bound up that you could not separate them. Mr. Maclaren — But your Lordships did select the subject of adulteration and said that would have been good if it had stood alone, and then this })rovision almost identical with the one now under consideration was in that Act and did not dejiend to any extent upon the machinery, because this sec- tion 45 which I have just read and which is found at page 30 of the joint Appendix says — " In every town, village, parish or township in the Province of Quebec the Municipal Council thereof may by by-law restrict or prohibit within the limits of such town, village, parish or township, the sale of intoxicating liquors." Mr. Blake — It was agreed by the counsel on both sides that if the Act of 1883 failed the Aut of 1884 must go too. That is not in the Act of 1883. Mr. Maclaren — There is a provision on that point in the Act of 1883. It is an amending Act but it amends section 45 which I read a moment ago and which shows that this subject was dealt with by section 45 of the amending Act. Lord Watson — We should be driven to speculate what the reasons were for that judgment. Mr. Maclaren — I was only i2ferring to a part of the Act which was in the two Acts, which was referred to specifically by counsel anC. which their Lordships did not bring within ihe reserving clause as to adulteration and the like. The Lord Chancellor — I have the words before me, but if I remember rightly I do not think their Lordships said that was the only matter, for instance the adulteration clauses might do. I am speaking with an unrefreshed memory, but I Liquor I'rolnhitiou Appeal, 1895. Ill the whole thing was so wrapped up together that they could not possihly give effect to one without the other. Mr. Maclarex — I would read it to your Lordships : " Their Lordships do this dp.y ajifree humhly to report to your Majesty as their opinion in re;;ly to the two (juestions which liave heen referred to them hy your Majesty, that the Liquor License Act 1HH,H and the Act of 1HH4 amending the same are not within the legishitive autliority of the Parliament of Canada." The first question is " is the Act good" then "if it is not good entirely is there any part that is good." In answering the second question your Lordships said : " The provisions relating to adulteration, if separated in their operations from the rest of the Acts would be within the authority of the Parliament, but as in their Lordships opinion they cannot be so separated, their Lordships are not prepared to report to your Majesty that any part of these Acts is within such authority." That is the text of the decision, so that I claim in the first place as to this decision that although we have not the grounds upon which it went it nnist have decided these three things, first that that Act was not a regulation of trade and commerce, secondly that the Dominion could not pass a licensing Act, and thirdly in a suhsidiary way that these prohihitory clauses regarding the municipalities were invalid. The Lord Chancellor— I do not quite follow you there. Take this position, supposing that it was " trade and com- merce," hut sui)po!-;ing it involved something else, an undue and improper interference with the provincial privileges as to appointments and the regulation of their own internal affairs. It would not necessarily be within the competence of the Canadian Parliament because it related to trade and conmierce. I think it is a misuse of that argument to assume that because it related to trade and commerce that therefore the things that were included within it would necessarily belong to the Dominion Parliament. Lord Watson— It might not justify a construction of the x\ct so as to justify their engrafting upon it as to the muni- cipal management of the licensing system something of the Dominion licensing system, that is to say an interference with the existing administration of the municipalities. I can quite understand that. At the present moment there is &i 'i' -11.—. — JJ R^HB !«■■■■ 11'2 Liquor Prohihitioii Approl, 1805. ! iiotliin<^ in nny of the ohsorvatioiiH to su^j^est any other ground for the jndgiiient. Lord Hkrscheu, — Tf it shews thiit hcensing, in the sense of saying that certain persons sliali sell or shall not sell under (HM'tain conditions, is not exclusively committed to the Dominion Parliament as a regain tion of trade and connnerce that is one thing. Of course if it were exclusively, they would have as part of the regulation of trade and commerce power to a])p()int persons to license in the Provinces and it is a licensing law for the whole of the Provinces. Lord Watson— My reason for taking the view that I have already expressed is the answer given by the noble and learned Lords in giving their opinion, and in singling out the Board of Connnissioners and the licensing system carried on under their supervision as the vicious part of the Statute for which there was no authority in fact. They singled that out. Lord Herschell — My difficulty at present is this : If the regulation of trade and commerce includes any regula- tions as to licensing or controlling their selling, and that is connnitted to the Dominion Parliament, it is difficult to see why any machinery which is exclusively designed for carrying out a legislation, which in its nature is connnitted to them, would make the whole Act had. Of course if it is something that is not committed to them, that is another thing. Mr. Maclaren — But if it were a proper subject of legislation Lord Herschell — The United States appoint their judges who sit in the diflerent States, although the States have their own judicature. The United States judge is the creation, I should say, of the United States and not of the particular State, that is to say, he is appointed for a particular district, and he there sits and administers justice. That is not at all interfering with the judii.u are of the State — it is carrying out a system of judicature that is left to the Confederate Government. The Lord Chancellor — The Act of 1807 is the one we Liquor Vrohihitlan Appeal, 1895. 113 ■■ are construing. I am not aware under what Statute tlie United States appoint their judges. Lord Herscheli, — What I mean is this : If the regula- tion of trade and commerce has so wide a scope as to cover all provisions for licensing or controlling the wnv in which people shall carry on their trade, then I do not see how it can he idlni riirs to create the machinery for carrying out that which is left to tlie Dominion Legislature. It all depends upon the construction to he put upon " trade and commerce." I do not know what was in the mind of the learned judges who took part in that case, hut to my miiul there is essentially involved in it, as at })resent advised, a decision as to that regulation — as to the meaning of trade and commerce in the Canada Act. The Lord Cha>'cellor — Supposing some Provincial Legislature said — anyone who sell poisons shall have them in hlue bottles on a particular shelf. Mr. Maclaren — I think the Provinces have so enacted. The Lord Chancellor — In one sense that would he trade and commerce. Mr. Maclaren — It would be in a sense. Lord Watson — In another sense it would be for the protection of the lives of the inhabitants. Lord Kerschell — Then there comes in exactly the question — if there is a trade which many people think analogous to the sale of poisons and the object is the public health, whether that cannot be dealt with locally as a local matter without it coming within the trade and connnerce clause, subject, of course, to the power which the Dominion Parliament has to deal with the thing as a whole. Lord Davey — Section 91 is — "It shall be lawful for the Queen by and with the advice of the Senate and House of Commons, to make laws." You must read " the regulation of trade and commerce," and all these subjects as being subject to an exclusive jurisdiction in certain matters of the trade of the Provinces. It is trade and connnerce so far as it does I ;:lf J iSi 114 Liquor Prohihitiini Appi'dl, 1805. not trench upon tlio exclusive juristliction of the Provincial Legishiture. •. ».„: • Lord HpntscHELL — I think it is very important, hecause it seems to me to intimate that nnh>ss it is hrouj^ht within the suhjects enumerated, if its operation is local it may he dealt with as a local mattei', hut if it is not, you must hrinf^ it within the earlier part of \)l in order to exclude it. Mr. M.iCLAHEN — You nuist hring it within the enumerated clauses. Lord Davey — You cannot pass a hankruptcy law for that Province and say that was within the jurisdiction of the Provincial Legislature. Mr. Maclahen — Because that is over-ridden hy hank- ruptcy and insolvency heing assigned to the Dominion as one of the enumerated suhjects. The Lord Chancellor — Just in the same way as trade and commerce are assigned. Lord Herschell — Your earlier point as regards the extension of the meaning of municipal institutions I think is a difficult one. To my niiiul I am not sure that it has not a hearing on this j)art of the case. The fact that at the time of this Act of 1H()7, legislation was in force in these Provinces regulating, for the good order and sohriety of the connnunity, the licpior traffic and the local traffic — 1 think there is a good deal to he said for that heing rc^garded as one of the suhjects of a local nature. Lord Watson — I am rather wearying for the time when the learned Counsel will address himself to section 91, hecause there are the words "trade and commerce." I do not know whether it can he suggested that they are not local matters in each Province. We shall he })rol)ahly enlightened in the course of the argument, hut I do not know of any trade or commerce that is not in some sense local. Mr. Maclaren — These words have heen considered — the regulation of trade and connnerce — in the case of the Citizens' Insiinimr Conipunii v. Panons, which is reported in the 7th Appeal Cases at page 96, and also found in the 1st Li(fiiiir I'mliiliiliiiii .Ijipral, LSI);"). lir, ic'guliition of vohiiiK^ of CiirLwri^'ht, \nv^i' '2(i5, 1 take the lilurty of reii(liii<^ two short piir!i^rii|)lis in tlu^ Citiwns' Insiinitifr Com- jxiiiji V. I'lirsdiis, iit piif^M' 112 of tlif former. Your lior(lslii|)s were considering the meaning of the words, trade and conniierce." "Till' words ' rc^Miliition of tnidc and cdiiiiiktpc ' in tlicir unlimited stMisc are .sutlicionliy wide, if uncontrolled l»y the context and other parts of the Act, to include every rej,'ulation of trade — ranj,'inf,' from political arran^'ementM in n'^'ard to trade with foreij,'n (rovornnients, re(juirin^' the sanction of Parliament, down to minute rules for ref,'ulatin{i; particular trades. 15ut a consideration of the Act shows that the words were not used in this unlimited sense. In the first place, the collocation of No. 2 with classes of suhjects of national and f,'eneral concern affords an indication that rejifulations relatinj,' to fjeneral trade and commerce were in the mind of the Lej,'islature when conferriiif,' this power on the Dominion Parlianu-nt. If the words had been intended to have the full scope of which in theii' literal meaning; they are susceptible, the specific mention of several of the other classes of suhjects enumerated in section i)l would have been uniu'cessary : as, 15, banking' ; 17, weights and nu'asures ; IH, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insol- vency." Lord Watson — Do you lay any stress upon these words, '• general trade and comnun-ce," as heing an ohservation in your favour ? It seems to me to he lui ohservation the other way. , . ; ;._, Mr. M.\cLAREN — Your liordships were then construing a local act. I suhmit with deference this is the chief case. Lord Herschell— They allowed to the Provincial Legislature a very considerahle i)ower of dealing with trade within its own limits — ^within its own horders. The Lord Chancellor — That is a case in which you have got the Judgments — the r(>asons there are given. Mr. Maclaren — Y'^es ; I am reading from the reasons given by their Lonlships. Lord Herschell — We contended that the legislation of the Provinces was iiUni iv'/r.s. They were regulations with regard to an insurance company. We contended that they were regulations of trade and commerce. Undoubtedly it is a very strong decision that everything that regulates trade is not excluded from the Province.* I 2 IIC) JJilimr I'roliihititin Apjwul, 1H*,)5. Mr. Maclahen — With your will read a few words further. LordHhips' perinisHion, I Lord Watson — That case was a decision upon two flections, u|)on trade and connnerce, and it is a decision uj)on section i)'2. It was held that really and truly in that case the Province had dealt with what it was competent to deal with — namely, something made hy the Company within the Province, and that that was a matter of civil ri^dit. Mr. Maclaren — It says, L. R. 7th Ap Cases at p. 112 : " ' Regulation of trade anrday, I should desire to refer your Lordshi}>s to a few sentences that are found in the case of The Ihinh of Toronto v. Laiiihr, which is reported in 12th Appeal ("jises at page 57-5, and in the 4th volume of C'artwright at page 7. This was a case involving the (piestion of the right of the Province to tax ]')anks. It was resisted hy the Banks on the ground that it was a regula- tion of trade and c(^mmerce : smd in thatcase tin ir ljor(lshi|)s considered this suh-section 2 of k ."tion Ul, which 1 am now ^1 ^ ffl V, 1 120 Jjqiior J 'i all i hit lull Jppi'i'l, 1895. discussing, I would read that part of the judgment com- mencing near the foot of page 585 of the 12th Appeal cases : " It has been earnestly contended that the taxation of Banks would unduly cut down the powers of the Parliament in relation to matters falling within Class 2, vii^. : The regulation of trade and commerce; and within Class 15, viz. : ]5anking and the incorporation of Banks. Their Lordships think this contention gives far too wide an oxtent to the classes in question. They carniot see how the power of making J^anks contribute to the public objects of the Provinces where they carry on business can interfere at all with the power of making laws on the subject of banking, or with the power of incorporating Banks. The words ' regulation of trade and conniierce ' are indeed very wide ; and in Severn'r case it was the view of the Supreme Court that they operated to invalidate the license duty which was there in question, but since that case was decided the question has been more completely sifted before the Committee in farmms' case, and it was found absolutely necessary that the literal meaning of the words should be restricted in order to afford scope for powers which are given exclusively to the Provincial Legislatures it was there thrown out that the power of regulation given to the Parliament meant some general or inter-provincial regulations." V Lord Watson — Do you regulate a man when you tax m ? Is it regulating a man to tax him ? Mr. Maclaben — Taxation was held not to he regulation of trade and commerce. Lord Herschell — May it not be necessary to regard it from this point of view to find what is within regulation of trade and commerce, what is the object and scope of the legislation ? Is it some public object which incidentally involves some fetter on trade or conmierce, or is it the dealing with trade and commerce for the purpose of regulating it ? May it not be that in the former case, it is not a regulation of trade and commerce, while in the latter it is, though in each case trade and commerce in a sense may be aft'ected. The Lord Chancellor — And I should think the lines may sometimes approach so near each other that it nnist be a question of degree. Take this very case you are now referring to ; I can quite understand that a tax upon banks might be very i)roper, but supposing the tax was imposed to that degree that practically it extinguished the banks in the ^ iiijujmjjiip. Liquor Prohibition Appt'^il, 1805. 121 Province. That woiikl be rather beyond the line would it not? Mr. Maclaren — The tax was a heavy one in this case. The Lord Chancellor — I am not talking about that case, but about the ininciple. You might have what was in form a mere regulation, so extreme as really to interfere with trade and commerce generally. Then I suppose it would be beyond the line. Lord Watson — It would be difficult to imply from chese words " The Regulation of Trade aiul ('onnnerce " whili-t the power of direct taxation is given to the Province — the clauses must be read reasonably together — it would be difficult to suppose that regulating connnerce meant the passing of an Act by the Dominion Legislature exempting banks from Provincial taxation, for practically that is what the argunumt in that case had to come to; that undor the words "Regu- lating Commerce " was implied a power of exempting a bank from Provincial taxation or the liability to be taxed by the Provincial Parliament. The Lord Chancellor — Curiously enough I see this passage at page 586 of the same case : " Then it is suggested that the Legiskitarc may lay on taxes so heavy as to crush a bank out of existence and so to nullify the power of Parliament to erect banks. Jiut their Lordships cannot conceive that when the Imperial Parliament conferred wide powers of local self Government on great countries such as Quebec it intended to limit them on the speculation that they would be used in an injurious manner." I suppose that implies that if they did, it would be beyond rs ' Mr. Maclaren — The latter part of the paragraph seems to imply that once they have the power, they can use it to the full extent. The Lord Chancellor — I do not know. I should think that the meaning of it was this, that the Court will not presume they will do anything so outrageous. Mr. Maclaren — If your Lordshi}) will allow me, I will read the latter part of the i)aragrapii which throws, I think, ■M I'll It! Ihl ' ,: -^f- -.^ -.■^j::\iL^-s-^L:.'j.^.^ 122 Liiltiur I'rokihitioii Appeal, 1805. some light on the view of their Lordships. It savs at p. 58(i : " People who aie trusted -yi-ith the great power of making laws for property and Oivil rights may well be trusted to levy taxes. There are obvious reasons for confining their power to direct taxes and licenses because the power of indirect taxation would be felt all over the Dominion, but whatever power falls within the legitimate meaning of classes 2 and 9 is, in their Lordships' judgment, what the Imperial Parliament intended to give." Lord Watson — That is saying in other words that you must not assmne that a power that is conferred is not meant to he given hecause it is capal)le of heing ahused. ,. ,, Mr. Maclauen — Or heing used unwisely. And to })lace a limit on it hecause the power may he used unwisely as all l)owers may, would he an error and would lead to difficulties in the construction of the Federation Act. The only other words I think it necessary to read are those following the concluding part of the preceding paragraph on })age 586 in which they say : " No further attempt to define the subject need now be made, because their Lordships are clear that if they were to hold that this power of regulation prohibited any Provincial Taxation on the persons or things regulated so far from restricting the expressions, as was found necessary in Parson's case, that would be straining them to their widest conceivable extent." Lord Watson — If any construction of that sort had heen adopted it would go a long way. You could not tax a patent. You could not raise a tax upon a copyright or on a jiatent. That would he a difficult (piestion perhaps ; it is " Banks and the Incorporation of Banks." The LoRi> Chancellor — With reference to what I was saying it ai)pears to me what their Lordships meant in that judgment was that however extravagant it was it would he valid, and then that would he a reason for the Imperial Parliament to rei)eal it, hut they go on to say that they are not to assume they would do such a thing. Mr. Maclaren — They say, as they say in some other cases, that large powers of self-government are given and that the remedy is with the i)eople. If the Parliament al)uses its power they have responsihle government, and it is left to Lniuor I'roliihitioii Apjiidl, iHUo. 128 the people ; Honie snch exiu-essious are used in some of the cases on that ])arti('iilar })oint. The eases, I think, show that so far as this Board has dealt with the snhjeet, tliose three decisions es})ecially would ^'o to sliow that hy the words "the regulation of trade and connnerce " are meant <^eiuM-al regulation. Lord Watson — It goes this length at all events, tiiat they do not trench on the power hroadly given to the Province of raising money hy Provincial taxation. Mr. Maclaren — That is the last case. Lord Hekschell — And they go further in llutliir's case, although of course the trade or connnerce of dealing in li(|Uor was affected hy the Act ; no one would have dou])ted it affected it; it limited the mode in which it was to he carried on, and yet they say that it was within the power of the Local Legisla- ture and was not a matter taken out of their power hy section 91, sub-section 2. The Ijord Chancellor — That was the (]uestion as to the billiard table. Mr. Maclaren — It involved the question of the power of making regulations by th(> License ("onnnissioners to regulate taverns and limit their numbers. The Lord Chancellor — The actual thing decided was that it was within their power to make a regulation for the period during which a billiard room might be open and inflict a penalty if it was disobeyed. Mr. Maclaren — Attached to a tavern. The Lord Chancellor — It may be ; but still the particular regulation was as to a billiard room. Mr. Maclaren — Yes, and the regulation was directing that the billiard room should be closed when the statute required the tavern to be closed. Lord Herschell — Here 3'ou cannot play I'illiards in a licensed house if I remember rig' :ly within the prohibited hours. 1 i 124 , Liiinor I'rohibitioii JppcttI, 1895. Mr. Maclaren — That was the precise regulation. ■• • Lord Heuschell — That is the law here. ■ ' The Lord Chancellor — I have got the conviction here, 9 Appeal Cases 117 : — " Did unlawfully permit a billiard table to be used and a game of billiards to be played thereon in his tavern in the conviction named and described as the St. James Hotel, situate within the city of Toronto during the time prohibited by the ' Liquor License Act.' (Revised Statutes of Ontario cap. IHl.) " Lord Herschell — Have you got die statute in question in Htnhys case, cap. 181 ? Mr. Maclaren — It is cap. 194 in the present Revised Statutes. That was the Revised Statutes of 1887. Lord Herschell — The reason I mentioned that was that one does not quite see what relation that has to the sale of liquor. It is true the offence can only be committed by a person who has a tavern. That is the only point of con- nection, that the hours were the same. Mr. Maclaren — There was this that your Lordship will see from the report of the case a little further on, that though there was the conviction yet the Courts of Canada and this Board considered the whole scope of sections 4 and 5 of the Act which gave very large powers to the Commissioners amongst which was the power to limit the number of tavern licenses which might be issued in a city or nmnicipality. It was sections 4 and 5 of cap. 194 that were in question in Hodges case. The Lord Chancellor — I daresay you are quite right, but it is obvious to remark if it was so it was entirely obiter. Lord Herschell — There is nothing about billiards in terms. ^ The Lord Chancellor — ' " For that he the Appellant did on the 7th day of May 1881, unlawfully permit and suffer a billiard table to be used and a game of billiards to be played thereon in his tavern in the conviction named and described as the St. James Hotel." - y,: Sir Richard Couch — Contrary to the regulation. . •• ■■ • i m Liilitor l*rohibitioii Appt'dl, 1895. 125 Mr. Maclaren — It came about in this way : The statute said that all taverns should he closed at 7 on Saturday and not opened till 5 o'clock on Monday niorniag. The License Commissioners made a regulation saying that billiard tables should not be used in connection with a tavern during the hours in which liquors were prohibited from being sold. Then came the question under sections 4 and 5 of the Act as to the validity of these regulations. The conviction was with reference to a billiard table but it involved the (juestion of the sale of liquor, because the billiard tables were required not to be used during the prohibited hours. Lord Herschell — It was an Act respecting the sale of spirituous liquors. The idea was that if you opened the house for billiards it would open the house for the sale of liquors. Mr. Maclaren — Yes. ' Lord Watson — It simply appeared in the form of a condition attached to the license. The Lord Chancellor — It is what we should call an act done against the tenor of the license. Lord Herschell — It was a fetter imposed on the manner in which a man carried on his business as a licensed victualler. Mr. Maclaren — Quite so. Lord Morris — Do you draw any limit at all as to the power of the Provincial Legislature to legislate on the liquor question, and do you say they could pass an Act in Ontario like the Maine Liquor Act to prevent the sale of spirituous liquors ? Mr. Maclaren — That is the next question that is raised and comes under question 1 and is one of the following questions, and I was, with your Lordships permission, al)out to address myself to that point. That is all that I wish to say to your Lordships regarding the question which I was discussing, and the discussion of that question has really involved the points that are in the other questions so that m 126 J.iijitor I'roliihitioii Appt'dl, 1805. I I think I shall tiiul it necessary to say but little on the preceding six questions as it is largely one subject. Lord Watson — It goes to the root of them all. Lord Hehscheli, — Except that there may be different considerations with reference to tjuestion 4, whether the Provincial Legislature has power to i)rohibit the importation of li(pior. In some of the maritime j)rovinces that would affect Customs duties that go to the Dominion. •• " Mr. Maclaren — In all of them it would. It would affect the Dominion Revenue ; both as to Customs and Excise — as to Customs if they imported li(pior, and as to the Excise with reference to liquor manufactured in the Dominion Lord Davey — -That looks nnich more like the regulation of trade and commerce. Lord Herschell — That cannot be treated as a merely local matter, because inasnnich as it directly affects the revenue of the Dominion it cannot be a local matter to the Province. Mr. Maclaren — I was going to reh on the case of IliiHsi-U v. 77//' (Jiiccn as an authority on this, in answer to the question just put. that if the local Legislature has the power, it has the })ower, no matter what effect it may have on the revenue of the Dominion. Lord Herschell— From a certain point of view that might be so, but the difficulty is this : Can you treat the importation and the coiulitions of imi)ortation in a Province as merely a local matter ? Mr. ^Maclaren— That is another matter. I am ad- dressing myself to the Revenue. Lord Herschell — I am supposing now that you bring it within your "Municipal Institutions" clause; but still more, if you bring it within sub- section 16 as a merely local matter, there is a difficulty about importation. • Mr. Maclaren — Quite so. y ' Lord Davey — All the Judges were agreed about Ques- tions 3 and 4. • . . .'=•,,. 'r Liijiior rmliihitioii Ajijicdl, 1895. 127 Mr. Maclaren — Yes ; answering those in the negativt the Judges were nnaninions ni Lord Hkrschell — I am not sure ther(> may not be a possible distinction between mannfaetnre and importation. It is difficult to say that importation is a local matter, l>ut manufacture in the Province may be said to be a local matter. Take the case of a dangerous mainifacture : supposing the Province said, *' We will not have dynamite made in our Province because it is dangerous to the neighbourhood." The Lord Chancellor — Supposing that was the only source of supply in the Dominion, which was necessary for mining puri)oses elsewhere ? I should think that was a serious (piestion. Mr. Maclaren — That might broaden it and take it out of the local nature. '• Has a Provincial Legislature juris- " diction to prohibit the sale within the Province^ of s])irituous, " fermented or other intoxicating liquors '? " That is really the question which we have been discussing under Question 7, with this exception, that that would seem to imply the putting down of wholesale licenses in the Province of Ontario, as well as shoj) and tavern licenses. Lord ^foRRis — Wliy not ? If they have the power under the regulation of ^natters local, to prohibit in part, why should not they have power to prohibit altogether ? Mr. Maclaren - I was about to observe that I think the decision of this Board in the Licpior License Act case of 1883 is an authority for the proposition that there is substantially no distinction between what are known as retail licenses^- that is, shop and tavern licenses — and wholesale licenses. Lord Davey — That is an artificial distinction. Mr. MACLAREN—It is an artificial distinction, and what is called wholesale there, is in reality retail. Lord Watson — Those cases involved quite a different sort of question. It is not now disputed, and I do not think any of the Judges in the minority in this ease would have disputed, that a license in this matter is local. < )4 i 1 'i Wi i i"|- I'l i... ff '■ ffi;;| mm 128 Lifjiior Prohibition Appcnl, IHU/). Lord Heuhchell — All the argument you have addressed to UH applies to Question 1. . ■• > .' . .• : . ■ Mr. Maclauen — Yes; and the second question: "Or " has the Lej^'islature such jurisdiction re<,'arding such })or- " tions of the Province as to which the Canada Temperance " Act is not in ojjeration ? " Lord Herschell — That is nuunifiicture of sucli " li(|UorH within the Provinc<\" Ichiini that tlie manufacture is a local matter and of a private nature, and ojh' on which the Province has power to regulate. Lord Watson — That may or may not be. Mr. Maclaren — To the question as framed here, I say we are entitled to an affirmative answer on the j^round that the Provincial legislature has jurisdiction to ))rohil)it the manufacture of li(]Uors within the Province on the ground of its being a matter of a })rivate and local nature. This is manufacture, and the Province has the right over manufactures, especially those that might he considered injurious. The Lord Chancellor — You must go to the extent of saying, to prohibit the manufacture altogether. Mr. Maclaren — It involves it if they have the power to prohibit their being manufactured in a city or within a certain limit of a city. Lord Watson — Supposing the manufacture was for the Canadian service, would that be a local matter ? Mr. Maclaren — I do not know that I am prei)ared to answer that question. Lord Watson — Supi)08ing a manufacturer sui)plied all his produce to the Canadian Government for the Navy or for other purposes ? Mr. Maclaren — I do not know that the fact of the personality of the customer would really affect the power if they have the power to prohibit. Lord Herschell — Supposing there was a Government manufactory of Cordite in a particular Province, could the Provincial legislature prohibit it as a merely local matter '? Mr. Maclaren — I think this question does not con- template Government manufactories. M ■s h I SSE 180 Litiiiin- Proliiliitiiin Appttil, 1H'.)5. Lord Heuhchell — I know it docs not. Lord Wathon — The answer would einhriicc it. Mr. Maclauen — If it was answered id)soIiitely. Lord Davey — The (Jordite nuinufactnre nii},d)t he carried on, as it is partially in this country, hy means of private firniH nuiiuifacturing for the (rovernnient. The (xovennnent has its own manufactories in this country, Imt also l)uys Cordite from private manufacturers. Mr. Maclaren — I assume the Province would have a control over these manufactories as heiiig a matter of a private and local nature. ; The Lord Chancellor — The word control is and)i<^uous. By control you mean ahsolute prohihition. Lord Morris — The (piestion is " })rohil)it." •• - Sir Richard Couch — Then it is liciuor not Cordite. Mr. Maclaren- much difference. -I do not know that the material makes Ijord Watsox - It rather occurs to me that if any question as is v,c>\\ sn,!gested arose, the legislature of Canada would have full powci- to legislate under the general words witii which sec(i(»a 91 commences and which are not Hmited hy the words which follow. Any suhject may he dealt with which is necessary, wliich in the opinion of the (Tovernment is required for the })eace, order or good government of Canacla. If they could not govern Canada properly without a supply of Cordite from these works I see no reason why they should not pass a law saying these factories shall he there notwithstanding. Lord Davey — This is a speculative question. Lord Herschell — There has never heen any proposal to prohihit the manufacture. I should (piestion whether it is right that a nuinher of conundrums should he suhmitted for solution to this Board under the Act. They were intended to he questions having a practical hearing on immediately intended or actual legislation. , ' • • • Liquor I'rohihitioii Ajipfiil, iH'.ir). l:n Tjonl MouRiM — Except tlint tlicy iniiy liuvc siiniiiscd that if the Province lias hcf^uii 1)V proliiljitiiif,' the sale of licpior, it may follow it up by prohihitiiif^ the iiiaimfactim^ of li(pior. Lord Watson — Every one of tln'se (piestioiiH seem to he purely academical. Lord Hkhschkll — Tho (piestioii of dealing' with liquor has been in operation in the Province for 40 years I should chink. Mr. Maclaren — Prohibition has been in force since 1853 in the Province of Ontario. Lord Hkhschkll — Over 40 years. That is a i)ractical question, but there has never been any proposal to pr()liii)it the manufacture. Mr. Maclarkn — Not l)y actual legislation, but it is a matter of discussion as to one of the ways of dealin<^ with the liquor tratlic. Lord Hkrschell — It seems rather premature to submit a question of that sort. Mr. Maclarkn — The questions have been submitted by the Governor-General and we are brought here to answer them. Lord Davey — Have you got the 54th and 55th Victoria, chap. '25, section 4 ? Lord Herschell — I should like to see the power l)ecause it seems a questionable matter to [)nt a number of s))eculative questions and insist that this Board should answer them. Mr. Maclaren — I think the Act is very swee})ing. Lord Watson — I do not think this Board is bound to answer them. It is the duty of the Board to comply with the Statute as far as reasonal)le. The Legislature ol Canada by passing an i\.ct cannot lay a duty on this Board of that kind to answer questions. One is willing to dispose of all questions that are necessary. Lord Morris — Is not question 1 also to a certain extent speculative in that way ? You have not altogether prohibited the sale. K 2 ill w- ■h I f ; '!'< mi m t, 132 Liquor Prohihition Appeal, 1895. Lord Herschell — The sale by retail ? Lord Morris — They have not passed any Act of Parlia- ment within question 1. If question 3 is speculative it appears to me question 1 is speculative also. The Lord Chancellor — That is so. Lord Herschell — Question 1 is not quitp so speculative. It is on the lines of existing legislation. Lord Morris — I suspect they are not put speculatively. Lord Watson — I have not the least doubt that they are not put speculatively in this sense that they are with a view to the future guidance of the action of the Governor-General. Lord Morris — And with a view to something that they see coming. Mr. Maclaren — There is, no doubt, an agitation in Canada for such Itigislation. . Ijord Davey — Prohibiting the manufacture ? Mr. Maclaren — That is one of the propositions. If I may speak of Resolutions introduced into the House of Connnori.s, such Eesolutions have been introduced into the House of Commons of Canada, year after year, for prohibiting the manufacture, importation and sale of intoxicating liquors, and that is the reason no doubt for this question if I may know what reasons moved this. Lord Watson — The difference is that we can give no judicial opinion upon some of these questions A'hicii are academic. We cannot give anything like a judicial decision except upon a substantial case. Lord Herschell — I see the 4th section of the Act (54 and 55 Victoria, chap. 25, Dominion Statute) says : " Important questions of law or fact touching Provincial legisla- tion, or the appellate jurisdiction as to educational matters vested in the Governor in Council by ' The British North America Act, 1HG7,' or by any other Act or law, or touching the constitutionality of any legis- lation of the Parliament of Canada or touching any other matter Avith reference to which he sees fit to exercise this power may be referred by the Governor-iu-Council to the Supreme Court for hearing or consideration," Liquor Prohibition Appeal, 1895. 133 The Lord Chancellor — The words are rather wide. I do ncj see how yon can get out of it. Lord Watson — Except that it is heyond the power of the Canadian Legislature to lay that duty upon this JSoard. Lord Davey — They have laid it on the Supreme C'ourt. Lord Watson — They may lay it on the Su])reme Court as much as they like, hut they cannot lay it on this ]>()ard. Mr. Maclaren— The Supreme Court answered these questions and Her Majesty has given sjjecial leave to appeal to this Board. Sir Richard Couch — Special leave to ai)p(!al ha« been given ? , . , . Mr. Maclaren — Yes. Lord Watson — We need not enter into a discussion on that point. It would come to this that they have the right to remit to us. Lord Herschell — No douht it may he that the Supreme Court of Canada would he l)ound by tliis Statut(> to express its opinion on any matters submitted to it ; l)ut it may be that this Board would 'say it is a matter of so thoroughly speculative a character, and with no immediate reference to any legislation either passed or introduced into Parliament, that we decline to ex))ress any opinion upon it. The Lord Chancellor — I doubt that very nnich — It says (sub-section <5) : " The opiniori of the Court upon any such reference, although advisory only, shall, for all purposcH of appeal to Her Majesty in Council be treate'l as a final judgment of the said Court between Parties." Lord Herschell — That is a Canadian Statute. Mr. Maclaren — Sp(;cial leave has been given in this case. Lord Wathon — It reminds me of what occurred in my practice at the Scotch Bar. On two or three occasions I and two other gentlemen, members of tiie Scotch Bar, were con- sulted as to the meaning of a Statute, and we gave a very long number of replies in return for a handsome fee, an'^ we m i:i 134 Liquor Prohibition Appeal, 1895. eventually discovered that the object of consulting us was not to defend any Action, but that somebody might write a book on the subject and state in the introduction to it that it had the influence of our authority. They came afterwards on an amending Statute that was passed, but we declined to give any opinion. If somebody is going to write a Treatise m the Liquor Laws, a few more questions might be iiit) ^'lu; ' to assist their labours. Mr. Maclarp^n — With regard to question 4, notwith- standing what is said, I shall ask your Lordships to answer that in the aftirmative, as ancillary to the right to i)rohibit the sale. If the Province has the right to prohil)it the sale, and in order effectually to carry that out it becomes necessary to prohibit the manufacture and importation of the li(|uor, I submit that the right to prohibit the importation would follow the right to prohibit the sale. Lord Davey — I think you would have to deal in con- nection with questions 3 and 4 rather more closely with the regulation of trade and commerce. It seems to me, without expressing any oi)inion, to be more near a regulation of trade and commerce than the others. Mr. Maclahp:n — Yes, there is no doubt that No. 1 and even No. 7 interfere with trade and connnerce, but "'htscUer it is a regulation of trade and connnerce I think that we should need to look at such legislation, if it were passed, to ascertain its true nature and character. Lord Davey — Even undor the definition of Sir Montague Smith it regulates trade and coinmerce between the Colonies. It is a regulation of trade and commerce between t'. Provinces, or between Canada as a whole and some For> >>•'"* Countries, including England. Lord Herschell — That is importation. Lord Davey — And manufactur/. Lord Herschell — You are on No 4. Mr. Maclaren— I ask for an ailirmative answer to No. 4 as an accessory to No. 1. give Liquor Proliihitiou A{)[»'al, 1895. 136 Lord Morris — Does not No, 4 deal with more than a colony by preventmg importation ? Does not it deal with persons outside the Province ? « Mr. Maclaren — Only persons in the Province. It would only affect [)ersons in the Province im])orting into the Province. Lord Morris — Does not it affect the question of ex- porting y If there is an import there must be an ex[)ort. Jjord Davey — Importation must mean into a Province if it is into Canada, because Canada consists of the Provinces. It must be in the Piovince therefore, and if you could prohibit it on the ground that it is a local matter because it is imported at Halifax, if the ship arrives and unloads at Halifax, then you do away with the right of Canada to regulate trade and commerce. Lord Herschell-- It might be li(pior consigned via Halifax to some other Province. How can you prohibit the importation if you would prevent the people of other Provinces getting it ? How could that be said to be a merely local matter ? ' Mr. Maclaren— It might be (lualilied in the way your Lordship suggests. Then cpiestion 5, " If a Provincial Legis- " lature has not jurisdiction to jjrohibit sales of such licpiors '* irrespective of quantity, has sueh rjegisJatnrt^ jurisdiction to " jU'ohibit the sale by retail according to the definition of a " sale by retail either in statutes in force in the Province at " the time of confederation or any other definition thereof." Lord Herschell — That is covered by what has been said. Mr. Maclaren — Yes. Then question (>, " If a Provincial " Legislature has a limited jurisdiction only as regards the " prohibition of sales, has the Legislatur*- jurisdiction to ;)ro- " hil)it sales, subject to the limits provided by the several " sub-sections of the UUth section of The Canada Temperance " Act, or any of tlx^n (Revised Statutes of Canada, cap. 10(5, " section <,)'.).) " That would m(>an subject to the Canada Temperance Act and to the ground covered by that, and I should ask your Lordships to answer that in the afiirmative. 1 I -H- it m fimw I 186 Liquor Prohibition Appeal, 1895. Lord Watson — That is one of the matters we can answer. What are asked are questions submitted for our adjudication. According to my view a cou^ of law cannot adjudicate upon a St ^lon of a statute. The thing is nonsense. It is not adjuc. ' 1. They cannot adjudicate except upon a sub- stantial <.'.. Lord Davey — Look at section 99, and see what it says. Mr. Maclaren — Your Lordshii)s will find section 99 in the Joint Appendix of Statutes. It is a prohibition of the sale of liquor. It was the section under consideration in Iinssell V. The Queen, and your Lordships will find it at pages 20 and following of the Joint Appendix of Statutes. The Lord Chancellor — ■'" ' ' '^' ' ' I . " * * '• .•'' No person shall ■■'■ '■'■■ * * expose or keep for sale or directly or indirectly on any pretence or upon any device sell or barter or in consideration of the purchase of any other property, give to any other person any intoxicating liquor." Mr. Maclaren — That is section 99. Then there are the exceptions. , -'T^: •■"■^: :-,■•- r-f, /- '•■■)'■= ■: ■ -.'; ''/--■,-- Lord Herschell — I do not quite understand why this 6th question is put as distinct from the others. If it has the power, why should its power be regulated by the provisions of the Canada Temperance Act ? Mr. Maclaren — That question I think is meant to in- volve this — Assuming the Canada Temperance Act to be a Superior Act, question 2 puts the question : Has the Province the right to legislate where the Canada Temperance Act is not in force ? Lord Herschell — If they had a light to legislate because it is not in force, why must this legislation follow the lines of the Canada Temperance Act, or why can it be better because it does follow those lines '? • ., , . Mr. Maclaren — It would be on the assumption that the Canada Temperance Act having been declared to be within the competency of the Parliament of Canada, the question is i)ut here to ascertain whether they can legislate subject to it. ., . ■ ■ Liquor Prohibition Appeal, 1805. 137 Sir Richard Couch — Whether that does not put a Hiuit to their power ? Mr. Maclaren — Yes. Lord Herschell — That can only l)e brouf^ht into oi)era- tion in a particnhir way, which is by the Act of the Legisla- ture, and I do not see how the Canada Temperance Act whose provisions can be brought into operation in a certain way can guide as to what the Provini;ial Legislature can do. Lord Watson — It is putting in another form this (pies- tion to us — If a Provincial Legislature has a limited juris- diction only as regards the prohibition or sale, their Lordships of the Privy Council are asked to determine what is the limit of its limited jurisdiction ; do the limits of their jurisdiction extend to an enactment which does not go beyond the lines of the Canada Temperance Act ? Lord Herschell — What I fail to see for the moment is how that can be a test within the limit you put. Supposing they have power to limit in the direction of prohibition — if they have none there is fm end of it, and catlit tjiurstio — but if they have power to limit in the direction of prohibition how can the extent of their powers be determined by what the Dominion Parliament has done ? Mr. Maclaren — It might mean this I think : that the Dominion having, even where they have enacted prohibition to the full extent to which they have in the Canada Tem- perance Act, rendered legal certain sales named in these several provisos for sacramental pur})oses, for medicinal and mechanical purposes, having given certain rights to distillers, to vine' growing companies and to numufacturers of native wines, whethev that is the limit ? Lord Herschell — If it is within the function of a Provincial Legislature, how can they in their legislation be fettered by a view expressed by the legislation of the Dominion Parliament ; because that is what it comes to. It is not that that Act is in operation — it is not in operation. Mr, Maclaren— No. Lord Herschell- -But an Act passed for the whole of £kl4^ -I.V 138 Liquor Pivhihition Appeal, 1805. Canada, which may be adopted by the different parts of Canada, embodies the views of the Dominion ParUament we will suppose as to desirable legislation, but how can that be the test of the powers of the Provincial Legislature, assuming that it has power to legislate in that direction, which you must assume. If you are right in your first i)oint then of course you do not need that, but if you are wrong in your first point I feel a difficulty as to how you can be right to the limited extent suggested in (piestion (>. Lord Davey — Is tlie meaning this — that if any county or city in the Province of Ontario should ado[)t the Temper- ance Act, will the Temperance Act enable the excepted person to carry on the trade notwithstanding the total prohibition ? Lord Herschell — I think the (piestion is whether it is within tne jurisdiction of the Provincial Legislature. Lord Watson — It is a question svhether they can enact })rohil)ition to the same extent to which prohibition is enacted by the Temperance Act and no further — that seems to be the (juestion. But then that is of course on the assumption that you have not the power contended for. Mr. Maolaren — That there is only the limited power — not more. Lord Watson — In fact the (juestion is put entirely on the assumption that the Provincial Legislature has not power to deal Mr. Maclaren — With the whole questimi. ■ Lord Watson — With the question of sale or interfering with the sale of liquor as a local matter. Mr. Maclaren — I submit these questions to your Lord- ships. My learned friend, Mr. Haldane, who is with me will read the judgments. ... The Lord Chanceli-or — Before you finish will yoa kindly answer one question. I s^-e that in the judgment of Mr. Justice Taschereau a reference is made to tie Declaratory Act, 1891, 64 Victoria, chapter 46, and he says that disposes ■iii Liquor Pruhibition Appeal, 1895. 139 of the question of the complete })rohil)ition of the ticjuor traffic. Mr. Maclaren — Yes. Your Lordship will lind that at the foot of page 2 of the Api)elhiuts' Case. The LoKD Chan'cellor — Have we got the Act ? Mr. Maclaren — It is ju-iiited in its entirety in the Appendix to the Case of the liesi)ondents, the Distihers' and Brewers' Association. The 1st section is on i)age 2 of the Appellants' Case, and it is referred to in question 7. Your Lordship will find it co})iHd in full in paragrai)h 1 at the foot of })age 2. The Act of the Legislature of Ontario, 51 Vict., chapter 40 also referred to in the 7th question, is as follows : and that is declaratory that the restriction was not to go further than the limitation prescril)ed in the x\ct of 1800. The Lord Chancellor — That is a Declaratory Act ? Mr. Maclaren— Yes my Lord, that is declaratory. Lord Herschell— It does not touch the Canada Act ? Mr. Maclaren — It touches the Act which was in force at the time of Confederation ; and the Act of 1891, was passed to declare Lord Hkrschell — It meant this, not to go further than the former Act which was kept alive hy section 129. Mr. Maclaren — Yes, that is the effect of the Act of 1891. The Lord Chancellor — I see Mr. Justice Taschereau says thut that clears the ground, and the only question is whether — Lord Watson — Whether it is or is not the law. Of course if the first (juestion were answered against you, it appears to me that that Act would he standing hy virtue of section 129. The Lord Chancellor — I think you have sufficiently answered my question Mr. Maclaren. Mr. Maclaren — If your Lordship pleases, my learned friend, Mr. Haldane, will read the Judgment of the Court below, and further discuss the questions. m ^sil 111. , 140 Liquor I'rohihitiun Appeal, 1895. I i:. 1 Mr. Haldane — My Lords, there are two observations I should like to add to my friend's argument before I go to the Judgment. Your Lordships are always loth in construing the Confederation Act to draw an abstract line, and indeed it is almost impossible to do it, but there are some land-marks which the authorities have established, and if we find a concrete question lying near these land-marks it affords indication at all events, that it is on one side of the boundary line or the other. Now there are two things which seem to be settled by the decisions of this Board on previous occasions and on which one may lay hold in arguing this case. The first is that the words conferring the regulation of trade and commerce upon the Dominion Parliament do not include the whole or nearly the whole of the regulation of the liquor traffic. That is quite plain. There are two decisions— -the decision in the Liquor License case of 1883, and in Hodijc v. The Queen, which have made it plain that certain things at all events in connection with the liquor traffic are reserved for the Provincial Legislature. Lord Watson — I should like to know what your view is upon this question, how far does the power of the Dominion Parliament to make a rule — we will say, partially prohibiting or entirely prohibiting the sale of liquor — assuming they pass such an Act, how far would their legislative power be attributable as a regulation of the li(|Uor trade, or would it be attributable in reality and substance to their general power to make laws for the good order and government of Canada ? That is a (]uestion which may not l)e without im[)ortance to consider in the present case. Mr. Haldane — Quite so, my Lord. Lord Herschell — I think Russell v. The Queen distinctly says it is within the second proposition — the peaceable government, but in that case they avoided expressing any opinion whether it was within the other point. Mr. Haldane — Yes, they did. Lord Watson — It may be a question whether in any case the words " mere regulation " would include prohibition necessarily, but entire prohibition might be justified on the ground that it was for the well being of ■ ^ le community. ■•; Liquor I'rohihition Appeal, 1895. 141 Lord Herschell — That seems to be distinctly the judgment — that it is within tlie power to legislate for the peaceable government, but they avoid expressing any opinion as to whether it was withm the first })ropositiou. Mr. Haldane — Yes, I think that is so. It is a little difficult to see why prohibition should not come within the regulation of trade and commerce. . Lord Watson — It might, and legislation might take such a form as to be entirely within it. Lord Herschell — But may the test not be whether the object of the legislation is directed to the question of peace and order such as various police i)urposes, sanitary purposes, or whether it is directed to a trade purpose ? May it not be often the test whether it is within the one category or the other ? Mr. Haldane — You must look at the entire Statute, my Lord. Lord Watson — Incidentally you may affect trade and commerce, but as to whether it is within the regulation of trade and commerce may be doubtful. These sections are not limiting words, they are words expressly declared by the section. Mr. Haldane — I should have thought, my Lord, the right test would be to do what Lord Herschell suggests, and look at the entirety of the Statute and see wdiat its scope and purposes were. If its scope and pur[)ose were simply prohibition as a matter of peace, order and good government, then you would naturally refer it to the initial words of section 91. If it is really a matter of regulation of trade and commerce, as it might be although involving prohibition to some extent, then it may be within regulation of trade and commerce ; but you must see what the prohibition is. Lord Watson— The effect of the original first words — they have not been a great deal considered, and may some day require considerable attention — appears to me to be to override to a certain extent nearly all the clauses giving jurisdiction. If that is thought good for one, each Province ;iv; 142 Lifjiior Prohihitiou Apftt'ol, 1895. may enact for itself, because it thinks it for the benefit of the Province, The Doniinioii Parliament ai)))arently have jmwer if tliey are really justified, and I assume tlun- are acting fairly and honestly in the matter, to enact that as a general regulation. Mr. Haldane — These words " peace, order and good government " are the common form words in which the i)ower of making laws has been given to every (-olony of Great Britain. I think they have been used always, at any rate in every recent Act. Lord Herschell — It is the general law-making power. Mr. Haldane — It is the general law-making power ; therefore my Lords you nnist take the Provincial power as an exceptional i)ower. I think that must be so and that the enumeration in section 91 is only for greater certainty, as is stated. Lord Davey — The enumeration has some value besides that, l)ecause if it comes within the enumerated matters, then it is not of a local or private nature, because it is confined to the locality, so that it has something more than that value. Mr. Haldane — After all my Lords we are brought face to face with the question what does come within what is enumerated. Lord Watson — There are many things enumerated which might be in a sense local. Lord Davey — You might pass a local bankruptcy law for instance. '-::,,■•■•;/■:'-,-/■; ^■-, .■-,•,-■.; r ^..-^ ;'.■;' -':■.■■■.•:■_■.': Mr. Haldane — That could not be, that would be some- thing which would clearly come within the Dominion Law. Lord Herschell — You could hardly pass a local bankruptcy law unless all the man's creditors were within a particular state, that is to say, you could not pass a law if it were to apply to all a man's creditors, people in other provinces, in addition to which it would be hampering provincial trades. Mr. H*ldane — Your Lordships remember in the In- Liquor I'rohihitum Appval, 1805. 143 solvency Case last year there were a nniiiher of ])r()viHions which were passed hy the Province which were iijjpropriate to a general Bankruptcy Statute, and it was said on hehaU' of the Dominion that those provisions W(U-e appropriate |)rovisions to he contained in a Dominion Dankrui)tcy Act, and that it ought not to he passed hy a Provinces hut your Lordships said : It is true these are appro})riate provisions in a Bank- ru})tcy Statute, hut there are also aj)i)roi)riate j)rovisions with regard to i)roperty and civil rights, and in the ahsence of special legislation they are })ro})er things to l)e brought in in dealing with [)roperty and civil rights. So it may he here that there are things which are ipiite apiu'opriate in a gcaieral prohihition law. Lord Watson — There was another case which we decided last year in which the Dominion had legislated. The question was raised there as to whether that legislation was valid or not. Lord Davey — I thiidv it was where some particular usage had grown U]) in the lumher trade, hut I forget the name of the case. Lord Watson — There wu,s an enactment passed with regard to receipts ; it authorised a hailee who was aho owner to grant a receipt to pass goods in the market ; that wa,< tae effect of it ; and the question was whether that man was to he called an Assistant. We sustained in fhat case the validity of the Dominion Act. I think the case ,,,13 from Montreal. Mr. Haldane — Yes it was. Lord Davey — That case was an appeal, I helieve, from the Court of Appeal of Montreal. Mr. Haldane — In that state of the law my Lords it hecomes important to see exactly what has heen decided with regard to the liquor trade, and as I have said not only has the regulation of it heen decided to he * in some as})ects and for some [)urposes within the provincial competence l)ut even qualified prohihition is decided to he intrd circs of the Province. The Lord Chancellor — The consideration of the matter it seems to me is very difficult in view of the way in which the question comes hefore us. . 1! 144 fjr liouse or place " of public entertainment." That is the first branch of it, and, secondly, for i)rohibiting altogether the sale of it in sho))s and places other than houses of ])ul)lic entertainment. Tlu^n that nnist be read together with the amending Act which enables you to buy in the shop, — for example you may buy it anywhere, because it says : — " No tavoni or shop licoiiso slmll ho ncceH.sary for Ht'lling any licjuors in the origiiuil packages in which the same have been received Liquor Prohihitioii A/qx'td, 1895. 147 froia the importer or mannfaclurer, provided such packages contain respectively not less than five gallons or one dozen bottles." It comes to this — that in some localities it is desiiable that the public house, or inn, or place where the li(jUor is sold, is a place where you are not to buy leas than a dozen bottles. The scheme of the Act is local, and its purpose is to deal with something in the nature of a local regulation or restric- tion. Now in the Licjuor License Case you get the same thing upon the other side. I will not go over it again, but on pages 4, 6 and 7 of the report, you have the kind of provision which was put into that x\ct. One cannot tell of course what was the ground of their Lordships' decision, l)ut one cannot help seeing that the contest largely turned upon whether the whole Act was not in substance an attempt to get hold of what was a local or municipal matter under cover of a Dominion Statute. Lord Davey— I have read the argument again and I think it turned very largely on the machinery which was used in that enactment. Mr. Haldane — Yes, your Lordship remembers that the Act had been drawn with considerable care, and the electors, who had been chosen, were the (Sectors of the Dominion constituency, and they took localities which corresponded very nearly to the Municipal localities under thi' Ontario legisla- tion, but this Board decided Miat the mere variation of the maciiinery did not prevent the machinery from being a machinery of a nnniicipal and local character — indeed the Act was of that nature. Lord Herschell — I do not think that carries the matter really further than the decision in llothic's case, because whether it is right or wrong, Hin-- poses of general legislation as distinguished from ;j,eneral administration or local and police legislation. Then a little lower down he says : — " Therefore it appears to me that there ace in thi' Dominion and the Provinces, respectively, several and distinct powers nuthorising each, within its own sphere, to enact the same legislation on this subject of prohibitory liciuor laws restraining sale hy retail." Lord Watson — I am not sure ; it is always dangerous to lay down a proposition of that kind. I do not know that they must be general laws not limited to anv particular Province, that they must be for the benelit of the whole of the j^rovinces. Mr. Haldane — Yes. Lord Watson — It is nnich too narrow to say that. Mr, Haldane — Yes, you must look at the whole scope of the Statute. Lord Watso>; — The legislation runs very much on the lines and to the same extent as the interests given by the Act to the Provinces. Lord Herschell — But to legislate in a matter which is Hi .■ij^iJStj. 150 hiqxior Prohlhitiou Appeal, 1805. a local matter for one Province only and merely say that we thought it would be for the benefit of all Canada that Ontario should be made a very sol)er place would be to my mind legislation about which there would be a good deal of question. I think it is too narrow to say that the law must extend to every Province, but on the other hand the general idea that it must not be local legislation in a particular Province though it is by the Dominion Parliament Lord MoiiKis — I think the Chief Justice is only dealing with the local option laws. He says, at foot of page 76, the Dominion of Canada "may pass what are denominated local " option laws. But as I imderstand that decision " — that is the decision on the very question — " such Dominion laws " must be general laws." It is the local option laws, and I think he is strictly right. . Mr. Haldane — About the middle of the page his reason is given : — • "To neither of the legislatures is the subject of prohibitory liquor laws in terms assigned. Then what reason is there why v local legis- lature in execution of the police power conferred by sub-section 8 of section 92 may not, so long as it does not come in conflict with the legislation of the Dominion, adopt any appropriate means of executing that power, merely beciiuse the same means may be adopted by the Dominion Parliament under the authority of section 91 in executing a power specifically given to it ? It has been decided by the highest authority that there are no reasons against such a construction. This is indeed even a stronger case for recognising such a concurrent power than the case of Tlie Attovney-Uenvial of Ontario v. T/ie Atturnetj- Umieral of Canada." rr; hat h: the insolvency case — " because bankruptcy and insolvency laws are by section 91 expressly attributed to the exclusive jiirisdiction of the Dominion. In the event of legislation providing for prohibition enacted by the Dominion and by a Province coming into conflict, the legislation of the Province would no doubt have lo give way. This was pointed out by the Privy Council in 'I'lic AU(inii'!/-(i('n<'ral of Ontaiiow The Attoniri/- (ivHcnd of Caiuiila, and altliougli the Britisli North America Act con- tains no provision declaring tluit the legislation of the Dominion shall be supreme, as is the case in the constitution of the I'nited States, the same j)rinci])Ie is necessarily implied in our Constitutional Act, and is to be applied whenever in the nuiny cases which may arise, the Federal and I'roviucial Legislatures adopt the same means to carry into eft'ect distinct powers." • I Liquor I'roliihitioii Appeal, 1805. 151 Lord Watson — It is not (juite correct in my oi)iiiioii to call thiit couenrrent power when the concurring provincial legislation nuist give way. Lord Davey — There is a passage you left out which may he of importance on questions 3 and 4, hetweeu lines 10 and '20 :, " Bach provincial legislation cannot, liowcver, be extended so as to prohibit importation or niiinufacture, for the reason that these subjects belong exclusively to the J)oniinion under the bead of trade and connnerce, anil also for the additional reason that the revenue of the Dominion derived from Customs and Kxcise Duties would be thereby ati'ected." Lord Watson— And not only so, the Provincial Legislature can only deal with that which is really a matter of civil right. They cainiot pro})ose, for instance, to deal with hankruptcy. Lord Herscuell — 1 should like to know what you have to say ahout the question of importation, hecausethe question of importation seems to me to he very different. Do you say it is a question of a local nature ? The question of manu- facture in any Province would jiri)ii(i facie seem to he of a local nature unless it conies within trade and connnerce, hut then sujiposing it to he otherwise than of a local nature, would it he exchided Ixn-ause the -Dominion Parliament raised part of th'ur rev(>nue hy excise. Mr. Haldane — 1 think the question would l)e whether it was necessarily a thing that came within matters of a local nature. If it was something which came within matters of a local nature and could he properly dealt with in that capacity then I take it that notwithstanding there would he some interference with the Dominion revenue that would not he sufficient reason for saying the Province had not the power. Lord Heuschell — Supposing the Dominion Parliament has used it for the purjKise of taxation, can it he said that it would he sim})ly of a local nature, when it directly affects the raising of revenue under a law jiassed hy the Dominion Parliament ? That seems to me to he a very serious (piestion, hecause otherwise you see, supposing they had raised a great deal of their revemie in that way, the Provincial Legislature might for the very puri)os(^ of checknuiting, in some coutro- :\4 wx I If; >n 111: i: f |Wft^ ' v t' '. " l'aw. i 'W6J>wwwgir g''' ■ j.-gwr wi uMMW ii M ii^ ! ■ 15'2 Liquor I'roldbition Appeal, 1896, versy between the Province and the Dominion, prohibit particular manufactures. , Mr. Haldane — That would be clearly bad ; if it were a statute passed for that purpose it would be clearly bad. Lord Herschell — Supposing it has immediately that effect, can it be said to be merely of a local nature when it affects the revenue of the Dominion directly ? Mr. Haldane — Again I think you must look at the purpose and scope of the whole statute. Lord Herschell — Whatever its scoi)e and i)uri)ose, it must be merely of a local nature, that is : not touching by its immediate and direct operations those outside the province. If you do this you at once stop a source of revenue of the whole of the Dominion. Lord Morris — Do you not do very much the same thing if you stop the drinking of whisky altogether ? You stop the manufacture of it practically for nobody will be fools enougli to manufacture that which nobody can drink. Lord Davey — You reduce the excise undoubtedly if you restrict drinking li(]uor (without i)roliibition) by a licensing system. Mr. Haldane — Your Lordships had this very point before you in the Russell Case, only the other way. It was argued in the Bussell Case that if the Dominion had the power of prohibition, that was destroying the right of the Province to the revenue from licpior licenses which uiidou})tedly it had, and this was said in the judgment : — " But supposing the effect of the Act to be prejudical 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 govern- ment of Canada. Assuming that the matter of the Act does not fall within the class oi subjetit described in No. 9, that sub-section can in no way interfere wiuli ',hc ffonera) authority of the parliament to deal with that matter. If the argument of the x\ppollant tliat the power given to the Provincial Legislatures to raise a Revenue by licenses, prevents the Dominion Parlii.ment from legislating with regard to any article or commodity v.nich was or might be covered by such licenses were to prevai:, the consequence would be that laws which n. I lAqmr Prohibition Appt'ol, 1896. 158 might be necessary for the public good or the public safety could not be enacted at all. Supposi' it were deemed to bs necessary or expedient for the national safety or for political reasons to prohibit the sale of arms or the carrying of arms it could not be contended that a Provincial Legislature would have authority by virtue of sub-s;'Ction !). (which alone is now under discussion) to pass any such law, nor, if the Appellants' argument were to prevail, would the Dominion Parliament be competent to pass it, since such ii law would interfere prejudicially with the revenue derived from licenses granted under the authority of the Provincial Legislature for the sale or the carrying of arms." L. R. 7. App. Cas. 887. Lord Herschell — That does not seem to me to help us on this question, because that is deaUng with supreme legislative power. You cannot be deprived of that because it nuiy affect the taxing i)ower of a particular Province, but it does not help us on this question, which is, is legislation of a "merely local nature," which are the words we have to deal with, " in the Province" which does in this way directly affect the Dominion ? I mean that is a different question and does n^.t help us. I am expressing no opin;on upon it of course. The Lord Chancellor — It is impossible to solve these conundrums without having a sj)ecilic thing before us. You have just now (juoted if it should be necessary for the purpose of good government to prohibit the carrying of arms, they might have to import a new state of facts in order to show what would or what would not be within the power. That seems to me to prove the impossibility of answering these things in the abstract. The infinite variety of human circumstances may or may not render it desirable. Mr. Haldane — Your Lordships are asked to deal with all the contentions of the temperance party in advance. The Lord Chancellor — Not only that, but all the things which may hai)i)en in the course of this world's history which may or may not render the tenqjerance legislatioi. or any other legislation i)roper. Lord Watson — How can I deal with and adjudicate upon a question of that kind ? I can hazard an opinion, but that is another matter. We do not give opinions, not judicially. Mr. Haldane — I will pass from this point v/ith this observation, that the power of raising revenue, a power which ':!1|! 154 Liquor I'roliihitioii Appeal, 1895. the Provinces and the Dominion have in different forms, is a power which nuist be necessaiily subject to the alteration of the subject matter from which the revenue is to be raised under the powers which are conferred upon these two ParHaments respectively. It cannot be merely because the Dominion Parliament has a right to put an iiidirect tax, for instance, to put a tax upon bread Lord Herschell — I do not think because it has a right : I should not be pressed with that difficulty at all. You cannot interfere with the scope of Provincial legislation in a matter otherwise local by saying "it is a matter with which the Dominion might find it convenient to deal." I should have no difficulty upon that, but where th Dominion Parliament has dealt with it by way of raising revenue, then the question arises whether you do not directly attect the Dominion legislation when you prohibit manufacture. Mr. Haldane— It is only dealt with for the purpose of raising revenue in a general fashion. Lord Herschell— -As I understand, it raises revenue distinctly by the manufacture. It has nothing to do with the sale. Of course it is true if you prohibit sale that may indirectly affect the manufacture. That is only an indirect and incidental effect, but if the taxation is distinctly upon the manufacture, if you prohibit the manufacture, you directly attack the revenue. Lord Watson — A distillery is a mere local matter, but the moment you tax all its productions for the purpose of filling the Exchequer, it may be a question whether it does not then cease to be a matter of local interest merely. Mr. Haldane — Yes. Lord Watson — The ratepayers throughout the Dominion are interested in it, the Government of the Dominion is interested in it. Mr. Haldane — Yes, my Lord, there are a number of subjects which are handed over. Lord Watson — You affect it by dealing with it in the way it is proposed other than in regard to the local interests. Liquor Prohibition Apjmd, 1805. 165 Mr. Haldane — Yes, of course one may, by a particular Act of legislation of the Province, be simply striking at the source of revenue. It might well be, one can conceive, that from the point of view of police the existence of the manu- facture of drink Lord Watson — Whether you can legislate on the ground that it is a i)urely local matter to an extent which would immediatel)' destroy that interest of the general ratei)ayers of Canada and of the Canadian Government, it may be questioned whether that within the meaning of the Statutes is purely local. Mr. Haldane — Supposing the Dominion Cxovernment to raise a revenue partlv from licenses for the manufacture of dynamite or cordite and the Provincial Legislature were to say " in none of our towns shall there be a manufactory of this kind," that, I take it, would be within the power of the Provincial Legislature on the ground of local safety, and yet it would affect the revenue in the same wav as this. That is a case which comes very close to something which is necessary in the interests of the locality. Lord Hehschell — That is the difficulty you see. Apart from the point of ^lunicipal Institutions, if you bring yourself within 10 you must bring yourself within the terms that it is merely of a local nature. Then if your Act operates outside the province it ceases to be so and the question is whether it is or is not of a local nature. Mr. Haldane — I think you must look at the effect of the whole thing. Lord Herschell— I quite understand your argument. You say that because incideiitalh' it affects the revenue of the Dominion that that does not prevent it being dealt with locally. Mr. Haldane — Yes, my Lord. Lord Watson — It goes to raise a (juestion of fact. Mr. Haldane — I think it comes to this, that there is hardly a question on the construction of these two sections that can be decided except in a concrete form. 'm ■I ^■i 15(') Liquor I'rokihition Appeal, 1895. Lord Herhchell — That is the difficulty. Taking the vary case of its heing merely of a local nature, one would want to know what the exact thing was, what the exact facts were about the Dominion Act, and how it would afiect the revenue or anything else under that Act before you could answer the question. . , ... Lord Watson — Probably the most satisfactory answer would be to say, though not perhaps to those who asked the question, in certain circumstances it will and in certain circumstances it will not. It is quite capable of that answer. Mr. Haldane — I turn now to the top of page 78 of the Judgment. There is nothing movj in the preceding page that I need trouble your Lordships with — " That a general police power sufficient to include the right of legislating to the extent of the prohibition of retail traffic or local option laws, not exclusive of but concurrent with a similar power in the Dominion, is vested in the Provincaa by the words ' Municipal Institutions in the Province' in sub-section 8 of chapter 92 is, I think, a proposition which derives support from the case of Umliif v. Tl)i' Qw'i'n. It is true that the subject of prohibition was not in question in that case, but there would seem to be no reason why prohibitory laws as well as those retaliating and limiting the traffic in li(luors should not be included in the police power which under the words ' Municipal Institutions ' it was held in Hoihic v. Tfw Quci-n to the extent of licensing, the Provinces possessed." Lord Herschell — I think it is not quite accurate to say that they possessed it mider sub-section 8. It was held they possessed it under 8 and 16. I am by no means sure that the decision of this Board in Hoihje v. The (Jitcen would have been the same if they had thought it had come under 10. If it could not be brought within any of the other specific ones I doubt whether they would have held it could be done under 8 alone. At all events, whether they would or would not, it is not accurate to say they held it to come under 8, they held it to come under 8 and 16. Mr. Haldane — Yes. Under one or the other. " The difference between regulating and licensing and prohibiting is one of degree only. "As regards the objection that to recognise any such right of legislation in a Province not extending to the prohibition of importation and manufacture would be an infringement of the Liquor I'ntliihltion Afi/H'dl, 1895. 167 power of the Dominion to regulate trade and conmiercc. I am not impressed by it. The retail liquor traffic can scarcely be ref,'ar(led as coming directly under the head of trade and commerce as used in the British North America Act, but as the subjects enumerated in section 92 are exceptions out of those mentioixul in section 91 it follows that if a police power is included in sub-section H of the former section the power itself and all appropriate means of carrying it out are to be treated as uncontrolled by anything in section 91 . Moreover Ilodi/i' v. Till' IJitirn also applies here, for although in a lesser degree, yet to some extent the restriction of the liquor trade by a licensing system would afiect trade and commerce. On the whole, I am gf opinion that the provincial Legislatures have power to enact prohibitory legislation to the extent I have mentioned though this power is in no way exclusive of that of the Dominion but concurrent with it." Lord Herschell — I think that is going a Httle too far to say that the Dominion has conciUTent power hecause that niiglit imply that they could legislate for tlie particular Province. I should say rather than concurrent i)ower an overruling power, if they considered such legislation necessary for the purpose of good (xovernment and order of the whole Dominion. Mr. Haldane — Yes. The last part of the Judgment I do net read hecause it simi)]y states the argument. Lord Watson — It is not quite co-extensive and it is not concurrent. In the case of concurrent power the general rule is that the authority which first exercises it prevails. Lord Herschell — One sees what the learned Chief Justice means. It is a verhal criticism rather than otherwise. The Lord Chancellor — I think the next four or five lines are important, as emphasising what the Chief Justice means. Mr. Haldane — Yes. I will read them : — " If I am wrong in this conclusion, it is sufficient for th . decision of this Appeal to hold, as I do, that the Legislature of Ontario had power to repeal and re-enact the legislation in force at the date of the Confederation Act, which gave Municipal Councils the right to pass by-laws absolutely prohibiting the sale of liquor by retail within certain local limits. Having regard to the history and objects of Confederation, I can scarcely think it possible that it could have been intended by the framers of the British North America Act to detract in any way from the jurisdiction of the Provinces over their own several systems of Municipal Government," ;iti i.'iP ■I ,1'. 15fl Litjunr I'roliihition Appeal, 1H05. Tionl Hkrh(;hkll — But they did detract from the juris- diction of the Provinces over their own several systems of Mimicipal (iroverrnnent, hecause it is admitted that tliey did interf(>re witli the power of tlie MunicipaUty. Is that one of those tilings in which they have interfcnul ? It is too hroad, surely, to say that it was not "to detract in any way from the jurisdiction of the Provinces over their own several systems of Municipal Government" ? Lord Davey — I think tliis ohservation of the learned Chief Justice is only important if he is riglit in his previous conclusion. , /- *- ; ^ Mr. Haldane — Yes. . Lord Watson — If he is wrong he does not seem to have adverted to the concluding language of section 1'29, which gives to each of them the power. The old law is to stand, hut the Dominion Parliament are to have power to deal with the whole of the legislation. Mr. Haldane — Section 129 makes the federal power have the power of repeal — it follows up sections 91 and 9*2. Lord Watson- lation '? -On the same lines as the right of legis- Lord Hbrschell — It would seem almost to follow. I should have thought that if there was no power to enact this there could he no 2)ower to re})eal it. If there is no power to enact, and the Chiei Justice is wrong in his point, it is because that is taking away from the Provincial and giving to the Dominion Parliament. If so, it must follow that the power to repeal the existing legislation is taken from the Provincial and given to the Dominion Parliament in that section 129, and it rather strikes me that is the same question. If he is right in his first point, then it is for the Provincial Parliament alone to deal with the rei)eal. If he is wrong, it was for the Dominion Parliament to deal with the repeal. Mr. Haldane — The fact that municipal bodies, prior to Confederation, possessed this power shows that to some extent it was regarded as a matter of local power. The Lord Chancellor — I should have thought it was ■Liqnoi- Pruhibit'ton Ajtjual, 185)5. 151) the other way — that they had plainly tho power at that time ill overythiiig. Mr. Haldank — They all had it, more or less. Lord Hkkschkll — They all had the full jiower ; they had delegated that power, some of tlieiii more and Kome less, to particular local hodies, hut ditt'erently in each State. Lord Wathon — They had the same plenary power in those days within the Province as the Dominion |jei,'islature and all the other le{j;islatures put together. Mr, Haldane — Yes ; and they were in the habit of giving to municipal hodies these powers. Lord Heuschell — They were in the habit of giving them some jiowers in relation to dealing with drink differing in different Provinces. How does it follow from that that it was intended that each of the Provinces should have the power of giving any powers they pleased in relation to drink to any municipal hodies ? Lord Davey — It might be \mi in this way : it occurs to me that if it gives them power to legislate on any matter relating to Municipal Institutions, and dc fiu-lo at the passing of the Act certain municiiial bodies had certain powers, the repeal of those powers would be a matter relating to an existing Municipal Institution. Lord Watson — I have arrived at the conclusion that the right to enact and the right to repeal old enactments did not stand upon exactly the same footing, hut whichever legisla- ture the one belonged to must necessarily have been possesseti of the other. Mr. Haldane — That seems to have been the intention of section 1*29. However, that is the only way that the argument can be put. Then Mr. Justice Fournier concurs, and Mr. Justice (rwynne gives a very long Judgment the other way. I think I need not read the whole of it, as it would take a long time, but I will read such portions as seem to be necessary, and if my friends think I am missing anything they can rectify it. m :i 111 ■m ;i 1: mmmmm W Liquor Prohibition Appeal, 1895. hi Lord Herschell — We have probably all read the Judgments. Although you pass over certain i)assages, it must not be taken that we have not informed ourselves of them. Mr. Haldanb — That is so, and I think it would he only wasting your Lordships" time for me to read them further. Lor.^ Herschell — If there is any part to which you wish to call special attention do so, but it is not necessary to read the whole of them as we have read them ourselves. Mr. Haldane — There is no comment on these Judgments which your Lordship will not hear from the other side. Lord Morris — This [)assage on page 85 seems to be material — " Now the several questions in the case submitted to us are resolvable into this one. * •:=•:■" That is very satisfactory. Mr. Haldane— Yes, Mr. Justice Gwynne takes rather a strong view. There are a grent many very edifying things like speeches from people who introduced these things into Parliament, and a number of things which are of great historical value l)ut not otherwise pertinent. In this Judg- ment of Mr. Justice Sedgewick's your Lordshij) will get the arguments more satisfactorily put. Sir Richard Couch — Mr. Justice Hedgewick's Judgment gives them better than any other I think. Mr. Haldane — Yes, it is a very good Judgment. Lord Herschell— There is some very forcil)le reasoning which certainly impressed me very much in all these Judg- ments with regard to this coming under '' Municipal Institutions" and coming under nothing else. I thliik it is very clearly put in Mr. Justice Hedgewick's Judgment on page 101. Sir Richard Couch — It is better ])ut there than in any other. Lord Herschell — " What meaning then is to be jriven to Municiiml Institutions in the Province ? Three answers may be advanced. First, it may mea« ~ LiqiKir Prohibition .ippail, 1805. 1()1 vl :'!f! that a, Legislature hiiiS power to divide its territory into defined areas, constitute the inhahitants a Municipal Corporation oi Community, give to the governing bodies of officers of such Corporations or Com- ,, munities all such powers as are inherently incident to oi' essentially necessary for their existence, growth and development, and confer upon them as well all such authority and jurisdiction as it may lawfully do under any of the enumerated articles of section 92. That is the narrowest view. Or, secondly, it may mean that a Legislature may also confer upon Municipalities, in addition to these powers, all those powers that were possessed or enjoyed in common by the Municipalities or Municipal Communities of all the confederating Provinces at the time of the Union, the jiix i/mtiuni of Canadian Municipal law ; or, finally, it may mean that a Legislature may confer upon Municipalities all those powers which in any Province or in any place in a Province, any Municipality at the time of the Union, as a matter of fact, pos- sessed by virtue of legislative or other authority." Those are three possihle cases. Mr. Haldane — Yes. Then he says that he (Usseiits from putting the case in the widest view. " The first view in my Judgment is the proper one, a view which gives scope foi' liberal interpretation as to what may constitute the essence of the Municipal system and give due effect in that direction to the Municipal ./».s i/cntiion of the three old Provinces, and I entertain the strongest doubt if it ever was contemplated by the use of tlie words ' Municipal Institutions ' to make any particular reference to the li(juor traffic at all." Then he states certain reasons for thinking that, an:l he refers to class 9 of section 92 and to the Quehec liesohitions. My Lords, it does seem a littk' odd to refer to those things which took place and which were no doubt the basis of the Act which afterwards became the Confederation Act, for that is certainly not what your Lordships luive got to interpret, They iin\ very interesting, but they are the words of tlie promoters in (yanada of this Act, promoting objects which, for aught we know, may have been modified by Lord Carnarvon and his advisers when they came to frame the statute which was afterwards passed into law. Lord Herschell — Were they j)assed into law in the terms settled on ? Lord Watson — What is the date of this case ? Mr. Haldane — It is last year. Lord Herschell — The same date? «3 M iii!SiS!!iaa!*iiiiniiiwiiiM m 162 Liquor I'rolilhition Apjical, 1895. Mr. Haldane — The same date, and the Judgments were given the same day, the same afternoon. . , Lord Herschell — They gave their Judgments the same day, l)ut the case had been heard before C'ourts differently constituted. Mr. Haldane — Yes, a long time had elapsed in both cases l;et\veen the arguments and the Judgment. My Lords, I think I shoukl be only taking up your Lordships' time if I went into this, because my friends will call your attention to any ])oints in the Judgment which they thirk of importance. My. Newcomue — If your Lordsliii)s please, I ap))ear for the Attorney-General of the Dominion of Canada. The sub- ject of the Keference I take it nuiy be regarded as prohibition, I think that is the subject to which the various (juestions are directed, and tliat was the question which was dealt with by your Ijordships' Board in the case of Iiiis.si'11 v. Tlir (Jaren which has been referred to, but which I think it will be necessary for me to refer to fit some greater lengtli than has already been alt with by the Canada Temperance Act, from provincial authority. Lord Herschell — How do you put that ? l\[r. Newcombe — I submit it must be held to have gone to that length. Lord Herschell — It did not exclude legislatioii on such a subject within the Domniion, but 1 think it excluded it in the direction of [)rohil)ition from the Provinces. Mr. Newcombe — ^^y pro])osition is this, my lord, that it necessarily did exclude the sul)jtH't from provincial authority liaving r(>gar(l to the power of the Province to enact prohibition as to the whole I'nnince generally. The (juestion of the effect of the a>signment to the Province of private and local matters may be another (piestion. but it sefms to me that the case was ii])proached by your Lordshijis in Hitssrll v. 'I'lir (Jmoi and decided in such n way as to exclude the subject generally from i)rovincial competency. Tliat is the effect of the decision. LiijiKir I'rolilhitidii .Ijijx'iil, IHI);"). 163 ; 1 1 Lord Hp:hschell- -1 will t(^ll you at oneo my difficnlty, and yon will deal with it no doubt. This Board expressed no opinion as to its coniing within the two, it founded its judgment entirely upon the earlier j^art of the section, its coming witiun the general ))ower to legislate for all Caiiada. Now the provision at the end of section 1)1 is to tlie etlect that the power of the })rovincial legislature to legislate on nuitters of a merely local character shall l)e excluded and sluill not be taken to extend, where the limits of the legisla- tion be local oidy, to matters coming witiun the enumerated provisions of section 91. This Board did not dt^cide that the })rohibition of li(juor came within any of those enumerated sections ; it decided it upon the ground that it canu:^ within the lirst provision. Now if you read the words at the end of section 91 they nn[)ly that so far as their limit is nu^rely local and the effects are merely lociil, the Provincial legisla- ture may legislate on matters with which nevertheless the Dominion Parliament may luue power to legislate generally as being a matter for the peace or good government of Canada. T'lie very express words at the end of s(K-tion 91 ap[)ear to me to imply that there may be cases in wliich you may legislate locally by Provincial legislative a,uthority and nevertheless the Parliauu'nt of Canada may legislate generally. Mr. Newcombe — For peace or good govermnent, 1 jord Hekschell — Yes. Mr. Kewcomue — That is so long as it does not come within the enumerated clauses. Lord Hekschell — Yes. Of courst^ if they have decided it on the ground that it came within the r(»gulation of trade and connnerce, one of the enumerated things, then no doubt that would have been a strong ))oint, but I am only speaking of the scope of Hiissi'll v. The (Jnccii. I am not speaking of this case oidy. So far as lliisscll v. 'I'lic (Jiiccii is concerned it does not seem to me to g*> further than that. That is why I say it does not strike me that the ground upon which the decision in Ilitsm'U v. Tin' (Jmrv is based excludes the pi'ovin- cial power from dealing with the nuitter locally. Lord Watson — 1 do not tliiidv there is any decision of -M 2 I 'I Dk, 164 Liquor Prohibition Appeal, 180f5. this Board which settled the power, if any, in this matter of the Dominion Parliament as heing limited to such subjects. Mr. Newcombe — No, my lord. Lord Watson — If it did that it may be so, but it has not been so held, and I feel a certain amount of difficulty upon that subject. Mr. Newcombe — For the purpose of considering really what lias been decided by the case of Biijr to allow the Province to interfere also in the matter. Lord Herschell — One cannot helj) having certain doubts as to whether the Parliament of Canada could legislate as regards the sanitary arrangements of houses in a particular town in a Province under this genc^ral })ower for the peace, good order and government of Canada, which nmst mean Canada at large, in general It must mean something in a II I/uinor I'rohihitinn Appeal, 1895. 1()7 particular place, and it is difficult to suppose then that the Parliament of Canada could legislate for what may he a temporary measure retjuired to meet a local exigency at a particular time in a particular town in a Province, and if the Parliament of Canada cannot legislate, it is very dilhcult to suppose that the Provincial Legislature cannot, and that there is no power of legislation ahout it at all hecause all legislative power was intended to he in one or other of the Provinces. Mr. Newcombe — Yes. Lord Watson — Supposing the Parliament of Canada passed an Act compelling the vaccination of every child within six months, and that within one of the Provinces, owing to an outhreak of small-pox the Provincial Legislature thought it necessary to enact that the vaccination should he epeated every seven years, would that he heyond the i)ower of the Provincial Legislature, or would it he in conflict with the Dominion legislation ? I do not see that the Dominion Parliament could provide that a child was never afterwards to he vaccinated during its life. Lord Herschell — There might then he a (piestion whether that would he within the powers of the Dominion Parliament, whether it would not he that kind of legislation which is negative merely. Mr. Newcombe — There would he the question whether the Dominion had that jjower. Lord Herschell — Supposing this to he witiiin the power of the Dominion Parliament : that they could enact that every child must he vaccinated hefore it reaches the age of three months, the Province could not say that it would l)e enough if it is vaccinated hefore the age of eight months hecause that would he in direct conflict, and the Provincial Parliament would he dealing with a matter which ex hijpothcsiH was within the jurisdiction of tlie Dominion Parliament. That they could not do. Mr. Newcombe — They could not do tliat. In /I'/mv// v. 77;^' (Jiireii, your Lordships" Jloard npproached the c.ise from the standpoint of the . Provincial powers, and the question was, was this legislation within the [)ow(H" of the 1(58 Liquor Prohibition Appeal, 1895. ii Province ? It was urged that it was within the power of the Province under the several heads which are always invoked for the i)ur})0se of conferring that jurisdiction. " Shop, " saloon, tavern, auctioneer and other licenses for the purpose " of raising revenue for Provincial purposes " was the first head dealt with hy the Judgment, and it was held that the Province could not enact jn-ohibition under that clause. Then under " property and civil rights " tlie same conclusion was come to. Then we come to the question with regard to No. K) : "generally all matters of merely local or private " nature in the Province." What was said on that subject is at pages 24 to 2('> of the Report as found in 2 Cartwright's cases, and L. B. 7 App. Cas. at page 840. It begins in this way : — " It was not of course contended for the Appellant that the Legislature of New Brunswick could have passed the Act in question which embraces in its enactments all the Provinces, nor was it denied with respect to this last contention that the Parliament of Canada might have passed an Act of the nature of that under discussion, to take effect at the same time throughout the whole Dominion. Their Lordships understand the contention to be " Lord Herschell — We had a large admission made there by those who re})resented the Provincial Legislature, on the question of whether the Parliament of Canada could or could not pass such an Act for the whole Dominion, that is to say, an Act coming into force at cnce for the whole Dominion. Mr. Newcombe — Yes. Lord Herschell — The only point there made was that they could not pass an Act for the whole Dominion which was to affect localities separately. Mr. Newcombe — Yes. " Their Lordships understand the contention to be that, at least in the absence of a General Law of the Parliament of Canada the Provinces might have passed a local law of a like kind, each for its own Province, and that as the prohibitory and penal parts of the Act in question were to come into force in those counties and cities only in which it was adopted in the manner prescribed, or, as it was said ' by local option,' the legislation was in effect and on its face upon a matter of a merely local nature." • That is the argument that was urged, because it came into effect in localities, in counties. Liqmir Proliihititm Appeal, 1895. 109 Lord Watson — A great deal of the argument was founded upon this, that if tlie J)oniinion ParHanient c-hose to exercise that jjovvcr they nmst do so hv means of an imperative Act ; that to make the Act permissive was to enahk^ some Provinces to escape f^-om its incidence altogetlier, and that was not v/hat was inte ded at alh Mr. Newcombe — ^Yes. Then follows a quotation from the Judgment of Chief Justice Allen, m which he says : — " ' Had this Act prohibited tho sale of li(iuor, instead of merely restricting and regulating it, I should have had no doubt about the power of the Parliament to pass such an Act, but I think an Act which in effect authorises 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 bo sold therein, deals with matters of a merely local nature, which by the terms of the 16th sub-section of section 92 of the British North America Act are within the exclusive control of the Local Legislature.' Their Lordships cannot concur in this view. 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. Parliament does not treat the promotion of temperance as desirable in one Province more than in another, but as desirable everywhere throughout 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 in motion at once and everywhere within it." Now with regard to the consideration urged that as the prohihitory and penal parts of the Act in question were to come into force in those counties and cities only in which it was adopted in the manner prescrihed, or as it was said hy " local option" the legislation was in effect, and on its face upon a matter of a merely local nature, I suhniit as to matters of a merely local and private nature that that expression must he construed to mean sometiiing less — a matter of a puhlic and provincial nature. Notwithstanding the word " local," of course it is not urged and could not he urged that this is a private measure. But the word " private " prohahly throws some light upon the word " local," and may assist in the interpretation of that word. Lord Herschell — It is " local or private." Mr. Newcombe — Local or private ; it is alternative ; but the two are grouped together disjunctively. But where the * 'i 170 Liquor Prohibitiuii Appeal, lHi)5. Province is anthoriHed to pass a measure with regard to iJ^ local matter, that is a matter which does not atfect the Province generally — it does not affect the entire Province. If so, it would be taken out of the category of " local." Perhaps it would he fair to construe those words as having regard to local or private bills. They could pass local and private measures under that sub-head of the British North America Act, section 02. They could pass a measure which would ordinarily be given effect to l)y a private or local Bill, but not a matter of general and equal application to the entire Province. I submit that that is a construction which may be placed upon the words "private and local matters " for the purpose of saying that it is involved in the decision of tlttssell V. The (Jueen, and I say that the Province cannot pass a Prohibition Act, an Act prohibiting the sale of liquor, coming into force in the Province at large, coming into force generally throughout the Province. It cannot give effect to prohibition within its borders by its own legislation. Lord Davey — The words are "generally all matters" which looks as if things not jjreviously enumerated were considered as being within it. Mr. Newcombe — I submit the construction is that there are a large number of things enumerated in section 92 as to which authority is given to the Province, and it may be that the 16th sub-clause does not carry the Provincial legislative authority very much beyond what has been already conferred upon it, but whatever is conferred by those words is a general grant, in the last sub-section of section 92, which would enable the Province to deal with matters which are merely local and private. You have the word " merely " there, thus accentuat- ing as I submit the limited character of the legislation which may be enacted under that Clause. In the case of L' Union St. Jacques de Montreal v. Belisle (L. R. 6 P. C. 31), there was a question raised as to legislation with regard to what were merely Ideal or private matters, and their Lordships said, at Cartwright, page 68 of that case : — " The subject matter of this Act, the 83 Vict. chap. 58, is a matter of a merely local or private nature in the Province because it relates to a Benevolent or Benefit Society, incorporated in the City of Montreal within the Province which appears to consist exclusively of members X: . % i Jj'fliiiir I'roliiliifiiiii \j}jic a privalo or local matter, and I am not aware of any (h'fision of your Lordshii)s' Hoard in whi(di a matter has been considered local. Lord Wathon — Would a matter be a matter of ])rivate nature if it affected every person in the Province ? Mr. Newcombe — T submit it would not be a local matter. Lord Watson — Do you say not : it is alternative, local or l)rivate? A i)rivate Bill here wouh, dimply relate perhaps to the affairs of some individual or coni[)any, but if it affects everybody in Britain it would not be a private Bill, and I do not see why we should include in local measuit s a measure which would affect every person in the Province. The word " local '" so far as I have seen here may mean local as refj;ard8 particular Provinces as distinguished from the whole Dominion, or local as regards part of a Province in contradistinction to the whole Province. Tt may be local as regards a j)articular locality, or it may mean practically the whole Province which would be local in respect to the whole Dominion. Lord Mouuis — What you want is, local in the Province. Lord W^ATsoN — Look at the object of the enactment here. The object of the enactment here is to give legislative power to a Provincial Legislature with respect to matters that are provincial — shortly speaking ; I do not say that is a full definition — and to give to the Dominion Parliament matters which, as far as Canada is concerned, relate to the whole Dominion. Mr. Newcombe — I submit that the words " local matter in the Province " nuist be construed as meaning something less than the whole. Lord Watson — Li any case the word must either apply to the Province, or concern some subject which belongs to the Province as distinguished from the Dominion, or must refer to some matter in which the Provinces have a f ' I ^Mshitioii is j^eiieral in its application it hriiij^'s ahont iiu'(iuiility and divcisily with re^^anl to the ))rohihition, with n^f^iird to th(> ri/^dit to sell intoxicatiiif,' Miinors. In that way, my Lords, I sul)niit it involves a |)ovver to [jvohihit in a locality and a power to dechire freedom from prohihition in a lociihty. It is lejfisljition relating' to lociiHties. The effect of the .hidf^nient wonhl seem to he tluit the Dominion Parliament has authority to [)rohihit locally and as an illustra- tion of that principle or as an ilhistration of what, T snl)mit, the Dominion has a rij^dit to {\o with regard to tlu^ ])rohihition of the sahi of li(|Uors, take the Act wiiicli is found in the Dominion llevised Statutes with regard to the ])reHervation of order near puhlic works ; that is an Act which i)rovides that wh(>ve any puhlic work is in course of construction under the authority of the Canadian Govermnent, a district may he proclaimed in which the act shall come into operation, and then in that district the sale of li(iuor is i)rohihited. Now that is legislation which is i)urely local, which can never come into efi'ect under the scope of the Act excejjt as to localities, and yet I suhmit that within the decision in Riissall v. The (Jitrni it is an Act which is within the authority of Parliament. Then if legislation of that character is within the authority of Parliament, it is legislation with regard to a particular suhject, the suhject of i)rohihition that is, and I suhmit that that is one suhject which can only he regarded in one aspect, which is only hrought ahout for one purpose, and the decisions of your Lordships' Board in which certain suhjects have heen lield to come within the Provincial jurisdiction and also within the Dominion jurisdiction, having regard to the standpoints from which they are regarded or the i)urpose for which the legislation is enacted, are not applicable to this case where we have a single suhject, single as to aspect, single as to the pur})ose in which it is to be dealt with. Then there is a provision in section 94 of the British North America Act with which your Lordships are familiar, which provides for legislation as to uniformity of laws which makes special })rovisions with regard to the Dominion authority to legislate for uniformity of laws which section does not include the subjects under consideiation. Now upon the question of Municipal Institutions, I ti 174 lAquor I'nihihit/nii ApjK'al, 181)5.' m- submit the exclusive power of the Legislatures with regiU'd to those Institutions is not intended to go further than to enal)le the Legislatures to establish them, and any authority which they may validly confer on Municipal Instituticms nuist be derived through or have regard to the other sul)jects enumerated in section 92, which do not, I sulunit, include the power to prohibit, and there ai)pears to be no coiuiection between the Municipal Institutions and the subject of })ro- hibition regarded in the abstract, I would like to refer your Lordshi})s to the Judgment of Mr. Justice King, upon page 108, at the top of the page, in which he says — "In treating of the exclusive powers of the provincial legislatures clause 8 of section 92 respecting Municipal Institutions was not in terms referred to in liiis.si>U v. 7'/if ()wcn, and this fact has sometimes been made use of in the way of criiicism of that case. Indeed in the argument of the Dominion License Act one of theii' Lordships expressed the opinion that clause 8 of section 92 had not been argued in Itmaell V. The Qiwen, but the Counsel then arguing (the present Lord Chancellor) stated that it appeared from a shorthand note of the argument that the point had been distinctly urged. \\'hen ( 'Hi/ of' Firdrrich-toH v. I'lif (Jui'i'ii (wliich is known to l)e substantially the same case) was before this Court, the point was argued. ]\Ir. Lash, Q.t'., one of the Counsel for the Act thus alludes to the argument as adduced by the other side : ' It is also contended that this law liaving for its ' object the suppression of drunkenness is a police regulation, and so ' within the powers of Municii)alities,' itc. In liciimt v. Jiistitrs (if' Kitu/n, Chief Justice Ritchie had previously dealt with the like conten- tion, and in Citj/ of Frfilcrirldon v. Thr Qiwen, adhered to that decision. To that case I beg to refer. "But what is more pertinent is the fact that after clause 8 of section 92 had been fully considered and given efi'ect to in Jhiih/f v. 'The Queen, their Lordships as though it might be thouglit to make a difference with JlKssell v. The Queen took occasion to re-affirm that decision: 'We do not intend to vary or depart from tlie reasons ex- pressed for our Judgment in that case.' " Then on page 109 he says at the foot of the page : " Then is the power to prohibit reasonably or practically necessary to the efficient exercise by the Province of an enumerated power? it is urged that this is so with regard to clause 8 respecting' Municipal Institutions The licensing system is ordinarily nssociiiJ:e«l with that subject and licensing is also pointed at in clause 9, but there is no inherent or ordinary association of prohibition with Jlunicipal Institu- tions. Neither in England nor the United States is this so. The state of things in tlu' Confi'deratiug Provinces at the tinu' of I'liion will be referred to hereafter. What is I'easonably incidental to tlie exercise of general powers is often a practical <; 't 'ion, more or less dependent upon considerations of expediency. ! le -.everal Judgments of the JjiijLuir Prohibition Appeal, 1895. 175 Privy Council have placed the respective powers of the Dominion and Provinces upon the subject on a wise and practical working,' basis, affirminfjr on the or* hand tin- exclusive rij^ht of the Provinces to deal with license and ki> Ired subjects, and affirming on tlie other the right of the Dominion to prohibit, either directly or throiiijh the nu'thod of endowing the several provincial nnmicipalities with a faculty of accepting prohibition or retaining license. Wherein is it reasonably necessary for purposes of ^Municipal Institutions that the Provinces should have like power of suppression, to be exercised either directly upon the entire Province or ttu'ough the b( stowment of a like faculty upon the municipalities '.' Why (in any proper constitution) should a considerable ti'ade be subjected to prohibition emanating from dilierent legislative authorities in the one country ? The suppression of a lawful trade impairs the value of the power to raise revenue by indirect taxation. Prima faiir tli(> power that levies indirect taxation has the power to protect trade from suppression and the sole power of suppression. And in a system of govennuent where the Provinces receive annual subsidies out of the Dominion treasury it seems repugnant that the Provinces should through mere implications re- specting Municipal Institutions possess the power to destroy a large revenue-bearing trade. It is foi- the Dominion to determine for itself whether or not such a trade shall be suppressed, and, if so, how and to what extent. The Dominion has so expressed itself. It has entered every municipa.lity and ottered to it the suppression within it of the liquor trade undei- sanctions of Dominion law. " It is further contended, lunvever, that prohibition is local and munici])al, because that at the time of the I'nion two out of the three original members of the Union (having then, of course, full power of legislation) had conferred upon the municipalities a local option of prohibition (within wider or n.arrower limits) and had incorporated this provision in the Municipal Acts. Even had this been general with idl the Provinces I do not think that the conclusion drawn from it is warranted in view of the whole of the Britisli North America Act, nor perhaps would it support the claim to deal with the matter otherwise than through the like method of municipal local option. Put, assuming that a connnon understanding of words in an unusual sense might be inferred from such a '^tate of things, if it had been general, the fact that in one of the confederating Provinces (New Brunswick) there was no such provision, deprives the arginnent of the weight that only an entire concensus could give to it. In New Brunswick there were at the I'nion two groups of Municipal Institutions, the representative kind (as in Upper nnd Lower Canada) throughout part of the Province and the .system of local government of counties through the justices in session (as in Nova Scotia) throughc ut the remaining part. But in neither kind was there vested the power of suppressing the liquor trade. The Act in fence in New ]5runswick was 17 Victoria, cap. 42 as from time to time revived and contiiuud. This i.'t important for temperance legislation had gone further in New Brunswick than in any other Province. In 1855 an Act was passed prohibiting througliout the Province the importation, manufacture, and traftic ir intoxicating ' VI rmi I f 176 Liquor I'rohibitiou Appml, 1805. licinors. This was repealed in 1850 amid great political oxcitcment, and the absence of local option at the time of the Union was not a casual omission. Notwithstanding the great weight of judicial authority the other way, I cannot, in view of this, give to the words Municipal Institutions as used in the British North America Act a meaning not inherent in them simply because of this extension o'i po»ver to the municipalities in several, but not all, of tlie confederating Provinces. It seems to me that the contention in question comes to this, that the words Municipal Institutions are to be read not only as meaning everything inherent in or ordinarily associated with them, but also all other powers exercised by the inunieipalities of any of the confederating Provinces. I nmst add that, even if the practice had been general, such an excresence on the municipal system would be removed by ^V j other provisions of the liritish North America Act." Those were the ohBervations of Mr. -Justice King, and I submit that while " municipal institutions " might cover what would ordinarily he incidental to the exercise of municipal power they would not refer to what would be regarded as special or extraordinary such as the power to prohibit a trade, the power to proliibit the sale of intoxicating liquor. It might be possible that under Municijial Institutions the Provinces would have the power to prohibit a nuisance, to prohibit that which was obnoxious, but the prohibition of a trade brings one into contact with a different class of ideas, with a class of ideas that is not ordinarily associated with Municipal Institutions. The contention jf the other side too, I submit, comes to this, that because under Municipal Institutions previous to confederation ilie Provinces had conferred upon the Municipalities the power to prohibit, therefore the Provinces may still confer the like power upon the Municipalities. That involves the idea, I submit, that the Provinces may now confer upon the Municipalities })Ower which, so far as this particular subject of Municipal Institutions is concerned, they could not directly exercise. That is, they may do through the medium of Municipal Institutions what they could not do directly, and a con- struction of that kind, I submit, could not be reasonably adopted. Huch a departure from the ordinary legislative pro- cedure, if contem[)lated by the Act, one would have expected would have been expressly enacted. Now, if your Lordshij)s ])lease, 1 sulnnit that the subject of prohibition comes within Dominion authority under the general woids of secti(ni \)1 as legislation for the })ur})ose of i^'.. "W!e5!SB!!SSSSP=n?C^:^5!5 ^•frWt^f^S^rfttftflllii'J*^^ ^WFffv ' Liquor Pr(>hil)iti<))i Apprul, 1805. 177 the order and good -Jioveriiiiient of Canadii, liaviuj,' regard to the subject of ('riminal Law as statt-d in the eas(> of Itiissdl v. The Qui-"},. The two things are associated together in that case. [^Adjoiinn'tl for a slmrt liiiir. | Mr. Newcombe — If your Lordships please, I was, wht>n your Lordships adjourned, taking the jioint that the sul)jeet of prohibition was within the sco])e of Dominion authority as to I'^gishitioD for tlie neace, onh^r and good goverinnent of Canada, having regard to Criminal Law, and upon that point I refer yoi r Lordsliips to the case of Jhisstl] v. 77//' (Jiiccii (L. H. 7. App. Cases at page 888) at pages 21 to 28 in the 2nd volume of i.^artwright's C'ases, from which I formerly cited. Their Ij >idshi})s said this : — " Next their Lordsliips cannot tliink tlmt the 'J'enipcranco Act in question pi'ouerly belonf>;s to the class of subjects ' property and civil rights.' It has in its Icf^al aspect an obvious and close similarity to laws which place lestrictions on the sale or custody of poisojious dru.u^s or of dangerotisly I'xplosive substances. These thinrty to be criminal and wrongful. Laws whicli make it a criminal oll'ence for a man wilfully to si't fire to bis own house on tli(> ground that such an act endangers the public safety, or to overwork his horse on the ground of cruelty to the animal, though affecting in some sense pi'operty and the rigiit of a. man to do as lie pleases with his own, cannot properly be regarded as legislation in relation to projierty or to civil rights. Nor could a law which pro- hibited or restricted the sale or exiiosure of cattle ha\ing a conta.gious disease be s(» ri'garded. Laws of this nature, designed for the pro- motion of public order, safety or morals, and which subject those w ho m 178 Ijquor Prohlhifioii Apihud, 1895. !J«1 iSl'ii contravene thorn to criminal procedure and punislnnent, belong to the subject of public wrong's rather than to tluit of civil ritjflits. They are of a nature v/hich fall within the general authority of Parliament to nuiki^ laws for the order and j,'ood 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." Then if your Lordships phrase that is the ])assajj;e from the decision of llnssfll v. The (Jiurn which refers the sul)ject of prohibition to the general words " })eace, order and good Government of Canada," and their Lordshi])s state that it belongs to legislation of that character hut having direct relation to Criminal Law, which is one of the eiuinierated subjects ; find if by force of the connection of those two subjects it is to be referred to the two jointly or to the subject of Criminal Law singly, then we have a condition of afl'airs where the words " local and private matters " under section 92 would not admit of a construction which would entitle the Province to legislate. In the case of Teuiumt v. TliC Union Bank which has been referred tc> and which is in the Appeal cases, 1894, page 45, their Lor(lshi])s stated what is probably merely a re-statement of the words of the Act : — " But section 91 expressly declares that ' 'notwithstanding anything in this Act ' the exclusive legislative authority of tVie Parliament of Canada shall extend to all matters coming within the enumerated classes which plainly indicates that the legislation of that Parliament, so long as it strictly relates to these matters is to be of paramount authority." so long as it strictly relates to what is einnnerated in section 91 ; and as I understand the Judgment in Iiiisarll v. 'J'hr Quini it was held there that the subject with which your Tiordships were then dealing directly related to the subje(?t ot Criminal Law. Hence the authority of there two cases would be to refer the subject to one of the eaum^n-ntcd classes undtn* section 91. That would ov<>rride any auth'^vify which tin Province otherwise might have under " jjrivate and local matters." It would also appear to follow I submit from these decisicms that whatever authority a Province may have as to ])rohil)ition of Trade it could not pass a hiw as to the Province, as to its own legislative jurisdiction territorially speaking, in the words of the Canada Temperance Act. ';'■■>'.■■ ?V Lord Watson — Do vou njaintain that the terms of sub- ^iwm TJquor Prohibition Appeal, 1895. 171) IS ll o 'V H al to w h ll- r ?• section 2 of section 01 gives to the Dominion Le<^fislature power to proliibit or abolish a particular trade ? Mr. Newcombe — Yes, my Lord, I submit that, because sub-section 2 is " all subjects dealing with Trade and Com- merce." Lord Watson — Do you think that in any ])roper s(Mise " Regulation " involves abolition ? Mr. Newcombe —In dealing with a general subject I submit so. The Regulation of 'J'nide and Commerce is a large subject. Lord Watson — If it had been " Trade and Conuner'-e " I could (pnte well have understood that these words might have implied abolition as well as regulation, but wlien the ])ower given expressly is confined to the regulation of the li([Uor trade could they abolish it. I could quite understand their doing it in virtue of the general power given them at the commencement of the section Mr. Newcombe — If instead of the words " Regulation of Trade and Connnerce " we had the words " the Regulation of the Li(pioi' Trade. 1 should conceive that under that the Donnnion Legislature could not destroy the subject by legislation which had been assigned to it. It couhl not say there shall be no liN — Are they to do away with that vhicli is to l)e regulated ? Mr. Newcombe — They could not do awav with that which is to be regulated, but it seems to me that the construction of the words which we have adnnt of the other view. While you could not in legislating with regard to Trade and Conmierce or in regulating Trade and Commerce destroy Trade and Connnerce entirely, you can regulate the subject generally. You can say that Trade and Commerce shall exist in certain commodities. You can in the exercise of that general power of regulation prohibit a particular trade. You do not destroy as you do in the other case the subject matter of legislation. You do not do away with the trade which is to be i^'gulated because that section is not confinetl to any N 2 «H 180 Liquor Prohihition Appeal, 1895. particular trade. Now upon that question of the regulation of trade, we contend, if your Lordships please, that legislation of this character does come within suh-section 2 of section 91, and in that connection I should like to refer to sections 122 and 182 of the British "North America Act, section 122 says : — " The Customs and Excifie Laws of each Province shall, suhject to the provisions of this Act, continue in force until altered by the Parliament of Canada." Section 132 says :— " The Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire towards Foreign Countries arising under Treaties between the FiHipire and such Foreign Countries." Of course I do not refer to section 122 for the pur})ose of showing that the Dominion has authority to levy C-ustoms and Excise. That of course we get under other provisions of section 91, hut jin'md facie it seems to me, ahsolutely the power which may levy Customs and Excise, may also prohihit importation or manufacture, and if importation and manu- facture, therefore sale. We have under section 122 a declaration of the Imperial Parliament that the Customs and Excise laws which were in force in the several Provinces at the time of confederation shall remain until altered hy the Parliament of Canada. Now I will assume for the pur[)ose of the argument that the prohibitory power is what the Province asserts, not exclu- sively necessarily, but that they have power to prohibit ; and supposing such a law had been enacted by the Province before any change was nuide by the Parliament of Canada in the customs and excise laws prevailing at the time of the Union, then you would have prohibition and also legality so far as customs and excise were concerned. You would have illegality in the importation and in the sale so far as importation and sale were conceined, but so far as levying Kxcise and C'ustoms' Duties upon the connnodity were concerned you would have a law authorising it. You would have a tradt* legal for one purpose and illegal for the other jjurpose. which is, 1 submit, a constructio)i that cannot be reas()nai)ly adopted. Lord Watson — The extu'cise of that power by the Province "f^i' Liqilur I'ruhibitioii Appeal, 1895. 181 would not alter the Customs' Law. It would simply result in diminished revenue. Mr. Newcombe — No, my Lord, it would not alter the Customs' Law, but that is an argument to show that the Province does not have it. Ijord Watson — It might affect more than the import trade of the Province. It might affect the import trade of the country. Mr. Newcombe — Yes. Lord Watson — The second ground makes it doubtful whether that power belongs to the Province. It is not at all likely that a power of that kind would be a power with reference to a local object within the meaning of sub-section 16. A nmnicii)a1 i)rohil)ition to take effect vnthin the limits of a municipality may be a local sul)ject within the meaning of sub-section 1(\, when a general prohibition of all imports would not be local. Mr. Newcombe- morning. -I was endeavouring to urge that this Lard Watson — There are considerations affecting the one that do not affect the other. 8u])posing a man in Quebec or Lower Canada sends a (piantity of s})irits en route to Manitoba, and in Manitoba it is not allowed. Would that be a provincial matter, the stoi)page oi spirits not intended to stop in the Provin^*t' and not intended to be consumed there ? At preset)! it does 3iot appear to me it would be a i)rovincial matter, it nuiy !v a provincial matter to the man affected in Quebec . Mr. Newcombe — And the position I was endeavouring to explam is this : if the Dominion may levy a Customs' Duty and the Dominion establishes a customs' law, it cannot be contended that the Province, by j)rohibiting the imi)ortation of the article on which the Dominion has declared there shall be collected a Customs' Duty, can thereby repeal the Dominion Statute. Then we have an article im|)orted into Canada which is illegally brought in, but upon which a tax is legally ij_«S! ' li Pi ■f . ... ,tl 182 Jjlqiior Proliihilimi .\j>i>cii}, 1805. M.' \ levied. I submit, my Lords, that is an incongruons construc- tion of the constitution. Ui)Gn this point I wouhl refer your Lordships to the case of Uiijnui v. 'ihc Justices of Kiiiijs, in the Supreme Court of New Brunswick, rejjorted in 2 Cartwright at i)age 4*.)'.), and i)articuhirly to the remarks of Chief Justice Ritchie on page 505. This is a decision of the Supr(>me Covn*t of New Urunswick at the time when Chief Justice Ritchie was Chief Justice there. He afterwards became Chief Justice of the Supreme (!ourt of Canada, and if your Lordships will permit me, 1 will read a few words — his Lordship said : — " To till' Doiiiinion rurliaiuont of Canadii is given tho powtT to legislate exclusively on 'the regulation of trade and commerce' and the power of ' raising money hy any mode or system of taxation.' The regulation of trade and connnerce must involve full power over the matter to be regulated, and must lU'cessarily exclude the interference of all other bodies that would atten)pt to inteinieddle with the same thing. The power thus given to the Dominion Parliament is general without limitation or restriction, and tlierefore nuist include traffic in articles of mtrcliandise, not only in comiectitm with foreign countries, but also that which is internal between ditTerent provinces of the Domir.ion, as well as that which is carried on within the limits of an individual Province. As a matter of trade and commerce the right to sell is inf.eparably connected with the law permitting importation. If, then, the Dominion Parliament authorise tiie imi)ortation of any article of merciumdise into the Dominion, and' phices no restriction on its beirg dealt with in the due course of trade and eommerce, or on its consumption, but exacts and receives duties thereon on such importation, it would be in direct conllict with such legislation and with tlio riglit to raise money by any mode or system of taxation if the local Legisla- ture of the Province into wliich the article was so legally imported, and on which a I'cvenue was sought to be raised, could so legislate as to prohibit its being l)Ought or sold and to prevent ti-ade or traffic therein, and thus destroy its connnercial value, and with it all trade and commerce in the article so prohibited, and thus render it practically valueless as an article of connnerce on which a revenue could be levied. Again, how can the local Legislature prohibit or authorise the tSessions to pro- hibit (by arl)itrarily refusing to grant any licenses) the sale of spirituous li(pu)rs of all kinds without coming in direct conflict with the I)ominion Legislature on the subject of inland revenue, involving the right of jnanufdcturing and distilling or making of spirits. &.C., as regulated by the Act 81 \kt., c. H, and the subsequent Acts in amendment thereof, and the excise duties leviable theri'by, and the licenses authorised to be granted thereunder. ' ' This is the case in which the Supreme Court of New Brunswick decided thiit a Province had not the right to prohibit as arising under a Statute which provided that no hy,. Li(l learned Chief Justic(» as to tiie subject falling within trade and connnerce, because in Itiisscll v. 'I'hr (Jiiei'ii, while your liordsliips came to a conclusion favourable to Dominion jurisdiction by a process of excluding the U>gislative authority from section ',)"i, yet it is stated in that case that no dissent is intimated from the Judgment of the Chief Justice of Canada in which he, having regarded the subject from the standpoint of Dominion authority, had come to the conclusion il m 5 184 JjKliKir I'roliiliitiiiii Ajtjudl, 181)5. that thf snlijoct is within the re<,Mil!iti()ii of tni(l«' luid coiiinieice. Ijord Heusciikli, — T dnrc sav that thev do not dissent, hnt that is not saying' they assent. Mr. Newcomuk — I was merely sayinjj; tliat that jjoint is open, and that therefore T am entith'd consistently with the decisions of tiiis Board to rely upon what was stated in those two cases. Lord Watson — We are always inclined to stand on what is the main suhstance of the Act in determininf^ under which of these ])rovisions it really falls. That nnist he determined .■Mfiiudtini siihjrrtdui nuitcridin accordiiif^ to the purpose of the Statute as that can he collected from its leadinj^ ena(;tnients. When a legislature proceeds to enact that not less than a certain ([uantity of liquor shall ever ])e sold retail, what is the ohject of it ? Is it for the physical henelit of the population that they are legislating ? Is it hecause small (piantities should not in their opinion he sold to any one that wants a drink ? Or is it hecause they want to regulate the trade ? Mr, Newcombe — If in fact it is a regulation of trade ; hut if in effect it is a prohihition of trade having regard to all the circumstanc(>s, and if it practically prevents the trade from htving carried (m, then it seems to me, assuming your Lordships are going to put a construction on the words " trade and commerce," which would throw the suhject of regulation Jjord Watson — This legislation derives its vigour as much from the initial part of section 1)1 as from suh-section "2. Mr. Newcombe — If it derives anything from suh-section '2 it must he excluded from section 1)2. Ijord Watson — They are simply introduced for the j)urpos(^ of further specification hut they are all contained in the first part of the section. Mr. Newcombe — They are all contained in the first part. Lord Watson — They are legislative charters to pass laws to the following effect. I Liiliinr I'liildhitioll Jpptiil, lHU/5. Lsr) ( Tiord HKHsniKLL— Yon iirc vi^ht in this, tluit if yon conltl hrin^ it witliin snl)-s('('ti<)n 2 tlicn it is cxc'lndcd from local matters niuler snl)-S(>ction Hi. Mr. Nkwc'ombe — 1 snbniit if 1 hnvctoi^o to snh-soction *2 at all to draw it witliin the Doniinioi? antlioritv, if it is necessary to invoke No. 2, then it cannot he within Ki or any Provincial ])ower. lioni) Watson — T (jnite admit it is a material part of your arj^nment to hrinj^ it within snh-section '2. Mr. Nkwcombk — 1 cjuite admit the difticnlty of that undertaking, hut I suhmit that the legislation does come within No. 2, and 1 sul)mit that if in effect we have legislation which regulates a trade generally or which affects a trade generally to the extent of destroying a trade hy such legislation as might he passed Lord Watson — We are not dealing here with any legislation, and we have no fact before us to start from as to legislation. Mr. Newcombe — I admit that. Lord Watson — All these suggestions as tiO what the Dominion Legislature might do are mere speculations. We are indulging in s})eculation in ])ossil)le facts with the view of trying to illustrate the meaning of these two clauses in this Act. The Dominion Legislature have not passed any legislation. Lord Hehschell — You say you are entitled to show it is legislation within trade and connnerce, and that they alone could legislate ? Mr. Newcombe — Yes ; because the aspect of all these (juestions is i)rohibition. That is the (piestion referred— the ])roliibition of trade. While the Dominion Parliament is given the right to regulate trade and commerce, it is inconsistent, I submit, with that, that the Province should prohibit a trade. If they prohibit a trade they take away that which the Dominion is to reij;ulate. ''$:i ■ li' Lord Hehschell — There is nothing left to regulate. ^ ^^. ^ n2a .o.,\^ IMAGE EVALUATION TEST TARGET (MT-3) '/ // ^,/ 7 i\? '/ /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 mmmim "^ 186 Liquor ProhihUion Appeal, 1805. Mr. Newcombe — No ; there is nothing left to reguhite. Lord Herschell — That would be true if they prohibited all trades, but it does not follow that they cannot prohibit one. Mr. Newcombe — It is only by a process of exclusion ; you would have to draw the line somewhere. Lord Watson — It would be regulating a trade if they regulated an import trade which conflicted with home pro- duction. If, in the interest of the home producer and his trade in Canada, they were to prohibit the importation of an article which he manufactures, into Canada, would not that be regulating trade ? Mr. Newcombe — I should think so ; but my point is this — tnat the effect of legislation which the Province could pass (if your Lordshi^js were to give an affirmative answer to these questions as to prohibition), under the general affirmation of })ower in the Province to do these things, would be to interfere with the Dominion authority to regulate trade and commerce. I submit, my Lords, that this is the way in which these questions should be regarded. They are put categorically for the purpose of getting an affirmative answer. Lord Watson — Assuming this would be a regulation of trade, the next question is whether the extent of power given by sub-section 2 is such as to exclude anything in the nature of regulation of trade which is enacted for merely local purposes by the Provincial Legislature, or whether a mere general regulation of trade is not contemplated by sub- section 2, Mr. Newcombe — That enquiry would oi ly affect the seventh cpiestion. Lord Watson — That is the next question to consider in the line of argument you have pursued. Mr. Newcombe— Supi)Osing I have succeeded hitherto, it would involve a negative answer to each of the (irst six questions. It is the seventh question that contemplates that state of things. 1 Liqnur Prohihition Appt'dl, 1895. 187 Lord Watson — I do not think the language yon have got — assuming you are right as far as you have gone — warrants a favourahle answer to the question when you consider the next point. Mr. Newcombe- to deal with that. -I have tried — I fear unsuccessfully — Lord Watson — If you are content to intimate that it is immaterial to your argument, I will not discuss it with you any further. Mr. Newcombe — I admit we have to deal with that question of prohibition in the locality. Lord Morris — Are you dealing with Clause 1 now ? Mr. Newcombe — I am dealing generally with all. Lord Hbrschell — You are dealing with them altogether. If you bring it within trade and connnerce you get rid of them all. Mr. Newcombe — Yes. Lord Herschell— If you bring it within trade and commerce in the sense which excludes any Provincial legis- lation, then that answers all the questions. Mr. Newcombe— Yes, my Lord. Now, I submit on that [)oint that the exercise of Provincial authority as to regulation or whatever authority it may have with reference to trade must necessarily stop at the point of conflict between Dominion legislation and Provincial legislation. The power to prohibit sale, I submit, would necessarily imply the power to prohibit importation. The two go together. They cannot be separated as a trade problem — as a matter of trade and commerce. Lord Herschell — I do not think you need labour that. Whoever cannot prohibit sale a fovliovi cannot prohibit impor- tation. If you prove that the Province cannot prohibit sale, it cannot prohibit importation. You need not labour that. Mr. New<'ombe — No, my Lord. Then look at section 132 of the British North America Act which I have referred to, m ^^i^mi^^mm '•JHW^IP'" «Wff 188 Li(imr I'rohihition Appeal , J 895. which gives the Dominion Government power to give effect to trade ohHgations between the Empire and Foreign Countries. The subject of trade and commerce and the matter of the interchange of goods and commodities is a subject which frequently is regulated by treaty. Lord Watson — It simply enacts that the Dominion Government shall be the representative of tlie State in all questions as to relations with Foreign Countries. Mr. Newcombe — Then, my Lord, a treaty is made between Great Britain and France providing for the im- portation of wine into Canada. Lord Herschell — Thai it shall he admitted at certain duties ; you have a strong case as to importation ; I should think you might leave that. Mr. Newcombe — Does not it follow, if importation, then sale '? Lord Herschell — Not at all, because all those grounds you are speaking of are wholly inapplicable to sale. The importation affects the whole Dominion of Canada. To allow a Municipality to put fetters on the sale of something in a particular district is one thing. You might as well say because we have wine treaties here with France we could not pass a Local Option Bill, or a Local Veto Bill. That is exactly the same point. A good many people have been opposed to the Local Veto Bill, but that is not a point which has ever yet been taken, and I should not think it is a very hopeful one. Lord Watson — You might as well say that importation into the Thames is a local question for London only. Mr. Newcombe — It would seem to go this far — that if The Queen v. Jtussell has not already gone that far, the result of that consideration would seem to be that a Province could not prohibit generally for itself, I submit. Lord Watson — If it was shewn it was not a matter per- taining to the Province, prima facie on the face of section 92 the Provincial Legislature would have no power to deal with it. Lord Morris —The way it strikes me is that the tirsi Liqvor Prohibition Appeal, 1895. 189 question implies that the Province would have the power of prohihiting the trade of a puhlican hecause it conld prohihit the only way he could exercise the sale of his intoxicating drink. Is that consistent with suh-section 2 of section 91 which gives the legislation as to trade to the Dominion ? It abolishes the trade of a puhlican. Mr. Newcombe — Then it in effect abolishes the whole trade. Lord Morris — It abolishes the trade of a publican if he cannot sell or carry on. Mr. Newcombe — It abolishes the trade of the importer and the manufacturer also, because they are deprived of the means of getting their connnodity to the consumer which is necessary for the effective carrying on of all trade. Lord Morris— The license is only applicable to the individual that is refused ; but if they r'^fused all licenses it would amount to the same thing. Lord Herschell — My difficulty of course is that you may affect trade just as much by limiting it to licensed people and making your qualifications for a license as tight as you may do, as by prohibiting sale. In the one case you hit a few people and in the other many. Each of them regulates trade, and this Board has held in Ho Anne, c. 11), and as the.sc words have heen used in Acts of State relating to trade and com- merce ; Article /> of the Act of Union enacted that all the subjects of the United Kingdom should have 'full freedom and intercourse of trade and navigation ' to and from all places in the United Kingdom and the Colonies ; and Article 6 enacted that all parts of the United Kingdom, from and after the Union, should be under the same ' prohibitions, restrictions and regulations of trade.' Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only, without its being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two Kingdoms. So with regard to Acts relating to bankruptcy and various othei- matters. Construing, therefore, the words ' regulatiiii. of Iv, .ul connnerce ' by the various aids to their interpretation above suggested, they would include political arrange- ments in regard to trade requiring the sanction of Parliament ; regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion Parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legishition the contracts of a particular business or trade, such as the business of Fire Insurance, in a single Province, and therefore that its legislative authority does not in the present case :! m '- . 'tn 104 L'niuur Prohibition Appeal, 1896. i conflict or compete with the power over property and civil rights assigned to the Legislature of Ontario by No. 18 of Section 92." Those wore the remarkn of the Judicial Committee in the case of 77/^' Cidzi'^is Jmunnicr. Com}miuj\. /'arsons, and I ohserve that in a much later case of The Dank of Toronto v. Lanibe (which is reported in V2, App. Cas. 675 and the 4th Cart- wright page 21) there is this statement Lord Herschell — That case you have already referred us to. Mr. Newcombe — I think my learned friend called your Lordships attention to that, hut I am going to refer to the same passage that he did for the purpose of showing what my point is upon it. It was said there : — " The words ' regulation of Trade and Commerce' are indeed very wide, and in Seirrn'n case, it was the view of the Supreme Court that they operated to invalidate the licen.se duty which was there in question. But since that case was decided, the question has been more completely sifted before the Committee in J^arsom' case, and it was found absolutely necessary that the literal meaning of the words should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures." Now as Till' Citizens Insurance Compunij v. Parsons is interpreted and explained hy the case of The Bank of Toronto v, Lambe, it only affects the point with which I am dealing to this extent that it is necessary to limit and restrict (to what degree is not decided) the interpretation of the words " regulation of trade and commerce " in order to afford scope for the powers which are given exclusively to Provincial Legislatures. Here the power is not given exclusively to the Provincial Legislature. Lord Watson — The Judgment which was delivered by Lord Hobhouse contains some points which are of very great importance, and in Parsons' case a similar question arose. One question that ought to be raised and considered in this case is how far sub-section '2 of 91, and sub-section 10 of 92 ought to be read together. There is a very marked illustration of that in Parsons' case, as to whether one sub-section of 91 gives a general power of raising taxation by any means. There is a sub-section in 92 which gives to the Province direct taxation. It was held that although the sub-section of 91 read by itself was wide enough to include the power of I.itjuor I'mliihilinu Api>*'nly 1805. \\)h both sub-sections, yet I'oiistruiji;,' the ono in the li;,'bt of tho otlior it is said it is evident that it is not intended to include dire(tt taxation within the Provii -e in the previous sub- section. fjord Davey — Botli parties may have the |)()vver of (Urect taxation. Lord Watson— His Lordship said : — " Then is thore anythiiiij in section 91 which operatoH to rowtrict thn ni"aniiij,' above iiscrihi'd to section !)2 ■? Chiss H certainly is in literal conriict with it. It is impossible to <^ive exchi .ively to the Dominion thfi whole subject of raising moiu^y by any mode of taxation, and at the same time to give to the Provincial Legislatures, excliisivi'ly, or at all the power of direct taxation for provincial or any other purposes. This very conflict between the two sections was noticed by way of illustration in the case of I'aistins." Th(ui he (juotes what their Lordsliips said. Lord Hkhschkll — In that case if yon found anything erunnerated in 92 the Provincial Ije<,'islature had it even althouf^h there may be somethini^ in *.)1 which in wide terms would include it, l)ut at the end of Ul there is a provision which only applies to item 1() in 1)"2, and tiiat provision is that you camiot ^et in uncU'r those words " local and private nature" anythin ions : i m m '1 o2 ^•^ «PWIW ■PMV^i !<.)() Liquor I'rnhihition Appeal, 1895. I of trade and commerce related to regulations of intca'-provincial trade, or trade of the Dominion with outside nations ? Mr. Nkwcombk — I submit that it must have a lar^^er scope than that. Lord Davey — What do you say it means ? Lord Morris — I do not know how you can define it more than what it says. , Ijord Davey — Are you )»repared to carry it so far as to say that whenever any enactment touches trade and commerce, and in any way interferes with or affects urade and connnerce, that that would he iltt-a vurs of the Provincial fjegislature ? Mr. NEWt!0MRE — That is a very broad proposition. Lord Herhchell — You can hardly go so far without saying that Hoilfif v. The (Jueeii was wrong, hecaus< no one can say that that particular trade was not most materially affected l>y the fetters imposed. The Lord Chancellor — You do not use such a word as " affected." The truth is yon cannot give any effect to such a word without saying that the whole region of thought is excluded from legislation if you use that word. It affects it if it touches it at all. Tjord Herschell — ('ould you deny that that Act which was in question in Hoihje v. The (^iieeti did regulate the trade of licensed vitnalling or selling spirits within the Province of Ontario ? It prescribed conditions under which alone it could be carried on. Is not that regulating ? Mr. Newcombe — It regulated it by means of the exercise of police powers. Lord Herschell — You may call it a police power, but it determined it. That was the purpose and object of doing it — not what was done. What was done was to regulate and prescribe the conditions under which alone it could be carried on. Mr. Newcombe — Perhaps I could make myself clear by this illustration. Suppose instead of intoxicating liquors it Liquor Pioliibitio i Apjual, 185)5. 107 hud l)oen f^roct^rieH or dry f^(v)ds, or Honictliinj^ tlitit was not Imriiifnl to the commnnity. I snl)init tlnit tlx' (Icrisioii docs not involve that the I'roviu.-c should pass a similar lict'nse hiw as to dealing,' in sugar fv)r instance. Lord MouiiiH — Or Hoi r ? Mr. Nkwcomhk — Or tour. Lord Davkv — If you say that >' o. J)Mninion has an exclusive rcf^ulation of tin trade anU conMner.c, if it did r')<:;aldte trade and connnercn it nniy have \hhhi within it. Mr. NK\V(!OMin<; -That is an illu..tration of what your Lordshi[)s have laid down ahoi.t a matter having two aspects and two purposes. Lord Hkuschkli, — -You may achnit it has two aspects, whether it is fiour or anything else. The Loan Chanckm.ou — I do not (piite understand what you mean hy a distincttion hetween spiiituons liipiors and Hour. What is the difference ? Mr. Nkwcombe — I was dealing with the case of UiKh/r v. 'I'lir (Jurru, in which it was held that that Statute which dealt with the sale of intoxicating licpior in the way of putting reatrictions on it The Loud (^hanckllou — "Intoxicating h(pior " is a phrase which has heen often quarrelled with. What is the difference hetween liquor in the category of trade and commerce and innocent flour ? Lord Davey — Or tohacco ? Lord Watson — Or milk or soda water? The Lord Chancellor — I thought you said there was a difference. liord Morris — There is a police regulation everywhere as regards the sale of intoxicating licpiors. The Lord Chancellor — I am not aware that there is. ■4' ■^1. fe ^^y W^ i Lord Morris — I think so. 108 Lltjiior Pniliihltimi Appeal, 1895. '■i Mr. Newoombe — Their Lordships decided in H(nl{/('. v. 'Hk' Queen that under 8, or under 15, or under 1(3 — Lord Hehschell — Not under each of those separate or alone. To my mind, unless it came under 1(5 it could not have come under 8 or under 15 ; 15 cannot stand hy itself, because 15 is only imposing penalties for the purpose of any of thv- things remitted to the Province. Therefore it could not have come under 15. The Lord Chancellor — IVfore you go to Hodfic v. The (^uct'u would you kindly tell me what is the ditlerence in your view between flour and li(}Uor ? Mr. Newcombe — This is the i)oint I was endeavouring to make about it under these sub-sections of section 1)2 in Hodiji' V. The Queen. The Lord (;HANCellor — Please try to forget Hoihje v. 'Lite Queen. Mr. Newcombe — It is with reference to Ifothje v. The (Jueen that I make the distinction. If your Lordship excludes that I cannot distinguish it. The Lord Chancellor — Do you say thxhje v. 'I'lie (Jueen has raised a distinction between those two subjects ? Mr. Newcombe— I base the distinction n})on Hod(je v. 'I'lie Queen — that is, that Hodge v. The Queen upheld the power of the Provincial Legislature to regulate the trade in the way of restricting and imposing conditions in the exercise of police powers which were conferred for the good of the connnunity generally, under the several sub-heads to which his Lordship has referred. Lord Morris — They expressly held, which is the im- portant part of it, that a regulation of that kind was not a regulation within the meaning of sub-section 2. Mr. Newcombe — That it was the regulation of a trade which was, or in the view of many i)eople is, held to be harmful, noxious and dangerous to the community. Lord Herschell — Inasmuch as we have here to deal with this verv trade if this Board differentiated it from all Liquor Prohibition Appeal, 1895. 199 others why cannot we now put all others aside and deal with it. Mr. Newcombk — Very likely. I was endeavouring to answer his Lordship the Lord (chancellor when he asked me to distinguish between flour and licpior. Lord Herschell — You introduced it. If it is not regulating trade within the meaning of sub-section 2 of 91 to put twenty fetters on it, does it become so if you put twenty more ? Mr. Newcombe — If you go to the extent of prohibition I submit, yes. Lord Herschell — Why is one regulating more than the other ? Mr. Newcombe — Because it is destroying that which is to be legislated about. Lord Herschell — I could have understood an argument that prohibition was not regulating while that of fetters was ; but I do not understand an argument which says that you may fetter it by one fetter after another and prescribe one condition after another of its being carried on, that that is not regulating the trade, but if you say it is not to be carried on at all that is regulating the trade. The converse I could understand but not that. Lord Watson — That is to say it begins to come within the clause when it ceases to be a regulation. Lord Davey — One must give some meaning to the words "trade and commerce" which is consistent with the fact of the provincial legislature's having certainly the right to fetter and I should say to make regulations prescribing the con- ditions under which trade nnist be carried on, not only because the Board so decided in Hodijc v. 'llw (Jitirii, but because I find, among other things, power to recpiire them to take out licenses, true only for revenue purposes, but still that is a fetter on a person carrying on a trade, that he cannot do so without paying a certain sum for a license. That is a fetter and a regulation. \M s mm P^^fPiPPIilVil 200 Liquor ProJdbitlon Appeal, 1895. i Lord Watson — The difficulty I find raised is a difficulty that arises in other cases. That case determines what in a general sense constitutes regulations of a trade ; that you cannot say that imposing fetters and conditions on the way in which it was to be carried on which affected the trade and the mode of carrying it on are not regulations of a trade within the meaning of sub-section 2 ; and that at once raises a question where does the distinction begin between that kind of regulation and that which is to be taken to be regulation within the meaning of sub-section 2. You put it (I cannot follow the argument) that whenever it becomes prohibition you are within sub-section 2. To my mind yon are out of sub-section 2 when you get a prohibition. You have no longer a regulation when you have got the length of i)rolii- bition. It is for these reasons that I cannot follow the line of argument. Mr. Newcombe — Hub-section 2 is general, and in the regulation of trade and commerce as a general subject it would be competent to prohibit a i)articular trade while under a provision authorising the regulation of a particular trade they could not prohibit it. Lord Watson — That expression was used in Parsons' cacc. I am not sure it was a very happy one, but it is apt to be misused, and it is ai)t to mislead. It is not general as including all particulars, but it is general as distinguished from certain particulars. The decision is that certain par- iculars would be general if you were to read the word in all its general senses, but you may make certain conditions general in a sense if they apply to all trades. At the present moment I am not prepared to say what the proi)er definition of that is, or what was i)recisely meant, but it certainly was intended to suggest this, that while special regulations might be made by the Dominion Parliament the function of the Supreme Parliament was to enact regulations of a more general descrijjtion. It is very difficult to define it. Mr. Newcombe — I submit that the case of 'I'lir Bank of Ontario v. Jjamhc is an authority for confining the decision in the Citi~rns Insuramr ('onipaiiji v. Parsons to something which would not interfere with my argument in this case, ^>^m,< .^f piHUpiii*! * Lifjuoi: Prohibition Appeal, 1895. aoi because it is established that this is not a case in which the Province lias exclusive authority. Noav, leaving the subject of trade and connnerce, I submit that, however this question might be regarded if the Dominion had not legislated upon the subject, by the enactment of the Canada Temperance Act we have occupied the field of legislation, and that there is no room for Provincial enactment upon the subject. In other words, the Provincial Legislature are })recluded from interfering with prohibitory legislation imisnnich as such interference would affect the Dominion Statute. Lord Watson — I suppose yon read the provisions of that Act as being directly restrictive and as giving a license to sell freely in those localities where it has not been adopted ? Mr. Newcombe — Yes, my Lord. Lord Watson — Do you read that as ex})ressing both these things ? Mr. Newcombe— I think so. Lord Hehschell — I think you must. The LoHD Chancellor — I think so. Lord Watson — The field is not occupied unless that is so. Mr. Newcombe — The field must be occupied consistently with the Judgment in UuH.sdl v. The Que.en. Lord Watson— It has no effect excei)t in those regions where it has been adopted. Outside these locahties it is not operative and not intended to be operative, in fact there is no law applicable to them, but there is a law ap})licable to them if you read that as a law dispensing with all restrictions. I siiould think it was almost necessary to your argument to read it in that way. If you say the field is occupied, it must be in that sense. Lord Davey— What you mean, I presume, is this, that assuming for a moment that there is in one sense a concurrent line of legislation, if the Dominion has legislated on the subje<'^, then the Dominion Legislation is i»aramount over any Provi oial Legislation. • -• W him ill I "if Sri if! I" ■^^""^BOWPW" 202 Liquor Prohibition Appeal, 1896. Mr. Nbwcombe — Yes, we have dealt with the mibject and it must prevail. Lord Watson — If anybody was to go to a part of Canada where the Temperance Law has not been adopted, would it be true to say that there was any Statute law applicable to that place until it had been adopted '? Would it not be more correct to say that there was no law as yet applicable ? Mr. Newcombe — There is legislation which it is open to the community to bring into force. Lord Herschell — Supposing that this is not within 91 and 92 at present, but it is legislation which the Parliament of Canada had power to ( iiact by virtue of the provisions for peace, order and good government of Canada, and if they thought with a view to the benefit of the whole community of the Dominion that this legislation was sufficient, what would there be in that inconsistent with a particular Province coming to the conclusion that in its particular case some other legislation in respect of liquor, further legislation owing to its local circumstances was necessary and desirable ? Supposing that apart from the Dominion Legislation, which is again the hypothesis, it would be competent for it so to enact under 16, and supposing it was therefore within its legislative power ? I do not quite follow you. Mr. Newcombe — The idea of uniformity Lord Herschell — The hypothesis on which you are going is this : that it was within the legislative power of the Provincial Legislature notwithstanding that it was within the power of the Dominion Parliament to legislate for the whole community as it thought necessary with reference to liquor. Of course that v/ould prevent the Provincial Legisla- ture from interfering in any way with the legislation of the Dominion, but why should it prevent it exercising its existing legislative competence in a manner not so inconsistent, which would not in any way interfere, but which might remain side by side and be operative as well as the Dominion Legislation ? Lord Watson — Does not that depend to some extent on y^^' ' ■ m Liquor Prohihitioii AppcuU 1805. 208 whether the power of the Dominion Parliament is derived from sub- section 2 ? Lord Heu8(jhei-l — I am asking tlie learned Comisel to assume it is not within the suh-section 2. If it is within sub-section 2, the Provincial Legislature could not do it at all ; therefore, for your })resent purpose — saying that the field has been occupied — you assume that the Provincial Legislature could do it, and you assume therefore that the law is against you as regards its being within sub-section 2. You are then driven to assume it to be within 5)1 — 1. Then I put it to you, in such a case, what is there to prevent the Legislature of the Province legislating for the Province on the same subject as the Dominion Parliament has legislated upon it, but in a manner not inconsistent with it, and in a manner confined to that Province ? Ah'. Newcombi; -Because that would produce that state of inequality which it was the object of the Canada Tem- perance Act to overcome ? Lord Herschell — This Board, in ItmscH v. 'Hie Queen, did not decide it on the ground that it was intended to over- come that at all, but that it was intended to deal with the question of temperance to that extent, at all events, as a matter in which the whole Dominion was interested, and not merely any particular Province. That is what liusarll v. The Qiieeii said. . . Lord Watson — I do not quite understand how far you carry that idea of e(juality and inequality. Do you say where there is an Act passed for the benefit of the Province under the first rule of the section, the Dominion Parliament must enact equally the same rule over all Provinces. If so, it raises rather an argument against you, because it would come to this, that the Dominion Parliament — the paramount Parliament — although they were satisfied that a particular locality and a particular Province required special treatment and special provisions to be made for its welfare, yet they would be absolutely helpless to do so ; and tliis curious result would follow if that is the right result — that they being unable to do it, and it not being given according to your argument to the Provincial Legislature, that power to enact :*";« '■■•-.m m Hi m 4 141 (J '!ih 204 Liquor Prohibition Appcol, 1895. this piece of legislation has been kept out of the British North America Act by the Iini)erial Parliament here. Mr. Newcombe — My argument involves, I think, the opposite to that. Lord Watson — It may he that I am pressing that a little too far, because it may be possible that in passing an Act having a similar view and intended to produce the same state of things throughout all the Dominion of Canada, that there may be power (I am not prepared to negative the i)ro- position) to adapt this means to the circumstance of any particular Province. I have heard the other [)oint put as if it was an iron rule. I am not altogether satisfied that that must be so. Mr. Newcombe- — I am arguing from Hiissrll v. Thr Qwen. 80 far as the point your Lordship makes is concerned, I would concede this as a matter of illustration : Sujiposing it was admittedly desirable that there should be a bankruptcy and insolvency law for the Province of Ontario, and none for the rest of Canada — sup})osing that was desirable for the peace, order aiul good govermnent of Canada, I should have thought that the Dominion Parlianient could give effect to such a law. Either it must be so, or else that \:- a question which does not admit of solution in C'anada. I think all the authority which was previously vested in the Provinces must have been distributed. -.'.,% Lord Herschell — That is a case in which clearly the Province could not legislate for itself. It may very well be that the Province who desired legislation could only get it through the Dominion Parliament, and it does not follow that it can only get it at the expense of all the other colonists who do not want it. Lord Watson — They have no power to effect bankrujjtcy except in their power to -^.ml with civil rights, and we have very rece'.tly held that they may exercise that power so long as there is no bankruptcy system with which the enact- ment comes into collision. Mr. Newcombe — So far as it is property and civil rights as distinguished from bankruptcy. - ■ ■. ■> :;>..... Liquor Prohibition Appeal, 1895. 205 Lord Wathon — They are ubsolutely exclnded from lef^islatin<^ in bankruptcy, and they are not ahsohitely excluded from legislating in local matters. Mr. Newcombe — I thought my proposition involved this, that as to any subject as to which legislative authority is exclusively conferred upon Canada, Canada might limit the o})eration of its legislation upon that subject to the })articular part of its territory. But the decision in Itussi'll V. Thr (Jucm L. R. 7 App. Cas. at page 841, proceeds on the point of uniformity: — . , " The declared object of Parliament in piissinfj; the Act is that there should be uniform legislation in all the Provinces respecting the traffic in intoxicating li(juors with a vitw to promote temperance in the Dominion." That assumes this, that the Dominion Parliament has considered this matter and come to the conclusion, that for the })eace, order and good government of Canada it is necessary that there should be uniform legislation in order to promote temperance. They have effected a uniform system. Lord Herschell — Anything less like a uniform system than a system to be adoi)ted or not at the will of a particular part of the Dominion I cannot conceive. If that was necessary for the Judgtnent in Ihissell v. Tlif Queen, I should be in doubt whether the Judgment in Russell v. The Queen is right. ,■ ' ■. I ^ Mr. Newcombe — " Parliament does not treat the promotion of temperance as desirable in one Province more than in another." Lord Herschell — Quite so — the promotion of temper- ance, but what they meant by a uniform system was that they should have a system capable of application to every part of the Dominion as distinguished from treating temperance as a matter solely to be confined to each Province. Lord Davey— iThis is how Mr. Justice Sedgewick (at }). 105) states it : — " The Federal Parliament has already seized itself of jurisdiction. It has passed the Scott Act. It -has prescribed the method by which in Canada prohibition may be secured ; and is not any local enactment ■:a 1% A, w '.;*■ 206 Liquor Prohihitioii Apjuuil, 1895. purporting to ch(in<»o that niuthod or otherwise secure the desired end for the tune heing inoperative, overridden hy the expression of the controlHng legislative will ? " That is the argument you adopt. Mr. Nkwcombe— Yes, my Lord, I adcjit that. " The objects and scope of the legislation are still general, namely, to promote temperance by means of a uniform law throughout the Dominion." That Ih another extract from the Judgment in Hussdl v. 'I'hr (Jio'cii at }). 841. My underHtandin<^ of this Judgment was that it did depend upon uniformity of tlie hiw, hecause it is HO referred to a good many times in the Judgment. Lord Herschell — Uniformity of tiie law would not necessarily promote temperance hetter, if side hy side with the existence of that law, there was in a particular Province a law still more stringent, always su})posing that stringent legislation promotes temperance. Their ohject which is said to be temperance would not he advanced hy that. They may have gone as far as they thought public ()i)inion would render it possible for them to go, but if in the Dominion public opinion would })romote something even further, what is there to conflict with the Dominion Act or its operation ? It is all working to the same end. Mr. Newcombe— If the Legislatures can supplement this system or can enact prohibition, then you have them defeating that which was the declared object of Parliament. Lord Herschell — This seems to me sometimes a little apart from the assumption. The assumi)tion is that this is a matter within the })ower of the Provincial Legislature ; it was down to the date of the Canada Temperance Act. You have to show that that i)ower is gone. Can it be gone by anything but a law of the Dominion which would make their enactment inconsistent with it. If the two could oi)erate side by side without any conflict of the one with the other how can their legislative power have been taken away by Canada passing that Act ? Lord Watson — If the intention of the legislature was to keep a man sober, in this sense never to let him get more than half drunk, would their intention be defeated bv someone Liquor Prohibition Appeal, 1896. 207 keeping him sober ? Is not that the question we are asked to consider ? Lord Davey — I suppose you would say that the Canada Temperance Act is in a sense permissive because it permits the sale of sacramental wines (I take that because it comes first) or medicine. A man may be convicted in a county which has adopted the Canada Temperance Act which allows the sale for medicinal purposes, l)ut here there is a^i Act prohibiting the sale altogether. Lord Herschell — Where it is once adopted in a place it is law there and your Act would absolutely conflict ; the one would allow something which the other prohibited. The Lord (Chancellor — The Canadian Act would be paramount. Lord Herschell — The Canadian Act would be paramount. I take it you could not legislate in a Province so as to conflict with an intra vires Dominion Act. Mr. Newcombe — No. Lord Morris — It deals with the subject, and it deals with the subject of prohibition in a particular way, and is it not to be fairly argued that that is the only way in which prohibition is to be carried out ? Lord Herschell — What should you say as to my illustration which was put in one of the cases. The Provincial Legislature has full power, we will suppose, to legislate with reference to the carrying of firearms, I suppose it is difficult to imagine it has not. For the order and good government of the Dominion there is an Act passed putting certain restrictions on firearms which would apply to the whole. Clearly they would have a right to do it for the order and good government. They have occupied the field in that sense. But in a particular Province the state of affairs in that Province renders it necessary for them to go further, and the Dominion Parliament has made a law saying that no one in the Dominion shall carry firearms at night. But the state of the Province is such that the Provincial Legislature considers it necessary to provide that nobody shall carry firearms in the v.''! )-* J ■■ wmmn 208 Liquor I'rohihition Appeal, 1895. (lay time or poHsesH them. Under those circnmstanceH would there he auythiiif^ to take away their ))ower to pass that Act which they liad l)efore, hecanse the Dominion Parhament had dealt with the suhject in that more limited way ? Yonr proposition goes a long way. Mr. N?:wcoMBE — Perhaj)H so my luord. ■Jihe Lord Chancellor — Tf yon could reverse the hypothesis put to you and say that the Dominion Parliament prohihited the use of firearms generally, hut the circumstances of the i)articular Province rendered it essential to the protection of everyhody that they should carry firearms, I am afraid the Dominion Parliament, notwithstanding the necessity which is hy the hypothesis put to you, would have had power to prohihit the use of arms altogether, and the Provincial Legislature would have no power to say what was necessary for the purpose of defence. Lord Herschell — I suppose that it is clear that, even in a matter within their province, if it is also within the province of the Dominion the Provincial Law would have to give way. Mr. Newcombe — Yes. Lord Herschell — But the question is whether it may *not supplement ; which is a different question. Lord Morris — If it deals with the suhject at all, is it not conflicting ? The Lord Chancellor — If it is supposed to he exhaustive, of course, then it would he conflicting. If it enacts that this shall he the only law for the Province. Lord Watson — If it stated in positive terms that in those districts where the law had not heen adojjted every man who had got a licoise should he at liherty to sell without restriction or in any quantities. The Lord Chancellor — I should go a little further than that, I think. If the law made hy the Dominion was supposed to occupy the field in the sense of occupying it exclusively the Province can have no power. l.iilitDf I'ltiliihilioii Ajijtiitl, 181)5. 200 Tjord Watson — That Ic^'isliitioii l)einjj[witliiii their power. fjord Hkhschkm, — If they have U^ft the matter alom^ where it has not heeii a(h)i)te(l, they have said <»veryl)0(ly sliall be free to sell H(inor anyiiow. If that is the total meaning,' of it I do not see how llailijc v. T.ic (Jinrii conld l»i' arrived at, if they have occupied it in that sense by the Canadii Temperance Act. ^ Mr. Newcombk — My present point involves, of course, the proposition that the subject is within sectiori <.)2, and would renniin there but for the exercise of the Dominion Authority under section 01. The case of IliissrII v. 'I'lif (Jiicrn has upheld this statute of 1878, the ('anada Temperance Act. Lord Hkhschell — It is not only Hodijc v. The (,hi(rn but it is that subsequent Act l)efore this Board, tli(> Dominion Act of 1888, because it has held that the Canada Temperance Act had not so completely dealt with it but that the Province and they alone could deal with all licensinj^ rej^'ulations. Mr. Newcombe — With the question of licensing. Lord Herschell — That is dealing with it ; licensing is dealing with it. " Lord Watson — It restricts the trade to licensed people which is unquestionably in one sense of the word a regulation of the trade. The Lord Chancellor — I think one must bear in mind that you are not at liberty to construe these words in their ordinary natural meaning ; you must take the words as used by the Legislature, and I am not at all certain that where you are dealing with such words as are in No. 2, " the regulation of trade and connnerce " that you are at lil)erty to go outside and consider what would be a regulation of " trad(! and commerce " ; I cannot help thinking that you must give what I will call the statutory meaning to tliose words. Lord Herschell — You are on the point supposing it to come within the earlier })art of order and good government. Your present point is whether the fact of this Temperance Act excludes a pre-existing power of the Provincial Legisla- ture ; I should say it does, and any legislation inconsistent . m ^m ■in m I '.call r\m 210 lJ(liiitr I'nthihiliiin Ajtju'di, 1H05. I with it, hnt iny diHicnlty is in sccinj^' liow consistfntly with the (IccisionH of this Jiojird it cxchidcH any otlier jjowcr. Mr. Newcomijk^I wjih en(l('iiv»)uriii<,' to iiiiike ii point as to which yoiir Ijor(]i-'hi|) miidc iiii unfiivonriihlc ohHcrviition, but T would Uke to complete that point with rcf^ard to uniformity. The statute begins with the recital : — " Whereas it is very (loHirabl(» to promote temperance in tlio Dominion, and that there should he uniform lejjishition in all the Provinces resj)ectinf,' the tralHc in intoxicating' li(iuors." Lord Hkuhchp^ll — You cannot hy citing the Dominion Act, limit the power of the Provincial rie;.,'iHlature. Mr. Newciomhe — I admit that, but it would seeni to me that the decision may involve the view that for the purpose of uniformity and for general law a|)plicable tlu'oughout Canada, the Dominion Parliament, may legislate ui)on the subject of prohibition where otherwise it might not be able to legislate. It a})})ears to me tliat the case for the purpose of this point may involve that view. The presei.t legislation i < clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion, and tlie local option, as it is called, no more localises 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. Lord Watson — I do not think any of the cases afford a definition or anything like a jjrecise definition of what precisely is meant by the expression " regulation of trade " in sub-section 2. There are explanations of it l)ut the explana- tions as far as I can find, recpiire as much explanation as the section itself. Mr. Newcombe — My Lord, so far as this branch of the case is concerned, what I submit is this ; that the Dominion Legislation which was enacted for the declared purpose of uniformity has been upheld, and the legislation was enacted with a view to produce uniformity, to have a general law ap})licable to all Canada and uniformity. If on account of the uniform character of the legislation which was then considered desirable, the legislation which then followed in Liquor Prohibition Appeal, 18'.I5. 211 the form of the Catmilii Tcinpcranco Act has hccn upheld, then it wouhl ccrtiiiiily he iiicoiisistoit with tluit fi)i' the I'roviiu'cs to conic in mid pnwhicc diversity of le^'islulioii to provide anythiuf^ ditt'ercnt. Therefore so far as uniformity is concerned if that is an (dement, as I sulnnit with all deferenc«^ it is under that d,,dshite wliile the Canada Temperance Act was in force. I r<'f -r to the case of the rnion of St. Jurqiirs v. IhHsIr (L. K. (J, I*. ('. ;U and 1 ('artvvri<^ht p. iui) on tliat point whicdi I have previously r(^ferred to. That case foreshadowed, 1 think, tlu> decision which their Lordships of this IJoard .irrived at in 77//' Ittornrii-dnirnil iij' ( hitario v. 77/(' .Ittornrii-dnirrdl of' Ciniddd, rejjorted in the Ai)))eal Cases of 1H1)4. In the fornun- case their Lordshiiis said at pai^e 8(5 : — "The hypotlicsis wiis siij,'jrcsti'(l in arLfUiiiciit by Mv. lU'iijiinmi, who cortiiiiily arj,'iu'(l this caso witli liis iisuiil ini,'('iiiiity ami force, of a law haviiii,' hci'ii prvviously passed by the Doiiiiiiion ljej,'ishUiire to tlio effect that any association of this particuhir i^iiid tliroii^'hoiit tho Dominion on certain specified conditions iissmued to l)e exactly those whicli appear on the face of tliis Statute, should tliei'eu[)()n, i'iiko l' fall under the lej^'al administration in bankruptcy or insolvency. Their Lordships are by no means prepared to say that if any sucli law as thai had been passed by the Dominion Lej^islature it woidil have been beyond their competency, nor that if it had been so passed it would have; l)een within tho competency of the Provincial Legislature afterwards tt) take a particular association out of the scope of a general law of that kind so competently passed by the authority which had power to deal with bankruptcy and insolvency. Dnt no such law ever has been passed, and to Suggest the possibility of such a law as a ri'ason wny the-power of the Provincial Legislaturu over this local and private association should be in abeyance or altogether taken away is to make a suggestion which, if followed up to its conscMpieuces, would go very far to destroy that power in all cases." Then, my Tjords, I refer to the case of 77((' Attornnj-Cunn-al of Ontario v. 77/<' Attorni'ij-Oenfral for tlit' Dominion of Canada, reported in Api)eal cases (18{)4) at pages 200 and 201, in which it IS said : — " In their Lordships' opinion these considerations must be borne in mind when interpreting the words 'bankruptcy ' and 'insolvency' in the JJritish North America Act. It appears to their Lordships that such provisions as are found in the enactment in ipieHtion, relating as they do to assignments purely voluntary, do not infringe on tlu^ exclu- sive legislative power confen-ed upon the Dominion Parliament." i'2 mM ijii If m Ifl m m 212 li: I I .M' Liquor I'rohihition Appettl, 1895. The Lord Chancellor — It may be material that I should mention now that their Lordships will only hear two Counsel. Mr. Blake — We understood that, my Lord. The Lord Chancellor — Therefore when we begin again on Tuesday you will arrange which of you will address us. Mr. Blake — Very well, my Lord. • Mr. Newcombe — " They would observe that a system of bankruptcy legislation may frequently require various ancillary provisions for the purpose of preventing the Scheme of the Act from being defeated. It may be necessary for this purpose to deal with the effect of executions and other matters which would otherwise be within the legislative com- petence of the Provincial Legislature. Their Lordships do not doubt that it would be open to the Dominion Parliament to deal with such matters as part of a bankruptcy law, and the Provincial Legislature would doubtless be then precluded from interfering with this legislation inasmuch as such interference would affect the bankruptcy law of the Dominion Parliament. But it does not follow that any such subjects as might properly be treated as ancillary to such a law and therefore within the powers of the iJominion Parliament, are excluded from the legislative authority of the Provincial Legislature wh^n there is no bankruptcy or insolvency legislation of the Dominion Parliament in existence." Lord Watson — That case is distinguishable in all the points that create the leading difficulties in this. There, that the right under the sub-section of legislating for bankruptcy pertained to the Dominion and to the Dominion only, was made perfectly clear. It is not a subject that is included in any of the sub-sections of section 92, and no pretext could be made by the Provincial Legislature that it could legislate on the subject of bankruptcy. It could legislate on the subject of civil rights, and what we held in that case was that although in dealing with bankruptcy it might be necessary to touch civil rights, that the Provincial Legislature is free to deal with civil rights and I'^gislate upon them until the Dominion has legislated in liankruptcy. After that, so far as civil rights are competently involved in their bank- ruptcy legislation, the Provincial Legislature has no power. Mr. Newcombe — I merely cited the case as an authority upon the [)oint that the Dominion legislation would prevail. Now suppose, as an example of the inconsistency which would Liquur I'lvhihition Appeal, 1896. 213 result if the Province could meddle with the suhject of prohihition in view of the Canada Temperance Act, an attempt made under the Statute to hring the Canada Temperance Act into force in a County, and the Act was rejected hy the electors, then I submit that section 95 of the Act is in effect a declaration on behalf of the Dominion Parliament within its competence that there shall be freedom as to the sale of intoxicating liquors within that County for three years. If the Province could legislate the liquor seller is subject to another contest perhaps the next week under a Provincial statute, or prohi- bition may be forced upon him by the Province notwithstanding he has succeeded in getting it rejected in the nuinner provided by Parliament. Lord Watson — Your argument is that not only in those cases where it is adopted there is an immense restriction, but so far as there is no restriction it provides tliat there shall be free liberty to sell. ' Mr. Newcombe — Yes, my Lord. Then upon the question of wholesale and retail I point out that the Canada Tem- perance Act was a retail Act so far as the question depends upon quantity. It has been held to be in force, and no unfavourable distinction can be drawn so far as the Dominion is concerned in respect of wholesale dealings. In so far as the Ciise of Uimcll v. The (Jueeii is an authority in our favour it seems to show that it sui)[)orts our case u))on the wholesale aspect of it. The seventh question, I submit, takes the Provincial view no further than the previous (luestions. The (juestion is one of prohibition under whichever question you like, and I submit that the case for the Province of Ontario under the seventh question is no strongtn' than the case of Nova Scotia or New Brunswick would be if they were to enact a similar Statute, although neither of those Provinces had enacted previous to confederation any such Statute. My Lords, I subnnt on these considerations that the answers of the majority of the Supreme Court should be upheld. The Lord Chancellor - We will resume the consideration of this Appeal on Tuesday next. i /i [Adjourned to Tuesdmj iiexi {Aiujitst ^tk) at 10,30. j 214 Liquor Prohibition Appeal, 1805. THIRD DAY. Mr. Blake — I nppear, my Jjords, foj the Iiespondents, the Distillers' and Lrewers' Association of Ontario. Perhaps I may he permitted, hefore entering upon what I have to address to your Lordships on the case, to say a word or two with reference to the meaning of the questions, and to some suggestions which were made as to difficulties in dealing with them, owing to the form in which the matter comes hefore your Lordships. Of course my clients have Judgment in the case ; hut your Lordships have already heen informed of the actual condition of judicial opinion in the Court of final resort in the Dominion, and it need hardly he said that a .Judgment under such circumstances is eminently unsatisfactory, and cannot he considered to settle the question, even locally. Your Lordships have had l)efore you, in the case of the Dominion Ijicense Act, an attempt, ex])edited hy the authority, and at the special instance of the Parliament of the Domhiion, to procure a solution of somewhat analogous (piostions ; and it is })ul)lic, and I ])resume fit to he alluded to here, what the reasons were for that course heing taken. It was hecause of the enormous puhlic inconvenience, harass- ment and expense occasioned hy an Act of that description, the Dominion License Act, which ran so wide and so inti- mately affected the relations of the connimnity, being put into operation while its constiiutionality was in doubt, and in the end it was found that those doubts were well founded. Lord Davey — The Dominion License Act is the Act of 1888? ' ■ ■: Mr. Bf *KK— Yes. \n enormous public expense, a tremendous' .inount of private inconvcMiience and loss were occasioned by the putting of tluit Act into actual ()})eration, it being found in the end that it was an Act wliich had no legal operation. Obviously, like difficulties would be created, and similar inconveniences wouhl arise from th(> putting into operation of an Act of either Legislature of such a nature as is suggested as possible by these questions ; and it was there- Liquor l'n)liil)iii()ii Ai)j)('iil, 18U5. •216 fore, I submit, not unreasonable to make some effort to decide in advance upon the validity of such suggested legislation, Nor are the questions purely academic and speculative, in the sense in which, as I a^iprehend, those terms were applied the other day. Because matters have gone so far in this connection that an Act was passed in 18<.)H by the Legislature of the Province of Ontario, being Chapter 41 of the Statutes of that year, to enable the electors of that Province to pronounce ujion the desirability of })roliil)iting the importation, manufacture and sale is a beverage of intoxicating liquors. The preamble of that Act is this : — " Whereas it is desirable that opportunity should be aflbrded to the Electors of this Province to express a formal opinion as to whether or not the importation, manufacture and sale into or within this Province of intoxicating liquors a;; a beverage should be immediately prohibited. And whereas such opinion can most conveniently be ascertained by ballot in the manner hereinafter mentioned." The Act may be cited as the " Prohibition Plebiscite Act." It is provided by the 2nd section that : — " Upon the day fixed by law for holding polls for the annual ■- election of members of municipal councils, in the month of January, 1894, the clerk of every municipality other than a county, shall submit to the vote of the electors hereinafter declared (pialitied to vote on the same, the question whether or not the said electors are in favour of the prohibition by the competent authority of the importation, manufacture and sale as a beverage of intoxicating li(juors into or within the Province of Ontario." Then there are detailed ))rovisions for carrying out that \)o\\, and the directions for the guichmce of voti'rs in voting contain the following expression {see Schedule C) : — "Voters in voting 'yes' on this question will be considered as expressing an opinion in favor of prohibition to the extent to which the Legifh'ture of this Province or the I'urliaiiient of Canada has juri.sdic- tion, as may be determined by the Court of Final Resort." That plebiscite was taken and resulted in a large majority in favour of innnediate })rohibition. Similar legislation has taken phice in the Province of \hu)it()ba. with I believe a similar plebiscite and a similar result, so that your Lordships will see there is a degr(>e of public interest, and if T may use the phrase, the question lias reached a d(>gree of maturity as to public opinion — at any rate in the Provinces, where these two Acts have been passed — which puts not in the area of remote speculation but within the scope of the innnediate future the * l m I :i. 1 "!• jL .J. 1 BHl mmmmm mm^mm 21() Liquor Prohibition Ajypeal, 1895. : C prospect of legislation by one body or the other, so soon as it is found that the legislation is within the competency of the Legislature. Next, my Lords, it seems to me, with reference to the suggestions that there is a difficulty in dealing with these questions greater than there would be in dealing with an Act, that what one has to do is to turn them into Acts. I think for example that the point your Lordships have to solve — taking the first question — would be precisely the same one as if a short Act was passed by the Legislature of Ontario, to the effect " that the sale within this Province of spirituous, fermented or other intoxicating liquor is hereby prohibited," with an appropriate penalty. There you have got the bald, naked proposition of the question turned into a short Act. If more is wanted in order to give a full answer, that more would not exist upon such an Act, and cannot be imported into this case ; but still on a prosecution for a penalty under an Act which turned that question into a clause of an Act of Parliament, your Lordships would have precisely the same •.question with the same difficulties as they exist of absence of further information as to circumstances, purpose, motive and extent. Lord Watson — The first question is really a concrete question. You must assume an Act passed to that effect. The Lord Chanckllor — I do not feel that difficulty. When dealing with an absolute prohibition, I should agree with you — the matter is clear enough ; but supposing some (juestion should arise in our minds as to whether or not the particular form of prohibition in terms might be only regulation and not with reference to hours, we will say, or limitation of the mode of sale or the quantity of sale, it is there the difficulty conies in, because you have to exhaust every possible hypothesis to i)ronouiice an opinion. If you had an actual Act before you, you could say that was within or without a reasonable application of those terms. Mr. Blake — I quite agree ; but what I venture to say is that what we at the Bar, and what, if I may respectfully suggest so to your Lordships, you have to do, is to assume that question turned into a clause of an Act of Parliament. ■i^rspc^wf f ■ n" Liquor Prohibit! 01} Appral, 1895. 217 The liORi) Chancellor — That i)articu]ar one I should agree. Prohibition or non-prohibition is clear enough. Mr. Blake — Quite so. Lord Watson — Take the questions one by one. The first question you can see involves a substantial concrete question. . ,, : , ^ , , Mr. Blake — And so the second Ijord Watson — Would an Act of the Ijegislature absolutely prohi()iting the sale within the Province of spirituous li(|Uors be within its provini^e ? The next raises the question does the legislation of the Canadian Parlianierit oust the jurisdiction of the Provincial Legislature in those portions of the Dominion where the Temperance Act has been adopted by the inhabitants and is in force, and is it or is it not ousted as regards those portions of the Dominion where it has not l)een adopted and is not in force '/ The next two questions are quite clear. The 5th question I understand to be this. That if they have not power to enact a total prohibition, has the Provincial Legislature jurisdiction to regulate retail sales so as to prohibit liquor being sold by retail in quantities, less than those specified in the Statutes in force at the time of confederation. Then come these last words " or any other definition thereof." 1 do not understand that they intend to modify the quantities to be sold or to allow a little larger (piantity or a lesser quantity to be sold than that Act allows. The next question, I understand (you .will put me right if I misai)prehend it) to involve this (juestion or conundrum. If they are possessed of a limited jurisdiction such as is indicated in question 5, have they the power, within those parts of this Province, where the Canada Temperance Act is not in force to enact a law which will practically imjjose the provisions of the (Canada Temperance Act upon that part of the Province, observing the limits of the Canada Temperance Act, but merely applying that Act without its being adopted in the manner specified in the Act itself in the Dominion. Then comes the 7th duestion which is on the section that gives rise to this contrr ersy. It is a concrete question no doubt. . ■'■•li Kir 'I? m f 4 ' :. ' 1 ■4 ~ i r 218 Liquor Prohihitlon Appeal, 1895. Mr. l^LAKE — I was al)out to adopt the method yonv 1 jordshi[) has heen kind enough to take of deahn;^ one hy one with the different questions ; and I had dealt with the first one. The second, I understand your Jjordship to aj^ree, is open to the same ohservation. It is quite clear that one may suggest an Act in those terms. Lord Davey — That opens larger considerations. It o})ens the very large consideration of the relation of the Dominion Parliament and of the Provincial Legislatures to each other on those matters where this Board has said tb n- legislation overlaps. Mr. Blake — Doubtless. Lord Davey — That is a very large question. Mr. Blake — I agree ; large, complicated, more difficult, more doubtful [)erhaps of solution, but then that does not affect my present object. Lord Davey — It is soluble ? Mr. Blake — My present object is to find whether it is a question which you can turn into a clause of an Act of Parliament. Lord Watson — I think one question that may arise for our consideration, and which we shall have to consider, and which if determined one way or the other would api)ear to me to influence to some extent my opinion in this case at all events, is this ; whether the legislation on these matters — the Drink Traffic Prohibitions enacted by the Dominion of C'anada — are in reality and substance enactments for the pur- [)ose of regulating Trade and C!ommerce, or are in substance and reality enactments passed for the welfare of the inhabitants and with a view to suppressing drunken habits, that being under the first general part of section 91 which precedes the special sub-sections. Mr. Blake — Yes my Lord. Ijord Davey — The second question appears to me to affect not so nuich the power of the Provincial Legislature to legislate as the effect of such legislation when niade. It may Liquor I'nthibilioii Apjtad, l8i)5. •210 well be tluit they have power to pass an Act for total proliil)itioii throuj^hont the Provinee, l)nt then conies a Dominion Act which is to a certain extent in conllict with it, and the (juestioii is which Act the inhal)it!i,nts are to o])ey, because the mere fact of the Parliament of the l^ominion having passed a j)articnlar Act, which T will iissnnie is within its jurisdiction, cannot affect the abstract (piestion of the i)ower of the Provincial Le/^^islature to legislate. L. not understand the (piestion myself. as Lord Watson understands it. I incline to believe that a different interpretation is to be given to that question. Lord W^atson — You have to assume first that the Pro- vincial Legislature has a limited jurisdiction — if we come to that conclusion under Question 5, it assumes that Question 5 is answered in the affirmative. If the Provincial Legislature is found under Question 5 not to have any jurisdiction — even a limited jurisdiction — as regards prohibition of sale, this Question No. (> would fail, would not it ? Lord Davev — I understand Question (> as meaning this : Having regard to the fact that the Canada Tem])erance Act is not an Act for total prohibition, but for prohibition with certain exceptions, does the fact of the Dominion Parliament having legislated in that way cut down the legislation of the Province — if the power to legislate exists ? Lord Watson — It looks like, in other terms, but in substance, as being a question to this effect : Can the Pro- T frankly confess I do I do not understand it fJtinor Pruliibition Appeal, 1895. •228 If il vini'ial Ti(>^nsliiture enforce the })rovisi()iis of the (^iiimdu Teiupcraiicc Act in those parts of the Province wliere that Act is not adopted ? Mr. Blakk — Tlie difficulty about that view is that that is really No. 2. Lord Davky — It seems to he a repetition of No. 2. Lord Watson — No, no ; I think they are quite dirt'ereut. In Question No. 2 you are dealing with total i)rohihition. Has the Provincial Legislature a free hand in those })arts of tlie Province where the C'anada Temperance Act is not in force ? Question (i does not put the question whether they have a free hand to legislate if they choose and jjrohihit to any extent, hut it i)uts this : ('an they i)rohihit to the extent to which it is proliihited within those parts of Canada where the C!anada Temperance Act applies ? Mr. Blake — I did not understand your Lordship's earlier ex})osition as your Lordshi]) now puts it. That is more like what I understand the question to he as far as I can reach its meaning. Lord Davey — Has it power to make the ('anada Tem- perance Act compulsory in the case of counties and townships where it has not been in force ? Mr. Blake — I think it is not that. Lord Watson — I think it is alternative to Question No. 2. Question No. 2 says: "Can the Legislature wholly prohibit the sale of liquor within those parts of the Province where the Canada Temperance Act is not in force ? " If they cannot wholly lU'ohibit or to such extent as they think expedient can they 'prohibit to the extent that would be l)ro\ided by the Canada Temperance Act if it were in operation ? " Can they do exactly what the Dominion has done ? Mr. Blake — I own I find it more difficult to understand what the question is than to answer it. Because I believe the arguments I shall submit to your Lordships are of a character that excludes anything but a negative answer to this question, whatever it means. Question 7 is admitted to M\ 224 JjiiliiDf I'mliihitiDii Apjx'dl, 181)6. be II concrete (jnestion. So niiicli with reference to the (liHicnlty of tliese mutters coining in the form of (jueHtions instead of in the form of Acts. fjord Watson — ^These (|ueationH are Kometliin<,' like tlie provisions of section 1)1 and section 1)2 — they overhij). Mr. Bi-AKK — And possibly conflict, my Lord. It follows then — taking the main (piestions, the lar},'e (piestions — that a solution is demanded of the (piestion whether a Province ha« the power to mak(! an ai)solnt<> and all-end)racing j)r()liibitory law as to each of these matters, a law less local in its practical Rpl)lication, less dependent on local option, and wider in its extent than the Canada Temperance Act itself ? It seems to me tliat that is really tiie main and most important class of questions with which your Lordships have to deal. Now, before I proceed to deal with those two questions which Lord Watson has suggested are the questions — tlu^ question of the authority of the Parliament of Canada under tlie general powers with all which that involves, and the question of its authority under the enumerated power "trade and commerce," may! briefly say, not by way of elaboration at all, l)ut by way of general statement, what I conceive may fairly be laid down as the pro})ositions in the line of which I purpose to argue the case. It seems to me that a competent Legislature may treat any trade by prohibition and thus make it unlawful, which of course prohibjl;..ii would; firstly, because either on social or moral grounds it is bad for public morals, order or safety, the grounds which are all mentioned in the Judgment of this Board in the Rnssdl case, — or, secondly, because of some fiscal, economic or political reasons including treaty reasons. There are these two classes, of which the second has different branches, and I am going to contend that both under the general and under the enumerated powers of the Dominion the jurisdiction to pro- hibit on any of these grounds rests in, and rests solely in, the Dominion. The second mode of treatmg a trade may be by ordering it, (I use that word for the moment instead of " regulating,") as a trade intended to exist and recognised as hiwful, but requiring to be ordered on any of those grounds which I have mentioned. And here I am going to contend that there is a distribution of power. There may be, to quote 'm Li(lii(ir I'rnhlhitioii Apfwul, 1HU5. 22r) iHili the Ijin^na^e that whh used in Parsniis' case, "ininnt(> miittf^rs of re;^nlatioii attrctiiif^ the |tarli(tiilar ti*a(l(>," or to rctcr to, witlioiit at this iiiomciit (inotiii^' the laii to (h'aw the exact hue (whcni it comes to he (h'awn) in I'dmmx' case and in llddijr's case and in the homiiiioii Lirfiisr case, — I snhniit that the power has heen tlycided to he exchisively Provinciah in tlie case in which your Lordships shall adjudicate that it is nnnute regulation affecting a particular trade, there I'disons' case says that is local. In the case in which your Lordships shall adjudicate according to the language which, as I say, I refer to without at this moment quoting hecause I shall have to quote it presently, that it is within " the police power," there your Lordships have held that it is exclusively local. Then drawing that Hne wliicli is to be drawn in principle, in general statement in every case and in exact ai)pli(;ation, — a nnich more difficult task when the particular case arises — drawing that Hne and cutting off as exclusively Provincial what falls within these two descriptions, there are yet reguhitions which march wider, which cat deeper, which are of more general ap[)Hcation, which go heyond minute regulations affecting a particular trade, which go heyond simple " police matters " dealing with the varying circumstances and conditions of small or differently-circumstanced localities. As to those I am going to contend that they are in the Dominion, and wholly in the Dominion, under hoth its powers, the general and the special. Of course, the liiie of demarcation is difticult, and fortunately it is not amongst the things that have to he decided to-day. In point of fact that line cannot he drawn except with reference to the particlar case which arises, and the particular legislation with which your Lordships are dealing at the time. But dealing with that in the particular case and then drawing the line, you find where the Dominion and where Provincial })owers reside. The Lord Chancellor — I made an ohservation the other day which, I think, I ought to retract upon consideration. What occurred to me was, and it is relevant to our present 226 Liquor Prohibition Appeal, 1895. !i discussion, that those words " Re<^ulation of Trade" could not he satisfied by its prohibition. I think I was too hasty. Trade generally may be regulated by prohibiting u particular trade. Take the case of the prohibition of the exportation of wool with which this country was familiar at one time. That was a regulation of trade, and it was the prohibition of a particular trade. Mr. Blake — Quite so. The Lord Chancellor— And it may well be that whenever you are dealing with the entire i)rohibition of a particular trade that may be r'\'julation of trade in the strictest sense. Mr. Blake — Quite so. Lord Watson — We regulate the trade of these Islands in tobacco by prohibiting its production except to a very limited extent. Mr. Blake — You prohibit the production and you prohibit the sale of the manufactured article. That is one of the instances I was about to cite to your Lordships. The Lord Chancellor- -My mind was directed to the Provincial area. There it might be true enough to say that it is not regulating it. There it is prohibiting it altogether. That is a question of dealing with a particular trade. Mr. Blake — A separate question. I was about to say, and I am very happy to hear your Lordshijjs observations, that my argument will be that when you draw the Une of demarcation and find where the local power stops and w.tere the Dominion power begins, you must find that the latter goes on to the end, even to the extent of i)rohibition, and thi^ under the title of regulation as well as under the general power. That is the observation I was about to make, that all the va"ying shades and pluises of dealing with trade which go beyond these two, which I have admitted to be upon the authorities local, are exclusively Dominion right down to prohibition, and that within "regulations" as well as under the general powers. Those are the general positions I shall take. Now it is ol)vious)y convenient to take them in their order when one comes to deal with the question of powers, and to '^ ft m Liquor Proliihition Apiwai, 1895. 2'27 take first of all the general power. That is convenient, hecause it is the firsu power given ; and it is convenient also hecause it is the power acted on in the concrete case, which so intimately l)ears npon the decision of this question, in the Riissrll case. It is the power upon which this Board acted in determining that that Act was within the powers of the Dominion Parliament. I am sorry, my Lords, to have to refer again to sections 91 and 9'2. The LoKD Chancellor- thing turns on it really. -I do not wonder at it : the whole Mr. Blake — Quite so ; hut yet I am sorry to have to ask your Lordships to give a consideration, which I will try and make as hrief as possihle, to the effect of this genera- provision : — " It shall be lawful for the(Doiinnion) to make laws for the peace, order and good govenmieiit of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." Now these general words, leaving out the exception for the moment, are extensive enough to grant all powers whatever, whether local or private, in any part of Canada. Nothing so minute, nothing so local, nothing so large, nothing cutting so wide or deep, hut it is included in those Vv'ords, hecause they .ire, as has already heen stated, the commoii form words under which the general legislative power given to the domesticall}- self-governing CV)loiiies has heen granted for a long time, first of .ill in instructions and commissions, and iifterwards in Acts of Parliament. These words are deliherately chosen as expressing in their generality the character of the powers that are given to the Dominion, and they are cut down only hv the expression " in relation to " all matters not coming within the classes of suhjects assigned " exclusively to the Legislatures of the Provinces." I ohserve first, then, that there is here, even with reference to the general powers, no idea of concurrence. It was not to he expected in looking at the whole Act that you would find it there, for section 95 gives you two express particular subjects of concurrent ])owers of legislation, with reference to agricul- ture and with reference to immigration. m^mm ^^w mm 11 228 Liquor Prohi'bitiov Appeal, 1895. Lord Herschell — This Board has held it may in a sense be concurrent. We can hardly go back from that ; that is to say that there are .natters which the Provincial Legislatures may d(!al with as to which they might be overridden by the action of the Dominion legislation. Mr. Blake — I am going to discuss the rulings of the Board on the sul)ject. I quite recognise the fact that I eh not entitled to combat anything that has been decided, but hope to show your Lordships that nothing that has been decided is inconsistent with or disables me from presenting this view of the case. You find, as I say, an express ])rovision for each power making laws in relation to agriculture and immigration, and you find an express provision as to the degree of validity which the provincial law shall have in that case. It shall have effect in and for the Province as long and as far only as it is not repugnant to an Act of Parliament of the Dominion. So that there is power in each to legislate, and the power of the Province is subordinated to the executed power of the Dominion. That being so we would not expect to find in other provisions of the Act a scheme of concurrent powers, either express or implied, and we do not, as I submit, find it here ; because, while there is a general power given in these first words to the Parliament of Canada for everything, that power is limited by cutting out from it all those specified powers which are assigned exclusively to the Legislatures of the Provinces. Therefore, there is a sharp line of division ; all the things which are assigned to the Provinces belong to the Provinces ; all the rest belong to the Dominion. Then it is to be observed as bearing only upon the interpretation of the prior part of section 91 for the monient, and not entering otherwise on the argument in reference to the enumerated powers which comes under a separate head — it is to be observed that the meaning of that part which preceeds the enumeration is consistent with what I have said :— " For greater certainty but not so as to restrict the goiieralitv of V the foregoing terms of thit! section it is hereby declared i- ir (»"otwith- standing anything in this Act) the exchisive legii> .v'i .e aulhoi 'tv of the Parliament of Canada extends to all matters "'' '■• '■'■'• '''■.'' It is indicated that there were matters which wery intended by Parliament to be embraced within the general exclu- sive authority, within that same legislative authority which 4 ^ ' 1 ii Liquur Vrohibitioii Appeal, 1895. 229 is given under the prior part of section 1, and which was itself clearly exclusive. But as to these particular subjects, for various reasons some of which are stated very clearly in some of the judgments now under a])peal, it was obvious that there might be doubt, conflict, and difficulty of ascertainment as to whether, having regard to the enumerated i)owers in section 92, some of these things were within or without the area of Provincial legislation, and therefore " for greater certainty but not so as to restrict the generality of the foregoing terms." And thus by words indicative of the view that they were, in fact, and in inten- tion embraced witLhi those general terms, the enumeration took place. Now let me state another difference. You have the powers limited, when you come to the Province by the area and the objects ; provincial area and provincial objects are the scope. I think each one of the provincial powers is indicated in itself to be for i)rovincial purposes. Instead of setting that out generally at the commencement, in each one of the Articles it is specifically stated. But you find on the contrary, unlimited, save by the ex})ress exception, general powers both as to scope, area, and objects in the Dominion. There is therefore, as I submii, nothing whatever to indicate in the least degree that the power of the Parliament of Canada was so limited as to those subjects on which it might enact that it could not, if the welfare of the whole community, in its o])inion, demanded, enact with reference to i)artieular parts of that community, the legislation which the condition of that part might, in tlie interest of all, specially demand. It is (piite true that it was hoped and expected, and it was a reasonable hope and expectation, that, as a rule, the legisla- tion would be general, extending over the whole area, the subjects being common. But there is nothing in these powers which prescribes any such limitation, and it is perfectly clear that the peace, welfare, and gooa government of the whole connnunity may demand within the undisputed bounds of the legislative powers of the Dominion, an Act of Parliament affecting directly, not the whole area, not the whole connnunity, l)ut some part of that community as to these matters on which the Dominion has power to legislate for all. m m MM •Ml '111 a m I! '< . 230 Liquor Prolu'J)itlini Ajqinil, 1895 Lord Herschei.l — I should have found a difficulty in drawing the line if you put it so hroadly as that, hecause nothing could be said in that sense to be of a local character. Everything ' >/ is for the benefit of a part is in its degree and sense foi 'oenetit of the whole, and therefore you could say noth.i was local. You might legislate for a particular Province because you might say the prosperity of that Province is the })rosperity of the Dominion, and though it is a mere local matter though it is legislation confined within this limit, yet nevertheless it is within the authority of the Dominion. Your proposition seems to me to be so broad as to embrace that and it would make it difficult to draw a line that would exclude it. Mr. Blake — It hangs on the phrase "merely." Lord Hekschell — Then in that sense nothing is merchj local. You may say it is for the i)eace of Canada to legislate in a particular way — in a particular part of the Province. That is because the advantage or the prosperity of that Province may affect the prosperity of the Dominion. Should you say that that is a case in which they might legislate ? Sir Richard Couch— You take away a good deal of the meaning of the word " exclusive." Mr. Blake — I do not put it in that way. Lord Watson — I (piite agree with your suggestion that there is no such thing conferred by these two clauses as concurrent legislation — as I understand the words concurrent legislation. The legislation to be effective nnist l)e by one or the other. I do not think they are joined together, but I think the result — and that does not render the present question less difficult to deal with — of recent judg- ments of this Board have been to establish that there are some ))owers of legislation which may be exercised by the Provincial Ijegislature, and so long as they are not interfered with by the Dominion Parliament they will stand and be effectual. I understand that this Board has gone this length further, that these enactments may be overridden by an Act of the Dominion Parliament, com[)etently legislating within its own field, but my impression as to the meaning of the m hiqii»r I'rohlhitiou Appnil, I89f5. '231 opinions which this Board has expressed is this, that whilst the Dominion ParHanient could override it hy an enactment that came into collision with the Provincial enactment, the matter would not he so exclusively within the jurisdiction of the Dominion larliament as to enahle that Parliament to repeal. That is another question ; it might overpower it hut not repeal it. ^ ' ' Lord Davey — -The proviso to section 91 seems to contemplate that the Dominion Parliament may legislate on matters which are local if they come within the enumerated Buhjects of section 91. Lord Heuschell — Nothing can he said to he merely local which comes within those suh-sections, that is clear. Mr. Blake — I agree. Lord Hehschell — But you are speaking of the general power in the earlier part. Mr. Blake — Quite so. Lord Hekschell — And I should not differ as at })resent advised from your saying that it would not necessarily refjuire that the legislation should he legislation ai)i)licahle to every part of the Dominion ; hut when you say they can legislate as to a place in a particular Province, then it seems difficult to draw the line hetween that and the local legislation referred to in section 92. Mr. Blake — As your Lordship put it a moment ago, I can understand that very difficult questions of power would he raised. Difficult (juestions of power may he raised on many clauses of this Act, and it may he very hard to draw the line in numerous cases which may he suggested. Lord Hekschell — That is why 1 hegin to douht whether one can determine any such questions in the ahstract hy general propositions as to the mode in which the two sections are to he interpreted. I think it is difficult to deal with any- thing hut a concrete case. Mr. Blake — Yes, my Ijord ; I opened l)y trying to find how nearly we were concerned in concrete cases to-day, and im f ii n % "ii Fr^ 232 Liquor Prohibition Appeal, 1895. I \'-' I ; i I I quite agree, but it is only because I want to examine a little later the phrases Lord Watson — The two sub-sections which raise most difficulty in questions of this kind are those which give power to the Provinces under sub-sections 13 and 16, the one referring to all civil rights which are Provincial, and the other referring to all matters Provincial which are merely local. Mr. Blake — Yes ; what I was going to say about that is, that you get perhaps in a larger sphere, but in i)rinciple you get the same degree of difficulty that you get if you are called upon to determine where the limit of a i)olice regulation is, which as I venture to suggest is, speaking broadly, the limit of the Provincial power on the reference which is in question. Lord Herschell — " Police regulation " is a very vague phrase. I am quite aware that that was used in Hodys case ; but it only means something conducive to the good order of the Dominion. It has nothing to do with the police. Mr. Blake — It is rather borrowed from what is called the police power which we know has a larger interpretation. Lord Herschell — Saying that licensed premises shall not be open between prohibited hours is not a police regulation. The police have nothing to do with it except to see the law is not broken as in every other case Mr. Blake — I assumed rather the phrase had been used in Hodijes case in the sense I suggest. The Lord Chancellor — We have substituted the word "Police" for "Constable," and if you get the old Common Law word there is a thread of theory that ran through it which was the preservation of the peace. Mr. Blake — Yes. Lord Davey — If you look at the derivation " Police," I expect it means the maintenance of jVrui>ici})al order. .-;*, Mr. Blake — Yes. Lord Watson — We are apt to use these ex})r ssions which really are not definitive of the thing enacted but are ' 1 Liquor Vvohihition Appeal, 1805. '238 descriptive of the executive body entrusted with the execution of the Statute. Mr. Blake— Yes. - --^- " ■^■■:- ' . ■■ '^ >■" ^^' :■ ■ - - Lord Watson — It becomes a pohce matter, and we use the words " Pohce regulation " whenever it is entrusted to the pohce for enforcement. Mr. Blake — Yes. --vr '-.■•''. 't--;i .■■; ■ .■;. w-'.. '-: Lord Watson — But that word does not define the luiture of the enactment or the object of the legishiture in passing it. Mr. Blake — No, my Lord. r ' Lord Watson — Sanitary arrangements and that kind of thing are entirely for the benetit of the community. Lord Hehschell — There is nothing about "Pohce" in section 92 at all. ., In..-;' - ■-: :' ; .;: ; ..,.. Mr. Blake — No, my Lord. I am sorry I used the word. I thought I borrowed it from one of the cases. ' Lord Herscheli- — It was used in Hixliys case. It was thought it pointed to a distinction which helped one. I confess you may call them Police Regulations ; but it does not help one with reference to other cases to call them Police Regulations. - . i . ;. ■''/..:. . . Mr. Blake — No, my Lord. I (luite agree, and what I was saying M'as that you would tind it very difticult when you came to draw the line to find what is " Police " and what is not " Police," within the sense in which that term is used in Hodge a case, and so you find it difficult to determine what is merely local or private and what is beyond it. One can suggest extreme cases in which it would be perfectly clear. For instance with reference to a small ordinary travelled road in one portion of a great Province you might say in one sense — that in which your Lordships put it— that the prosperity of the whole Dominion depends on the prosperity of each of the inhabitants : there are 20 })eoi)le that live on this road ; the whole Dominion will be infinitesimally better off, but still better off, if these 20 are better ac;'onmiodated ; and therefore it is a Canadian matter to see to the repair of that 234 Liquor Prohibition Appeal, 1896. i 1 road or legislate with regard to it. I should say that that proposition would he ohviously ahsurd, and that that matter would he ohviously a merely local or private matter. There must he some reasonahle suggestion to sustain the proposition that there is a common interest in the condition of the question and of the treatment of it hy the Parliament concerned. Lord Davey— If there were larger elements of disorder and rebellion against government in one particular Province it would he a matter of the peace, order and good government to prohibit the sale of firearms in that Province ? Mr. Blake — Yes, and it would he, as I submit, within the power of the Parliament of Canada. We have had cases in the earlier times, and also in the later history of the country, where disturbances took place of a grave description, but absolutely local, not affecting, except incidentally, the other parts of the Dominion, and no one ever doubted, or could doubt, I think, that the dealing with those matters by force or by law — and special laws have been passed — was appro})riate.ly and necessarily and exclusively a Canadian transaction ; and yet they did not touch, excepting in the sense in which I put it, the peace, order, and good government of the whole country, but that i)eace, order and good government was doubtless incidentally affected by the disturbance in the particular place. Lord Davey — In Webster's Dictionary "Police" is said to be a French word, and to mean " regulation and government of a City or County or Union as regards the inhabitants." That does not carry one very far. The Lord Chancellor — That is very wide. Lord Herschell — Supposing it was not necessary as to the peace, order, and good government of Canada, but it was necessary for local purposes that you should prohibit the sale or carrying of firearms, or anything you please with regard to them. It is difficult to see why the Provincial Legislature should not deal with it, if it was a merely local nvatter ; but it is difficult, on the other hand to see why because the , have dealt with it as a merely local matter when it was a local matter, the Dominion Parliament Liquor Prohihitiuii Appeal, 1895. 236 when some ijrovisiou with reference to tire-arms hecame ne(!essary for the peace, order and »^ood government of the whole Dominion, sliouhl he therehy prechided from deaHng with it or nhonkl he unahle to deal with it in that way. I can conceive l)oth dealing with it in that way. A matter may he a merely local question at one time, hnt the state of the Dominion niay make it something nmch more than a local matter at another time. I do not see anv difficultv in saving that then the Dominion power would come into force, and it would not he inconsistent with that that there had heen an e.xercise of power hy the Provincial Legislature. Mr. Blake — I own I find it difficult to define in my mind the condition of things which your Lordshi}) suggests as local, with reference to i)rohii)iting or restraining the carrying of tire-arms, which would not make it a Dominion matter. It may he suggested that there are turhulent s})irits in particular portions of the Dominion, that there is a reckless habit of carrying tire-arms, that there have heen criminal offences connnitted by the wanton use of them, and that people have been killed or wounded in those particular places. All those things seem to me to point to one conclusion and that is that it is a matter for Canadian action. Lord Herschell — I do not see if that is the case why the provisions discussed in Hodijr v. Thr Queen were not Canadian. The object of them was that you should not have disorder, that you should not have drunken people committing crimes or troubling the comnnmity, and you might just as nnich say as to the carrying of fire-arms that it was not merely local but that it was a matter concerning the peace, order and good government of Canada. It seems to me you cut very deep into what is merely local though you {;,dmit the evil is one confined to the provincial area to be determined by the circumstiinces of the provincial area. If you come to that, what is " merely local " '? The Lord Chancellor — The difficulty about it is that you have two words to construe. You have the word "merely" and the word " exclusively " to be construed and those words have to be satisfied by something. i Mr. Blake — Yes, and where I find a difficultv is this : \WM 2m Liquor I'rolilhitloii Ajtpml, 1896. I find a difficulty in adopting the propoHitiou that if your tranHaction is merely local in itH nature, and if there Ih the excluHive power — if the fact that it is local in Province A gives that Province the exclusive power of dealing with it, and it turns out that it exists also locally in Province B, which therefore has the exclusive power of dealing with it — that hy this occurrence it ceases to he local anywhere and becomes general. Lord Herschell — This Board said something very like that in /iV/.s-.sr// v. The (Jinrii. They indicated there that though a thing might be merely local viewed in relation to the particular Province yet nevertheless it might be necessary to have some general legislation for the whole of Canada for its peace, order and good government. Lord Davey — Then it would not be " merely." Lord Herschell — It is not " merely local " when it becomes necessary to deal with the matter generally. That I understand to be the view taken in Russell v. The Queen. Mr. Blake — May it not be said to be general where there is a sort of danger of contagion or disturbance spreading over the whole of the Dominion, because it is sporadic in different Provinces. If the matter be merely local or private and the condition which requires legislation exists in one Province only, it is suggested that the Dominion should not have power to legislate ; Lord Herschell — Sanitary regulations certainly prima fticie within a Province would be a matter merely local for which the Provincial Legislature would have power to legislate, and yet there may be a condition of things which renders some general sanitary legislation necessary for the safety of the whole Dominion. Lord Watson — In one Province there may be a local evil peculiar to one Province, it may be wholly a local matter and apparently section 92 in that case gives the local legisla- ture the right to deal with it. Then it may attain such dimensions as to become a threatened danger to the whole Dominion and in that case I should be sorry to doubt that there is power given to the Dominion Parliament to intervene. I ^y^ Ijiifiior I'roliiltition Appnil, 1H',)5. 287 There may be an evil of the Haine nature which is local in each and every one of the Provinces and ai)))ari'ntly the Dominion of (Canada would he justified in that case in apjjiy- ing a uniform remedy to the whole. Mr. Blake — Although it is merely local in nature. Lord Watson — I can (juite understand that there is one thing, the disease is sjjoradic. Lord Davey — Is not that the answer — that it is not merely local. ... - . • ,• ; -; «, ., „ ■ , Mr. Blake — I am not certain that that is exactly the answer — that it is a full answer. It would depend on that which prevented it from being merely local. Is the special circumstance that it happens to exist in some little corner in a second Province to remove it from the area of mere locality ? The Lord Chancellor — Take for example the prohibition of firearms. Do you shrink from saying that that can only be dealt with by a General Law or not ? ,, , Mr. Blake — I do not. I happen unfortunately to have been the author of a General Law dealing with that very toi)ic. Lord Hkrschell — I do not thirdv it is suggested that it could not he dealt with by a General Law if thought necessary for the safety of the Dominion, but do you d< i- if not so thought that the Province might deal with it us a Local Law on account of the local conditions that did not exist elsewhere ? Mr. Blake — It was not with reference to any insurrection or outbreak that the law that I referred to was passed, but with reference to a habit which for certain reasons was getting more general of carrying })istols. The Lord Chancellor — Whether that is so or not, I think the answer Lord Davey made to you just now that the words " not merely local " would ai)ply there. If there is an outbreak in each particular Province that is not merely local I should take it. Do you affirm or deny that the Local I t if I . 238 Lit]iior J'rohllntloii ApfwaJ, 1805. LegiKlature would have a riglit to deal with the question of prohihition — putting it in the hroadest form — altogether ? Mr. Blake — I should have said they would not have power, that would he my view. The Lord ('hancellor — I thought that was your argument. Mr. Blare — Certainly. Lord Herschell — Both on the hypotheses that it was a matter recpiired hy the particular Province, and the Dominion Parliament did not think it necessary to deal with it V Mr. Blake — I suhniit we must not affirm that determination of the Dominion Parliament as to whether 'agislation is heneficial or otherwise on a j)articular topic, is to he otherwise than conclusive within their scope of action. Lord Herschell — No. Mr. Blake — If the thing is within their power, and they decide as a matter of })olicy that they ought not to legislate, that does not differentiate the case, as I suhmit. Th^y decide on the whole that it is not well to legislate, they r.xay prefer that Canada should he free rather than soher, i,o (juote a phrase used in another country. Lord Herschell — Does not section 91 point to this, that if it can be brought within any of the enumerated clauses, and it is legislation confined to the lo<'ality it is prima facie within the Provincial power ? At the t nd of the clause they draw a distinction between those enumerated clauses and the general words at the beginning. Lord Davey — I do not understand why you sLriiik from saying, Mr. Blake, that if the ci- cuniGtances of a particular Province — say where there was a large mining population, rather rough in their habits — rendered it necessary in that particular Province to restrict the carrying of firearms, the Provincial Legislature should not treat it as a merely local matter, though it might ])e within the jurisdiction of the Dominion Parliament to legislate for the peace, good order and good government of Canada generally. T/iijUDr Pri'liiliilion Apjuiil, IHSIO. '289 Lord Hkhhchell — I tliink I untlciHtaiul why Mr. Blake hesitates at that. . • Mr. 13i-AKK — I do not shrink from it in the least decree. If your Lordsliii)s ask nie the (piostion whether, when there is a distinct local as|)ect in which the local legislature deals with the suhject, I shouhl say the local le^nslature has the jurisdiction — I should agree. The difficulty I feel is in agreeing to the view that where the aspect is the same there is a^ douhle jurisdiction ; that I have not l)een ahle to see. The Lord Chancellor — T am not quite certain that T follow your phrase, •' the aspect." Mr. Blakp: — Borrowed again, my Lord, only l)orrowed. Lord Davky — Do you suggest the words hind the Board in their ultimate decision ? The Lord Chancellor — Whatever may he said ahout the ultimate decision of this Board, I protest against parti- cular })hrases heing used so as to hind it. Mr. Blake — I ventured to assume that your Lordships would understand the language that your Lordships had used. Lord Herschell — The language that this Board used it used secundum nuhjiicUou mute.riam ; and to detach a phrase that in a concrete case it used wi^li reference to a particular matter, and which it may he perfectly proper to treat in that way, as a sort of phrase that determines something with reference to another matter, I rather protest against. Mr. Elake — I agree, and I should be very sorry to do so. It will be found, I think, that it is used in a second case and after some years of consideration, as a general exposition of the princi})le laid down in Parsons' case ; that it is the measured and reasoned and considered language in which the Board sought to state and stated its definition. I think it says, " one purpose and one aspect, and another purpose and another aspect." I think it uses the two phrases. However, I think the meaning of what I have aimed at is plain -; ^i !ff HHBHH hbb ■■■III 240 Llqiiiir Pnthihition Ajypeal, 1895. ''•'Lord Herschp:ll — It may be very material to see whether, when you are eii(|niriiig with reference to trade and commerce, the object of legishition is to regulate and deal with the trade, or whether it has some other purpose than that, although it may incidentally produce some effect on that. I think that is a distinction. Lor'^. Watson — That word " aspect " which you used just now in those passages is not to be taken alone from those passages, for, if I mistake not, there are other passages in the same case which are corroborative of the meaning which you repudiate. Mr. Blake — One has to apply the same principles of construction as to these Judgments as are applied to sections 91 and 92. : :. ^^ Lord Herschkll — I do not think in this case we can lay down any proposition in such terms as to cover all cases and settle the coniines of sections 91 and 92. Mr. Blake — I agree, my Lord ; I should be very sorry to make the attempt. Lord Herschell — You may tell in a particular case whether or not it comes within it. '" ■' Mr. Blake — I was really rather anxious to present the view that there may. be a local aspect of some particular matter or subject which is different from some general nspect of that same matter or subject. Jjord Watson — In other words, that there may be local circumstances warranting local legislation which are different from the circumstances that prompt the legislation of the Dominion Parliament. Mr. Blake — But the local cause which proiapts legisla- tion and which indicates the necessity for legislation may be a cause of a nature which would justify the Dominion in legislating, though it had not gone further. That is what I mean. Lord Watson — In other words, the aspectb would in some cases be the same ? ' liif i^^ Liquor Prohihitum Appiuil, 1895. 241 m Mr. Blake — Yes, my Lord, if I may be" allowed to continue using the phrase. In that case, J say wherever I can find a different local aspect from the general aspect, and the effect of the Provincial legislation remains merely local and directed to that diflerent local aspect, not merely is that legislation good hut that legislation cannot he touched by the Dominion's dealing, unless it deals with it in the way in which, in an insolvency case for example, the Dominion would deal with it. Lord Watson — What do you say to this ? It has been said that in determining the nature of legislation you must look to what it does and to the effect it })roduces or is calculated to produce rather tlian to the motive of the legis- lation being passed. Mr. Blake-- -I suspect that where an Act of Parliament is passed, perhaps even if there be, but certainly if there l)e not, an absolute ex])osition in the statute of the object of the legislation, it would be \'ery difficult for a Court to determine against the legislation if the Parliament had any power whatever of any nature under which it could have passed the legislation. That is stated very clearly in reference to the (knada Temperance Act, on the point that its professed object was the merely social as])ect of the case ; and yet the Judges in the Court below held it good under the regulation of trade and commerce, and the fact of the Preamble indicating a particular reason win n might be a difficult reason to a[)ply Lord W^atson — I can quite understand that an Act like that might be j)assed in reality regulating trade, and with that view, but producing in the result teniperan(;e. Mr. Blake — Yes ; (piite so. Sir Richard Couch —But must not you look at the Act and see what it does directly and not indirectly ? Mr. Blake— I think you nuist look to what it does directly, and see if that which is directly done is within its l)Ower. Sir Eichard Couch — It may have some indirect operation, but you would not look to that, would you ? I'll 242 Liquor Prohihifioii Appeal, 1895. Lord "Watson — An Act might be passed for the regulation of trade, and the result of that Act might be to produce temperance. Mr. Blake — Surely, when you come to the enumerated powers, which I hope to reach some time Lord Hehschell — rTlie difficulty about that regulation of trade is this. In a sense, no doubt to say you shall only carry on trade within particular hours, within particular buildings, l)y particular persons particularly qualitied, is a regulation of trade, and nobody can dispute that, and yet this Board has held that it is not a regulation of trade within the exclusive power of the Dominion Parliament. j; » Mr. Blake — Certainly, I agree. Lord Herschell — And yet it is not everything that regulates trade in that sense. Mr. Blake — Yes, as I ventured to contend in the opening of my argument, there is a distribution of })Ower as to that which in the broader sense of the term mijdit be termed regulation of trade, and I said there were decisions of this Board that there are regulations within thepo\Nerof the Local Legislature, and that there are others which fall lieyond that and fall within the exclusive jurisdiction of the Dominion Parliament. 1 was about to make an (tbser\atiou nn what your Lordships said as to the effect of the final ])lirase in sec. 91. I would aslv the Court to consider that the express purpose and object of that last paragrai)h is to deal with the effect of enumtjration, aiul not to deal impliedly or indirectly with the effect of that which is outside of enumeration and within the general ])ower8 — " And any matter coniiii;^ within any of the classes of subjects enumerated in tliis section shall nor, he cleemed to come within the class of matters of a local or privute nature comprised in the emnneration of the classes of subjects by this Act assigned exclusively to the Legis- latures of the Provinces." The very purpose for which th(^ emihieration at any rate in part took place was to avoid doubt or conflict on certain subjects as to whether they fell within the one or the other, and that pur})ose would not be fully accomplished without an ' MHll • m Liquor Prohibit ioii Appral, 1895. 243 express provision taking the one set of specific provisions out of tiie operation of tlie otlier. Lord Herschell — Take tlie case of a postal service. A postal service strictly confined within the limits of the Province, that is to say, a postal service from house to house in Toronto for example would he a merely local matter if anything is, hut heing a ])ostal service it is not to he deemed to he merely coi\tined to that. That is a good illustration. That seems to he the ohject of it. Lord Watson — From the earliest cases down to the most recent I think it has always heen recognised hy this Board that within these sections there is a power given to the Dominion Parliament which, when exercised, ojjerates as an exception. Take the case of making a particular rule a rule of hankruptcy legislation, say affecting civil rights and illus- trating the civil law of the Pr^ vince, in that particular the law of the Dominion Parliameii would he exercised and the previous legislation in the Province with regard to the same matter must give way. Mr. Blake — Yes, I am ahout to trouhh your Loilship with a few remarks upon the last nistance of that ruling. Lord Watson — I think that was first i)ointed out by Sir Montague Smith. Mr. Blake — But at present I was just endeavouring to answer the suggestion made hy Lord Herschell. Lord Watson — In those cases really no except i en rxists in r&gr.rd to that particular matter until the Parliament of Canada has legislated. Mr. Blake — Yes, my Lord, I am going to trouble your Lordships with something upon that subject, but I would desire to say a word at present with reference to this para- graph at the close of section 1)1 to get rid of it, and at any rate, to say all I have to say about it, that it was indicated that conflicts would arisd Lord Watson— -I reniemlx^r in a recent case where the Dominion Parliament had passed a law wliich we considered fairly incidental to their powers to regulate Bankrui)tcy, we R 2 If' ' i; mmmm 244 Liquor Proliihition Appeal, 1896. ji held accordingly that that Statute was effective in the Province and ahrogated the (!onnuon law of the Province upon the Huhject. Lord Davey— And what constituted the evidence of a deht on which a person might he sued was affected. Lord Watson — Yes. Mr. Blake — The purport of the phrase at the close of section 91 is stated at pages 271 and 272 of 1st Cartwright in P((m)iiH' case to he practically the same, to complete the ohject of enumeration altogether. Cases of prohahle conflict and of douht were appr(4iended and enumeration was resorted to in those cases. Lord Hekschell — But more than that, surely. The effect of that provision at the end of section 91 was to exclude from suh-section 10 of section 92 certain things that otherwise would distinctly have heen within it. . Mr. Blake — I do not know, my Lord, that it was necessary at all. Lord Davey — Surely they could not trench on the enumerated subjects by passing an Insolvency Act, and by saying that it was merely local and only applied to the Province. Mr. Blake — Yes, but even apart from the phrase at the foot of section 91, I doubt whether they could have done that, because your Lordship will find in that portion of the section which precedes the enumeration this — " For greutor certainty, but not ho as to restrict the generality of the foregoing terms of this section it is hereby declared that (notwith- standing anything in this Act) " that is notwithstanding what is said in section 92. > ! Lord Davey — And for greater certainty still. ;: Lord Watson — They *\mt it for greater certainty twice over. Mr. Blake — Yes. Lord Herschell — Then this might be contended- -this •*,' ,.ii^«J WTOHPJ ' » 1 i i ■ Liquor Proliihitioii Appeal, 1895. 245 ;! : argument might be addressed to this Board with a good deal of force — that that was one of those subjects afiecting the Dominion, more or less, gc^nerally — that where it was merely local, for example a Postal Service within the Province, which did not go outside it, and only dealt with places in the Province, that was merely a local matter, and was not within the Postal Service as intended in sub-section 6 of the main section. Lord Watson — I think one of the oldest principles to be found is this, that notwithstanding the terms of that last clause in section 91 there are matters with which the Province can deal, which are not excepted from their legislative jurisdiction until the Dominion Government has proceeded to act upon the powers given to it by certain sub-sections of section 91. , ■ Mr. Blake — Yes, my Lord, and I }u-o})ose to deal with that topic independently. I submit with reference to Postal Services that there is another consideratinn altogether which applies. It is well known that it is absolutely essential- to the existence of the Postal Service that it should be a monopoly. The public are prohibited from carrying letters here. Lord Davey — It might be said that it was detrimental to the Postal Service between the Dominion and Foreign Governments, as somebody said about another section as to trade and commerce. Mr. Bi-AKE^ — Yes, but would somebody have been listened to? Lord Watson — It would apply to the different streets in a Provincial Town. Mr. Blake — Yes, and it would })revent its being possible to carry on a ])Ostal service at all such as is recognised here. Then my submission is that that is the purpose, and that no more is accom])lished in effect by the end of section 91 than to make surer the provision which was in the beginning of it with reference to the effect of the enumeration, and I say that it leaves the general language of section 91 just where it was. ■ • ( ^46 Liquor Prohihitiou Appeal, 1896. Lord Watson — In the case of a Postal Service in construing the meaning of the words, we are not entirely left to the terms of section i)l and section 1)2, hecause th'^re are provisions in the Act, if I mistake not, which vest the Dominion of Canada with the whole property, and everything that belonged to the Provincial Governments for the puri)ose of carrying on the past postal service. Mr. Blake — Yes, the works and Post Offices and Custom Houses and so on, and it shows, of course, what is meant by it. My suggestion, of course, does not go so far (and that idea has been repudiated by this Board) as to say that Canada could, by legislating for all or more than one Province, deal with strictly Provincial to])ics ; because that would be absolutely destructive of the Provincial powers, and the general result of it is that the federal system has, if I .may adopt the phrase, the defects of its qualities. There is a lack of universal legislative power in any one body, for all aspects and all places, and one has got to recognise that there may be a desirable uniformity which yet you cannot have, which you must sacrifice in order to obtain the compensating advantages of the federal system. Then I come down to this that the princii)le is that of two aspects and two purposes of legislation. For example, take the case of licenses for revenue. The express power of No. 9 is for the purpose of raising revenue, and it has been adjudged, I understand, that that limits the power granted in respect of licenses in that aspect ; that under No. 9, it must be for the purpose of raising a revenue. But that leaves the same matter subject to be dealt with in other asi)ects. Indeed it has been adjudged a subject to be dealt with in another aspect by the Province under — I do not know very well what to call it — but under what I have called the jwlice power ; and it leaves it to be dealt with under a still different aspect by the Dominion either under the general or under the enumerated powers, as we contend. How wideh to i.^e dealt with by the Dominion is one of the things to be disprised of, as also is the capability of its being dealt with by the Dominion under other powers and under other aspects. But what I submit is that the same subject cannot be treated by both under the same aspect, the only real difference ben^g that in the one case it w Liquor Prohihition Appeal, 1805. 247 is treated as within the Province, and in the other case as both within and without the Province. I fail to hnd the over-riding i)ower of the Federal Parliament which is some- times suggested Lord Herschei.l — I will tell you where it strikes me it is found. At present the Dominion Parliament has power to make laws for the i)urpose of the order and good government of Canada in relation to all matters not within the classes of subjects. Now if a matter can only be found in section 02 under sub-section 10, if you can shew that there is a Dominion purpose to be served by dealing with something existing throughout the Dominion, then I should say that it comes within the general Doininion power and would not be within the class of subjects prescribed, because it would not be merely of a local nature, but yet it might deal with the same subject matter which the Province could deal with itself as being merely local. When you say you see no over-riding power, t^at is where I see it, and where I tiunk according to Eussi'U V. The Qiicoi it exists. ■ Mr. Blake — I think your Lordshij) will find that it is not decided ; but indicated certainly. Lord Herschell — No, I do not mean decided. Mr. Blake — That is the only reason why I venture to submit this argument to your Lordship — that I do not think it has been decided. I agree that if you find some purpose or aspect, to use the phrases which have l)een used, in which ,'rom a Dominion point of view legislation should take place different from the purpose or aspect for which it is suggest'std the Province should legislate under merely " local or private " there is a right to legislate and there is no difficulty about it. What I contend is that when the purpose or aspect in which you are dealing with the subject is the same there is no right in both to legislate, and if there is such a right, I fail there to tiLd any ground upon which to say that the J)ominion power shall predominate. There is a provision that if it is within the enumerated powers it shall predominate, but there is no provision that if it is within the general powers it shall predominate ; and therefore you find and must, I submit, grapple with the proposition that there is then a couflict 'I,li; 248 Liquor I'nihlhitio)} Aftpeal, 1895. • 1 1 Lord Watkon — Your argument suggests that there cannot be a matter which is merely local in its nature and at the same time may be of interest to the Dominion. Mr. Blake — Yes, my Lord, that is a part of the argument unquestionably, and my argument is Lord Watson— And that if it be determined to be of interest to the whole Dominion so that the Parliament of Canada can legislate, it can no longer be regarded in the aspect of being merely local and private. Mr. Blake — No, and if not "merely" local and private, it does not come within section 16. Lord Watson — It is not "local and private." I do not think " private " has any application. Mr. Blake — No; I should have said "local or private." Lord Herschell— Supposing this matter had been dealt with by the Provincial Legislature as merely a local matter, and that then the Dominion Parliament had considered that it was a matter to legislate on for the whole Dominion, supposing that is so, and it passed a law with reference to it, of course the Provincial Legislature then could not contravene that Dominion legislation ; but does the fact that the Dominion can so legislate prove that the Provincial Legisla- ture never had the power to pass the legislation which it had passed ? Mr. Blake — I think if the Dominion always had the power the Province never had it. Lord Herschell — Then there is my difficulty. There is scarcely anything which it may be desirable and beneficial for a Province to deal with locally that might not become at some time or other a matter of Dominion concern and therefore one on which it might be necessary for the Dominion to legislate for the whole Dominion. That deprives the Provin- cial Legislature of all legislative power. Lord Watson — I should like you to deal with the matter in this aspect : supposing that the matter is rightly regarded as not of merely local interest to the Province but as of Llijtior I'rohihitloii Apju-nl, 1805. 240 ■ ; iH Canadian interest, and the Dominion Parliament legislate, and competently legislate, upon that footing, then does it necessarily follow that connected with that very matter there may not he local considerations — considerations which are local in their nature, and with which the Provincial Parliament can still deal, is that possihle ? Mr. Blake — If there is some other aspect or purpose in which the matter can he viewed. Lord Watson — You say that the purpose must not ))e the same. ■ .. . . . ■ . Mr. Blake — That is so. Lord Watson — Then you would deal with the present question in this way : you would say that this legislation is for the purpose of ohtaining sohriety, and that so long as you are legislating in that aspect you are within the field already occupied by the Dominion Legislature. But on the other hand may there not be some aspects of that question which are local and require local treatment, and only warrant local treatment ? Mr. Blake — I do not know, my Lord ; I fail to apprehend why. Lord Herschell— It may be necessary for the safety of the Dominion to have at least certain temi)erance provisions, we will suppose, in operation in the Dominion. Suppose those are necessary for the Dominion. On the other hand there may be Provinces where it would be for the Province's advantage that you should have legislation of an even more stringent character. I do not see any difference between the two. The law was merely local and was not considered necessary, and we will suppose it was not necessary and would be more than was needed for the Dominion. But what is there inconsistent with that, that in the Province something more is needed. Mr. Blake — The subject is the promotion of temperance. Lord Herschell — No ; the })iomotion of temperance is the intermediate object, the subject is the welfare and well- being of the community, and that they should not be m Ifm '250 Liquor I'ntlulntioii AftpeaJ, 1895. troiu)led with the results of (h-nnkenness. It is not the morality of the individual or the making of him temperate. The Lord Chancellor — If that aspect of the case (I designedly use that word) is regarded, it will he necessary I supi)ose to ascertain whether tiie facts of the particular Province were such as to justify it. Your contention I (juite follow. You say the sul)ject matter itself is one which is for the Dominion. Mr. Blake — In this concrete case I have a decision in which the suhject iuatter has heen adjudged to l)e for the Dominion, hut, of course, I am dealing generally at the moment with the principle. The Lord Chancellor — I was not dealing with that for the moment, hut with the hypothesis of a local want. Supposing it is so, in order to justify the legislation it must he the Provincial circumstances which justify Provincial Legislation. If so, those facts ought to be before us. Mr. Blake — Yes, but what I maintain is this, that if you grant the premises that the subject is within the jurisdiction of the Dominion, the Dominion arm is not so shortened, but that it is entitled to look at the condition and circumstances of the people throughout the whole or in any part of the country ; and if varying circumstances exist with reference to the evil requiring varying legislation in different parts, it is entitled and is bound to apply the proper legislation for the remedy of the general evil. Lord Herschell — That I think is a very difficult ques- tion — a very difficult question. If there is anything clear, it is that this legislation in sections 91 and 92 was to give the Provincial Legislature power to legislate for things within the Province in so far as it was necessary to keep them to a Provincial Legislature. One cannot shut one's eyes to that because it is exclusively ex hi/potlicsi of a merely local character. Now, may not you have a thing which, in a particular aspect, to use your word again, is of general interest to the Dominion Parliament, although the ultimate end is the well being of the community, the same end ? W"'i4i,i Jjiiiuor I'rohihitioii .Ifijual, IHIK^. 251 Mr. BiiAKE — Of course it depeiulH upon the kind of aHi)ect, as your Lordship puts the question. Lord Hkrschell— Take this very kind of question tluit we are considering^. Siij)posin},f that th(> icf^Milalion l)y what- soever means of tlie sah' of intoxicatin<^ Hquors is a thin<^ not intended to l)e dealt with hy any of these Provinces, hut tiiat the intention was to leave it as a niattcn- to he dealt with hy the Dominion Parliament for the whole of Canada, one has certainly to look at the condition of things hefoi-e the Con- federation when different l«>gislation is passed ; and, looking at the scheme of this Act, one would hesitate a good deal to say that that was the intention of thc^ Legislature*. If there was anything to ju'ohihit drinking except under certain restric- tions it was not a Provincial matter perhaps, hut to say that the Dominicm Parliament should undertake it for the whole of Canada, aiul that the Province could not deal with it for the purpose is a strong j)roposition. The Lord Chancellor — But do you admit that the Canadian Parliament could not })rovide for the particular case of a particular Province ? Mr. Blake — No, my Lord, I do not. Lord Hersc'hell — I know you say it could, hut that is what strikes me as strange. Ijooking at the scheme of this legislation- -I am supposing now it is not an enumerated thing of course. Mr. Blake — Quite so. Lord Herschell — Supposing it is not an enumerated thing, and it is in the particular Province, one would think unless it were thought to he necessary to deal with it else- where it was a merely local matter — the restriction of the sale of intoxicating liquors within the Province. Lord Watson — But if you carry it to a certain length, the difficulty is to get an enactment within tlie Province which jjroliihits any person living in a town (even if he were a Memher of Parliament) from getting drunk. Lord Herschell — If you limit the hours within which ^M ^ 262 TJquor I'rokihitlon .\i)p<'nl, 1895. he (;iin get it, it iH not merely provincial, and in that sense nothing is merely provincial. The Lord Chancellor I do not know ahont that. Rome restrictions with n-ference to piirticnlar hours or places may he (jnite intelligihly provincial and restrictions not involving general application. Mr. Blake— Quite so. Lord Herschell — But still it might affect other Provinces in regard to people who happen, fov the time heing, to he there. Mr. Blake — Yes, hut in dealing with these powers you cannot define too much. You must deal uj)on hroad and general considerations and the mere circumstances that casual visitors, even Mend)ers of Parliament, unless, indeed, there is a law providing for their innnunities Lord Watson — I do not think it can he seriously suggested that regulations for the henefit of those within the Province, which necessarily affect strangers coming into or passing through it, make it less provincial. Mr. Blake — No, my Lord. It is supposed that when they come they will he amenahle to the laws which suit the people who live there all the time. The Lord Chancellor — You nnist deal with it from a common sense })oint of view. Certain })ersons may he of a very austere nature perhaps, and insist on a fast twice a week and })roliihit food, and in that case T should have thought that that interfered with the general right to lil)(^rty through- out the whole Dominion, and it would he an infringement of the rights of the rest of the suhjects of Canada even if it professed to he applicahie to a particular Province. Mr. Blake— Yes, it would tend to depopulation of the Provinces, I fancy. The Lord Chancellor — I think so, too. Lord Herschell — This was a matter which had been in every one of these confederated Provinces differently dealt with by the Provinces, and if it was a matter that was w w Liquor VrnhHition Appeal, 1895. 263 intended to be taken from tlie I'rovinceH and put in the Dominion one would have expected to Ihid it in one of the Hi)ec'iHcally enumerated clasHes in chiuse 5)1. It is not like a new thing which has arisen, one of these Provinces. There was lej^islation in each Mr. Blake — Yes, my Lord, hut the legislation which existed in each one of these Provinces, speaking of it generally, was of the same character. The general character of the legislation was that which has heen described for the n^gu- lating of the traffic or trade in connec^tion with licensed houses. Lord Herschkll — One was the very ''onditions which you say now come in question. Mr. Blake — Yes, one was, but only one. Now I submit that the generally exclusive character of the Provincial ])ower nnist be recognised and upheld l)y repudiating the doctrine of double jurisdiction in the sense I have indicated ; and, before passing in a moment or two to the decision to which Lord Watson has more than once referred on the incidental powers, I wish to refer to PX hy whom could that law he changed, hy whom could it he n^pealed, hy whom could it he su[)i)l(nnented ? By the Parliament of Canada and hy it alone. ''Vhat I venture to suhmit is that this theory of construction is not affected by decisions such as that in Ciixliiiitj v. Dupiiij, and the later insolvency cases. In arguing that case I was asked hy your Lordships, and your Lordships in argument expressed a view which is clearly in accordance with the Judgment in the case ; I was asked whether I contended that anything which necessarily came within hankru|)tcy and insolvency could he the suhject of legislation l)y a Province notwithstanding that there was no Domhiion legislation on the suhject. I could make no such contention ; I was obliged to acknowledge that whatever really came within bankruptcy and insolvency was exclusively within the power of the Dominion and could not he touclied by a Province. Lord Watbon — You cannot say what may and what nuiy not be incidental to legislation. Mr. Bi.AKK — That is the point which your Lordships decided. You said you would not define all tluit was covered by the words, but you did find what were some essential elements of bankruptcy and insolvency ; and you found that this law did not come within those essential elements. More than these essentials might i)Ossibly be embraced as ancillary m m I .1 •^rsrsssssassBtstr 258 Liquor Prohibifimi Appeal, 1895. in a Bankruptcy and Insolvency Act ; and therefore there was an elastic margin which might or might not he trenched upon in tlie exercise of its main power to deal with hanki'uptcy and insolvency hy the Dominion Parliament, thus touching a suhject which came within property and civil riglits for that other purpose and in that other aspect. In the exercise of this its [)ower to deal with hankrui)tcy and insolvency what would the Dominion Parliament do ? It would cut out for that jnirpose, and hi that iispect some suhject which was otlierwise within pro])erty and civil rights. It would not cut it out altogether, it would not annul for all other purpf ses and under all other as})ects the rights of the Provincial I-iegislature : the rights of creditors, the rights of contract and the mode of })ayment and all iliat would remain. Lord Watson— Would it touch the right of creditors except in matters of insolvency '' • . Mr. Blake — No, my Lord ; and therefore the suhject came to he considered in two aspects, the aspect of the right when insolvency did not exist, and of the right when it did exist. Tiie suhject was carved into two — the one was exclusively Provincial and the other exclusively Dominion. There was in one sense an over-riding of the legislation, hecause in one as2)ect the suhject of the legislation would cease to he Provincial and the legislation would no longer extend to it. It came within hankruptcy and insolvency and ceased to he within local jurisdiction ; and for that reason the Provincial law no longer applied to it, hut the Provincial law remained ap})licahle to all other cases. That is the principle on which those cases were decided ; and it is not inconsistent in the least degiee with the view which I })resent to your Lordships. It is simply this, that if you look to the character of the powers it is impossihle hy anticipation to define the precise limits of them Lord Watson — There the legislation of the Province to be well exercised would require to he applied to solvents and insolvents alike ? Mr. Blake — Yes. If you could find that the legislation of the Province was ex})ressly directed to insolvency. n fjiqitor Vwhihitiini Appral, 1895. 259 Lord Watson— That insolvents if not so. law niiglit cease to ai)ply to Mr. Blake — Yes, it might. Lord Davky — ]^)nt in some case, the name of which I cannot remendter, it w.is iit>ld that a Province' could pass a law winding up a particular company. Mr. Maclaren — That was r.ne case of //' Ciiioii St.Jitcqiws (k Motitiral V. Ili'lislf, 1 ('artwright, [). ()8. Mr. Blake — The })rinci[)le of that case was to that effect. Lord Davey — Yes. The head note says : — " The Act of the Legislature of Quebec {HH Victoria, c. 58) for the relief of the Ai)pelliint Society, then (as appeared on the face of the Act) in a state of extreme financial embarrassment, is within the legislative capacity of that Ijegislature. The Act was iield to relate to ' a matter merely of a local or private nature in the Province,' which by the92n(l section of the Hritish North America Act. liS()7, is assigned to the exclusive competency of the Provincial Legislature ; and not to fall within the category of bankruptcy anv Appnil,lH9ri. Mr. Blake — Quite so.' The Loud Chancellor — And could only be local. Mr. Blake — That is so. Lord JJ.ERSCHELL — Take other things mentioned there, because you refer to other things — it does not mention only the liquor question. Supposing that in a i)articular Province there was a provision tliat diseased animals, or animals certified to be diseased, should not go to particular markets, do you say then that that would be extra-i)rovincial — beyond the power of the Province ? - , Lord Davey — You do not say that, do you ? • Mr. Blake — I think there is a general law u])on that subject if I remember rightly. •:■■ • Lord Davey — But supposing there was not ? Mr. Blake— I do not think so. I do not propose to say that there may not be nuiriy of these topics so dealt with within the proj)er limits of local regulation as to the difterences of condition in larger and smaller connnunities and which yet may not be in all aspects local . I do not say that you may not have the greatest difficulty, when a concrete case arises, in drawing the line, between what is in the view of Hodijf V. 'llic (Jiii'cn as your liordsbips exi)ressed it local and what is not. But what I do say is that there the ]:)rincip]e on which the line is to be drawn is to be found. It is to be drawn in each case with reference to the princi[)le laid down in Hoihir v. 'I'lir Qiurn, and, when once drawn, you hnd a purpose and as})ect local which gives jurisdiction exclusively to the Province, and beyond that puri)ose and as])ect the subject is within the Dominion jurisdiction only. Lord Herschell^ — I have at present a difficulty in seeing a distinction in principle between any amount of fetters which might be put on drink for the well-being of the connnunity and the final fetter which, prevents the sale of the intoxicating liquor. The ol)je(;t and aspect appears to me at present to l)e in both cases the same, namely, the well-being of the comnninity and good order, all of which are supposed to be endangered by excessive indulgence, and all these steps have [jlqiKir PnililhitioH Jpiical, 18U6. 2()8 '!f' in view the diiniiintion of wliat is inconsistent with the well- being and good order of the eonnnunity. Mr. Blakf:— I should have thought, in another aspect of this case, as your Lordshii) and sfneral niemhers of the Board pointed out, that thei-e was the greatest possible fundamental difference between regulation and absolute l)rohibition. Lord Herschell— Fo]' some j)urpos(^s there is a funda- mental difference. But as to the pm'[)ose and as))ect ])eing one thing or another, if you regard the aspect of prohil)ition, as stated in lliisfti'll v. The Qinni, in the words you have just read, namely, the well-being aiul good order of the connnmiity, I do not at i)resent see any difference in aspect between the object of })rohibition and the object of restriction. Mr. Bi.AKE — My sacred words, I think, read " aspect asid purpose " or " purjjose and aspect." Lord Herschell — " Aspect and puv[)ose." The aspect and purpose is the well-being and good order of the conmninity I think. Is not that the as})ect and ))ur})ose of the restri(ttive legislation with regard to li(pior ? How does the asjx'ct and purpose differ ? When you are dealing with such words as regulation and so on, I can understand that there is a distinction between regulation and prohibition. Mr. Blake — ^T should say that the as})ect and purpose with which the local Ijegislature was adjudged to have a power in Hadf/c v. 'Ilir (Jiicrii was in reference to the different local conditions arising in small comnnmities, such as cities, towns and villages, and so forth, for the preservation of local order in minor matters ; and although it may be extremely difffcult to say that preservation of local order is a min(;r and minute regulation, and that it is not engrafted upon the same view which is directed to the prevention of drunkenness and the i)reservation of decency, and which is directed to a kee])ing up of morality, yet tluit is the distinction upon which, us I understand in HuhxcIFs case and Ifodgc v. 'Ilic Queen, the Court held that prohibition was within the Federal poM'er and certain regulations within the local power. Lord Herschell — I do not think they said that was so. u:3 264 Liijuoi' I'roliihitlon .i/i[iriit by liiic, pcnalfcy, or iiMpriHoiiiiiciiL foi' oiiforciii;,' iiiiy liiw of tliu inoviiici' laiulo in rclutioii to any niiittiT coming within any of the chissc of subjects cnnnu'iatc^d in this section.' No doubt this argument would be well founded if the princinal nuitter of the Act could be lirouf^bt within any of these classes of subjects ; hut as far as they have yet gone, their LoidsliipH fail to .see thi.t this has i)een done." and then they eonie (|)age 24) to suh-Kection lO of section 9*2 : "Ge c^rally all matters of a merely local or private nature in the Province " — " It was not. of course, contended for the Appellant that the LegiHlatun of Ni>w Brun.swick could have passed the Act in (juestion, wliich, embraces in its enactments all the Provinces ; nor was it denied with respect to this last contention, that tli(> Parliament of ('aiiada might have [lassed an Act of the nature of that under discussion to take eli'ect at the same time throughout the who'e Dominion." Your Lor(lshij)s ^ee the character of the contentions. Of course it was not contended for the Appellant tliut the Lef^'islature could have passed an Act which went heyond the legislative limits of the Province, nor, as I understnnd the whole Jud^nnent, does it proceed sim})Iy U])on the proj)ositi()n that the inahility of the Legislature to pass an Act which extends l)eyond the Province confers jurisdiction of itself u))()n the Dominion if the suhject matter of the legislation he in itself local— "' Their Lordships understand the contention to be that, at least in the absence of a general law of the I'arliament of t'aiuubi, the provinces might have passed a local law of a like kind, each for its own Province," Lord Hekschell — That is at least " in the ahsence," and that seems to indicate the view which was within the mind of the Court. M fit y| Mr. Blake — I quite concede that there are indications of that l)eing in the mind of the Court in this case. All I ventured to say was that I did not conceive that it had heen adjudged, I (juite concede that — " and that, as the prohibitory anil penal parts of the Act in ques- tion, were to come into force in those Counties and Cities only in which it was adopted in the numner prescribed, or, as it was said, ' by local option,' the legislation was in effect, and on its face upon a matter of a merely local nature." »<^pp 200 Liquor I'rohihiliofi Appiul, 1896. Thoii tlip Tud^niiciit of Chief JuHtiee Alh^n is (inoted, and tlieir L()r(lshii)s coiitiiine :— " Tlifir Lonlsliips cannot concur in this viuw. The (Icciiiri'd object of Parl'inient in panninf^ the Act is that there shonld hv uniform legishition in all the provincew respectinj,' the tniHie in intoxicating licpioi'H, with a view to promote temp(>rance in the Doiiiiiiion. I'arlia- ment does not treat the promotion of temperance as desirahle in one province mori; than in another, but as desirable everywhere throughout the Dominion. Th(< Act, as soon aw it was passed, became* a law for the whole Dominion, and the enaetnients of the first part, relating to the machiru'ry for bringing the second part into force, took ell'ect and miglit be put in motion at once and everywhere within it. It is true that the prohibitory and penal parts of the Act are only to come into force in any County or City, upon the adoption of a petition to that ef!'ect by a nmjority of electors, but this conditional application of these parts of the Act does not convert the Act itself into legislation in relation to a merely local matter. The objects and scope of the ' legislation arc still general, vi/., to promote temperance by means of a uniform law throughout the Dominion. The nmnner of bringing the prohibitions and penalties of the Act into force, which parlianu^nt has thought fit to adopt, does not alter its general and uniform character. ' Parliament deals with the subject as one of general concern to the Dominion upon which uniformity of legislation is desirable and ^he Parliament alone can so deal with it." There again is an indication sncii as your Lordship has suggested, I quite admit — - " There is no ground or pretence for saying that the evil or vice struck at by the Act in ([uestion is local or exists only in one province, and that Parliament under colour of general legislation, is dealing with ,,. a provincial matter only. It is, therefore, unnecessary to discuss the considerations which a state of circumstances of this kind might present." , Their Lordships do not therefore intend to decide what would he the result in tliat state of things— "The ^^resent legislation is clearly nu'ant to apply a remedy to an evil which is assumed to exist throughout the i)onHnion, and the local • option, as it is called, no more localises the subject and scope of the Act than a provision in an Act for the preventio'i of contagious diseases in cattle that a public officer should proclaiiu in what districts it should come into cii'ect, would make the Statute itself a mei'c local law for each of these districts. In Statutes of this kind the legislation is general, and the provision for the special application of it to particular places does not alter its character." ■ , Lord Watson — The , ,ii favorahle words to you in this Judgment which you ha ^ just read, as far as I can see, are Liiinor I'rohiliition Aftftcul, 1895. •2(57 thfiHe, " lV[(ittprH iiH to which miifoniiity of U'<,'iHliiti(»ii is desinihle." Mr. J3lake— Yew, my fjord. '* imit'onniiy of h'^nshitioii." Ijord Wathon — ThtTc arc other |)iissjif,M's which tend the otlicr way, hnt tiiat seems to ^'o in your hivor as indicating that that is one of the ohjects which the Dominion Parhament waH entith'd to contemplate and act upon. Mr. Blake — Yes. ,. Lord HEUsciiEiiL — Is it uniformity in any otlier sense except as a law a|»plicahle to the whole Dominion. It mij^dit he a|)plicahle to the whole, hut certaiidy in relation to tem- perance its o|)erat.'on was not uniform because it depended upon who took advantage of it. Lord Davey — I sup})ose you are going to argue at some time or other that the Dominion Parliament luiving passed the Canada Tenii)erance Act, did as it said occupy the field. Mr. Blake—Ycs. ' Lord Davey— Whatever might be the case if there were no Canada Temperance Act, the Provincial Legislature is thereby debarred from legislating on the same subject. Mr. Bt-ake — It is inii)ossible for the Provincial Legis- lature, the subject having been compc^tently legislated on, as adjudged by this Board, by the Dominion Parliament, to legislate on it again. That was competently done. It is not merely that it is professed to be done. The Lord Chancellok — I suppose you would say that the passing of the Act which rendered it competent to them to adopt it or not was an Act which in its purport and effect showed that the Dominion Parliament did not intend that the Provincial Legislature should legislate on that subject against the will of any minority of inhabitants. Mr. Blake — Yes, my Lord. Lord Hehschell— But supposing that the Dominion Parliament has come to the conclusion that it is for th(! good order and the well being of the whole of Canada that teni- !» 268 Liquor I'rvhibition Appeal, 1895. pcrance should l)e at least proniotefl to a certain extent in a certain way, is it necessarily inconsistent with that that a Provincial Legislature might supplement that legislation by other legislation because it is considered that in some par- ticular Province there was more urgent need ? Mr. Blake — I was about to consider that very point which your Lordship has put to me. Lord Herschell — Of course they could not legislate inconsistently. Mr. Blake — For one moment, before passing to that, I wish to point out to your Lordshij) what has been taken out of controversy by these passages of the Judgment which I have just read. First of all, that the law which is passed is a general law — and that it is a general law notwith- stiuiding its adoptive nature ; that the opportunity of uniformity it gives by making a provision under which in various local comnmnities all Muough Canada it might be put in force is a sufficient, generahty and a sufficient uniformity, if generality, and if uniformity are required in ord(n- to the exercise of the Canadian legislative i)ower, propositions which 1 respectfully dispute, but if generality and if uniformity are required, this Act is general and uniform : it is general and uniform although it merely provides a machinery by which different localities within the Dominion may at their option and election, evidenced in a particular way, use the provisions and put them into force ; it is adecjuately general and ade(juately uniform though ex Unic it ct)ntemplates the probability that it will not be universally ap))lied, — though the particular conditions which it pro- pounds are conditions which indicate in the mind of the Parliament a probability that it will not be universally a})plied ; and that conse(juently its actual })vactical operation will be diversity instead of uniformity, — that at any rate (which is sufficient for my purpose) it is possible there will be diversity instead of uniformity. [t is adecpiately general and adecpiately uniform although it recognises the view that the condition of things in difierent })arts, not merely in differed it Provinces but in different parts of each Province of the Dominion, may so differ that the pv. notion of tempe- \l 11] Liquor Pnthihition Appctil, 1895. 209 . ranee, the accoinplislimeiit of the ohjcH-ts whicli the h'j^islature had at lieart and was (h.sirous to promote, would not he achievtnl hy its \mn^ po: mto operation, that a ^'eneral sweeping enactment proviiUng that it should come into force all over or in any particular locality or over a Province might he instrumental to the ohject in view, that is the promotion of temperance, that unless the test was successfully applied of a local demand supported by a majority at an election, there ought not to he this restraint, this pi'ohihition which, on these conditions, and on these (!oiiditions idone, it was intended should he applied. The Judgment does not indeed decide that the power of Parliament is limited as })ossihly may he the case here. That point is ex[)ressly res<'rved ; hut what is decided is that while the power of Parliament to he competently exercised, should he exercised generally all over the Dominion, this law whose practical and contemplated operation was not generality, not uniformity in ap})lic!ition and in operation, was yet a competent exercise of that power. Lord Davey — It is uniform because it gives the same option <.o every county in the Dominion. Mr. Blake— -Quite so, it is uniform in that sense ; it gives a power to apply it to every place, but its tendency in fact would l)e to j)roduce diversity instead of uniformity in the laws by which the subject is bound in each part. The Lord (Chancellor — I suppose you might say further that if a Provincial law prevails and it prohibits, it would come to this thab wviereas the determination was left to the Provincial LegisJi.ore, according to (Janadian legislation each person has the right to have it one way or ilie other, the Provincial Parliament takes away the right. Mr. Blake — Certainly. I say you find ("nnadii divided into Provinces and of conv..e each Province divided into a lot of counties, each one of these counties is given a right to decid(^ whether this law shall come into operati( n in its bounds ; if the law conies into ojieration or if it is rejected on the vote that means that the condition siands for th(> jx'riod of three years, that it has a rest or a trial. At the end of three years the inhabitants of that locality may apply for a repeal, and then a new election takes place and it is dec ided 270 :l|i? Liquor Prohibition Appeal, 1895. whether there shall he a repeal or not. If on the original (^lection they fail to })aHs the law. or if upon the proposal for repeal they fail to pass the i-epealing law there is three years rest in that condition and things so remain. If the repeal is passed there can he no further eftbrt to pass the prohihition law for three years. So that tlie j)eo])le have an interval of three years under one law or the other. Each locality is given hy the machinery which the Dominion Legislature thought hest ada])ted for grappling with that evil, hy the provision of those tests wiiich the Dominion [jegislature thought th<> ellicient tests for determining whether it was l)est that total })rohihition siiould take place, amjile and adequate provisions to meet the (;ase according to the view of the Legislature v/^hich has {)aased the Act and has provided the means for putting the Act into force, for keeping it in force, for taking it off and putting it on again. Lord Hersohell — That argument of yours would apply to nothing except ahsolute prohihition would it, hecause the Legislature has only provided that it is to he enforced where the majority adopts the Act ? Does that excliule all right to legislate for anything other than [jrohihition ? In every place that does not adopt the Act, where they do not apply pre hil)ition, is the local Legislature powerless to maky stringent regulations '? Lord Davfa' — Mr. Blake says if it did so they would apply only to the majority. Lord Hersohell — The practical case put to us is that you shall not sell except in certain quantities, that is not total ))rohihition. The Lord Chancellor — But that is taken from the Canada Temjx'rance Act, as I read it. (I may he wrong.) An altogether different question arises on the suhject of prohihition. Lord Herschell — Take the last one. Sir Richard Couch — The 18th section i)roliihits altogether. Mr. Blake — Yes. Lord Hersohell— Only in certain places, that is in shops ;!^l Liquor Prohibition Appeal, 1895. 271 and i)lacps other thiui houses of pui)li(' entertainnicnt. It does not prohiljit it iiho«j;ether in houses of pnhHc entertiiin- meut. It provides limits us to the (]UiUitiiy that may Ite sohl ; that is what ii; does. It stops short of uhsohUe jtrohihition. Sir KicHAKi) Couch — It is for prohibiting the sah' in certain phices. Lord Heuschell — Yon may not sell, it says, excei)t i" certain phices, and in those j)hices yoii may sell it in not U»ss quantity than twelve bottles, but that is not the same })ro- hibition which would come into operation by the adoption of the Act — it is something different. Air. Blake— For the nu)ment I would ask your Lordship to disperse me from discussing the 7th question. Lore Herschell — But that is why I [)ut my (juestion — that yor: argumeTit would only a[)ply. would it not, to the case of absolute [>rohihition which is provided by the Canada Temperance Act, where the Act is put into operation. What I mean is this ; Is your argument this, that the Parliament of Canada liaving enacted that in any district a certain nuijority may stop the sale altogether, that precludes any regulation of the traffic short of prohibition in those districts ? Mr. Blake — In that general statement of it I would not agree, because there may he minute r(>gulations. Lord Heuschell — But I do not want minute— take big regulations, but short of prohibition. Does the fact that the Parliament of Canada said that wherever peo})le want to prohibit by a certain majority there shall be prohibition, exclude all imwei- of regulation of the traffic short of [)ro- hibition in these districts ? Lord Watson — That depends very much on the way you read the Act. It is one thing to say they have enacted that they shall do so and so, and another to say that these persons shall have the privilege and option of deciding for themselves, and no other person shall say whether this Act is to be adopted. Lord Heuschell — The determining whether the Act is t|:. mssma I 272 fjiquof ProhUtiiiim Appcul, 1805. to he adopted brings i)i the (jnestion of prohihition, and does the adoptiiijj( of prohil)ition necessarily exehide all legislation short of i)rohil)ition ? I^ord Watson —The question then arises — and this is one of my numerous difficulties in this case — is not additional legislation or su})pleniental legislation a practical repeal of the option given by the general law'?, Is it or is it not? That is only a (]uestion. T am not indicating any o})inion upon the [)oint, hut it seems to raise that question shortly. Mr. Blakk — Quite so. T submit that there is here a determination on the part of the I'arlianient of Canada to take up the question and to legislate upon it. Lord ])avey — And they believe that it is a question for the good government of Canada. Mr. Blake — It is a question for the go^d government of Canada. They have competently dealt with it, as is adjudged. They have decided that on particular conditions and in a particular way Lord Watson — You see that really comes to thip. The sanu' difficulty would not have arisen, as far as I am concerned, if, professing to deal with the whole question, the Parliament of Canada had directly enacted that they should he subject to no restriction unless they chose to use this Act. Now, have they in substance done that or have they not ? That is the first question. Lord Herschell — Has not flodiji' v. Tlif (Jiitrii said that they have not done that, because IhKbjr v. Ilic Qturn lias said that in districts where it has not been adopted and where there is therefore not prohi!>ition, it is still competent for the Provincial Legislature to enact regui'iti(>.';s as to times and places within which drink may be sui)plied. Mr. Blake — Certainly, within certain limits. Lord Heuschell — I will deal with limits presently ; l)ut the fact that they can do it at all indicates Mr. Blake — But the Canadian Parliament has not said that there shall be no legislation in reference to it. .Jf^^^!^^■^^)^ l| | l ^ij^'■^^».^^^^^JJW^I^ | ||^^,■^l^■ 11ii^. Liquor Prohllntioii Apjiral, 180/5, '273 Lord Watson^ — 1 rather think tlie ol)s«>rvati()n iiiado in that case points to regulation as sonu'tliing different from prohibition. No loubt it may involve prohibition, but it points to something which is in substance merely regulation. Mr. Blake — Just consider the point and the observation in Hodfjf V. 77/^' Qmm. They said where the Act had iu)t been locally adopted, and in Toronto that was so, the traffic is still permitted, and is being carried on ; and it would have been absurd to contend that, while the Dominion Piirliiunent had not taken such steps as would effectually i)rohihit the traffic in the city of Toronto, and had left it a legal traffic, the powers, whatever they may be Lord Herschell — That was precisely my (piestion — whether all powers therefore short of prohibition, v/liich is involved in the Act when adopted, were not consistently with the Act still left to the Provincial Legislature ? Mr. Blake — Nay, my Lord, because I am dealing only with those areas in \\'l^iich the Canada Temperance Act had not been nut into operation. Lord Herschell — Exactly : that is what I put to you. Mr. Blake — I thought yoiu- Lordship was dealing with all the areas. Lord Herschell — In all the areas where it has been [lut into operation prohibition exists. Mr. Blake — Nominally. Lord Herschkll — But you must assume that it is on nifcr or is supposed to exist. The question was directed to ifeose ])laces where it was not adopted, and notbing interfered with it at all, and whetber that did not leave open lo the Provincial Legislature at all events everything short of prohibition ? Mr. Blake -That may be so within limits as I have MiMre said ; l)ut if your Tjordship would permit me to reserve my answer to that tJl I come to Hodfi^s case, I should be obliged to your Tjordship. It is a difhcult (]uestion which I am not prepa^-ed to deal with as fully at this stage of the I ■ijiSSiJr- mimm mmmm 274 Liquor Prohibition Appeal, 1895. argument, I say frankly, as I slioukl desire. But I do contend that the Parliament of Canada has done these thinj^s as effectively, as Lord Watson suggests, as if it had done wiiat I suhmit it was not called upon to do, as if it had said there shall he no other interference and no other condition imj)osed hy any other hody with reference to this matter. I contend it for one reason which excludes all others ; and for a second reason that because the Parlianient of Canada had com- petently delared that this was a general matter, and that, therefore, it was no longer merely local or private, therefore there is no other authority to compete, and it there was authority to comi)ete, I say that when the Parliament of Canada provides conditions under which the thirg may he put into force in different localities and kept in force and repealed and so forth — I say that it as exhausti^■ely deals with the whole topic as if it had gone on to say that it shall not he done in any other way. But that was not necessary hecause the language of the Act itself shows an exhaustive dealing so far as prohihition is concerned. Lord Davey — You sa.y where the Parliament of the Dominion has dealt with the subject, the Provincial Legislature cannot deal with it in the same way ? Mr. Blake — Not in the same aspect. Parliament has said this subject of temperance is a subject for the good government of Canada. They are adjudged to have the right to say that, and they have dealt with it as the good govern- ment of Canada in their judgment required. The Lord Chancellor — Shall be subject to local o))tion practically. Mr. Blake — Yes, and the local option which they prescribe is the only local option which can be passed with reference to that subject. (Adjounint for a short tivic). Mr. Blake — Then, my Lords, let us consider if your Lordships pleast> for a moment what kind of legislation, what other methods for putting sucli an Act as the Temperance Liquor Prohibition Ap/vai, 1895. 275 Act into force would cleiivly and ol)vionsly 1);^ within the power of the Doniinion Piirlianient, would he good Dominion legislation luiving the sani(^ effect which, \ suggest, follows from the Dominion heing ca.])al)le of taking up tlu' suhject at all. Of course it could |*ass an Act providing total prohihition for the whole country ; hut it might also provide for proliil)ition in each Province at large, and that either hy a plehiscite of the whole Provinces the electorate of th(> whole voting instead of in hodies, or on condition of a resolution of the local assembly or on a })roclamation of th(> Lieutenant-Governor, all local methods for })utting the Act into o[)eration, clearly, on the principle on which this x\ct is held good, within the competency of the Canadian Parliament. ()r agiiin that Act might he put into force on a resolution of the House of Commons, or on a proclamation of the (rovernor-General — Dominion })owers. P]v(>ry one of these suggested pro[)osalH would be a less minute and less a local option system than what is held good ; and the conclusion is, as I submit, that if the Parliament conceives that the peace, order, and good government of Canada woukl be served by providing for }>roihibition when-'ver local option favours it, and setting up ''conditions on which it should be put into force, it can so act, and exhaust the subject thus. It can say therefore we will stop the growing i)lague where the conditions in our judgment show that })rohil)ition will stop it. Then that seems to me to take this particvdar concrete case entirely out of '' merely local or private." It is adjudged to have been effectively declared to be an evil general in its nature, alst) more or less developed in Caiuida here and there, but certainly not on Provi:5oial lines. In parts of any Province there may twe a ;'ondition where the Legislature has thought benetit would rt^ult and the evil would he checked by i)utting the prohibition into force. In other parts no such results may arise, and thus enough ap[)ears to show, ajjart. from " merely local or private." that the Provincial jurisdicti(/n is non-existent, because it has been shown to be in this particular case a general evil witliin the jurisdiction of the Dominion. There are other reasons, as I sul)mit, why it cannot be within " merely local Of private." Take the (piestion of importation. I think your Lordships rather indicated in the course of the argument that that must be held to l)e outside " local or 276 Liqnor I'rohihition Appeal, 1895. illi private," because it affects the exporter, it affects other Provinces, and also l)ecanse it affects the revenue. Tn that con- nection I have referred to a section, which I shall also have to refer to more at hnigth at another part of the argument, which deals with the free importation of some things. Section 121 of the British North America Act provides that : — " All articles of the growth, produce or manufacture of any one of the provinces shall, from and after the Union, be admitted free into each of the other provinces." Lord Watson — As to that part of the argument you are passing from ; in lliisxdl v. Tlir (Jkci'ii I do not understand this Board put it entirely on the fact that the legislation was within the general and initial clause of section 5)1. At the conclusion of their Judgment they state at p. 26 : — " Their Lordships having come to the conclusion that the Act in question does not fall within any of the classes of subjects assigned exclusively to the Provincial Legislatures, it becomes unnecessary to disciiss the further question whether its provisions also fall within any of the classes of subjects enumerated in section 9L In abstaining from this discussion they must not be understood as intimating any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and the other Judges, who held that the Act, as a general regulation of the trafKc in intoxicating liquors throughout the Dominion, fell within the class of subject ' the regulation of trade and commerce ' enumerated in that section, and was on that ground a valid exercise of the legislative power of the Parliament of Canada." Lord Davfa' — I understood Mr. Blake was going to deal with the subject of regulation separately. Mr. Blakk — Yes, I am going to do so altogether separately ; but I was about to observe this much now, that it was not adjudged against us at all even imi)liedly, and there is no indication of a decision adverse to us in 'Hw Qnci'ti v. RushcU. As I was saying, it is clear that importation is not merely local or private, and as to articles which are of the growth, manufacture or produce of any Province, there is an express provision — and that was one of the great objects of Federa- tion — to give absolute security for the admission of such articles free into each of the other Provinces. So the two following sections with reference to customs and excise deal with the free admission as between the Provinces, until the customs laws should be assimilated by providing that any goods imported into one Province should be capable of being Liqnur Prohibition Appeal, 181)5. 277 imported into the otlier on paying any additional duty, if any leviable, under the law of th(^ Province of import. The Tj(iiu) ('h\ncellor — That would be su^jposed to he merely tiscal. Mr. Blake — Perhaps ; hut still there is the provision for importation. The object is as far as possible to make trade and commerce between the Provinces free, and that is the scope and purpose of the enactments. It is in that view only I advert to them. Parliament was convinccMl it was necessary they should nuike a general uniform law as to customs duties, because to allow differential laws would have been simply to make one Province the i-iitrcpiit for the others — then if one considers for a moment the eifect of the })rohil)ition of importation into one l^rovince of goods on which customs' duties are laid, that will of course cnppl(> the resources of the Dominion. As to manut.icture also I say tiiat it is impossible to call that merely local or private. The intent and object is evidenced by the whole Act and by this 121st section particularly. It is to make the country one for these com- mercial pur])oses, and it cannot l)e declared that orie Province is so exclusively interested in the (juestion of th(> absolute prohibition of the manufacture of articles which it has been in the habit of importing from another Province and con- sunimg, that it becomes a subject merely local. Then as to sale. What is the object of importing ? What is the object of manufacturing ? Consumption is the object of all these things. The sale is the intermediate step between the im])orting and nunuifacturing and the consumption. If you stop sal(> you stop all the rest. Who will imp(frt, who will manufacture if the goods are not to be permitted to be sold after- wards in order to their consumption '? Lord Heuschell — Could not the Provincial Legislature prohibit the manufacture of something which could be only noxious ? Mr. Blake — Perhaps so. Lord Heuschell — Why, if the manufacture is to be allowed and therefore sale ? Mr. Blake — I find it difticult to conjecture as a practical ■ 278 Liquor Prahiliitioii Aiijical, 1805. n iipi)lic}itioii of thf Act in the mind of Parliiinicnt that such ii cldHH of nmnnfactnre was before tlieir minds, a mamifac-tnre wholly noxious, not capaljle of bein^ used either for eoni- mercial, mechanical or other [)iu'poses, or in combination for any beneficial purposes to the connnunity. Lord Davey — I suspect that some temperance advocates would put licpior into that category. Mr. Blake — I dare say ; but I shall wait a long time l)efore I hear a judicial tribunal decide that. The Loud Chancellor — I have great difficulty in drawing the distinction. T suppose absolutely noxious could be predicated of nothing. Mr. Blake — That is what I feel. The Lord Chancellor — It may be of use for some purposes. Take bombs or anything of that sort. One would think that would be a matter that would come within criminal law which is one of the things reserved. It is for the general security of the whole realm which would come within the Dominion [)owe.r. IVfr. Blake— If you prevented the manufacture of some- thing which could be used only for a hurtful pur})ose it would be a proper and reasonable exercise of the power as to crime to make it a crime to manufacture that article. Lord Herschell — Because you can make it a crime, I do not see that that has any bearing to my mind on whether it comes within section 92, and the manufacture can be prohibited. You can make anything a crime, but it is quite certain if it comes within section 92, you can make it a crime because the Provincial Legislature can impose the penalty of imprisonment for a violation of their regulation. In that sense you can make it a crime by the Dominion because the same [)enalty for doing the same i« as much criminal law in the one case as the other. Now here it is expressly said not to be criminal if it is for the purpose of enforcing that which is within the iurisdiction of the Provincial Legislature. Mr. Blake — There is an observation in Jtiisscll v. The (Jiii'ni which I have read, meeting Mr. Benjamin's argument To:-' -■■1 -'. J.id Crimiiuil Legislation with the view of enforcini,' sometliin;^' within tlu; Provincial power. That is (juitc: clear. Mr. Blake — Yes, hut take the case your [jovdship has put. There are thinjjfs which as the habits of society chanj^e, arise from time to time Lord Herschell — I believe there are poisons which serve no known medicinal })urpose except to destroy life, and would only be useful, if you can so call it, for the puri)ose of d(>stroyin<4 life. Take one of those. Do yon say that the Province might not forbid its sale within its borders. Mr. Blake — I should have thought the language which is used in Uusscll v. 'Jlu' Qiiccii would have applied to a case of that kind. Fjord Herschell — I only put it in relation to what I understood to be your proposition which seems to be rather a broad one, that the manufacture of everything is lawful and intended to be allowed. You said the object of manufacture was consumption and therefore the sale of everything must be lawful. That is what I understood to be your proposition. Mr. Blake — I admit that that may be open to the exception your Lordship has referred to of some poisons which are not found to have any scientific use at all, and to be wholly noxious, and to the making of bombs which cannot bo used ! iim ^1 1 ''1 IMAGE EVALUATION TEST TARGET (MT-3) V ^ y^(? ^/ ^ ^ A fiT^^ ,V4fe i^A^ J. :/. 2e 1.0 I.I m2.8 12.5 US ■ 56 1^ 12.2 la ■** ^ ^ lio 12.0 Rffli 1.8 11.25 ill 1.4 i !.6 V] <5^ /] >> ^ # ^ j> ^^. 4V^ ? Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 L^ 280 Liqiutr Prohibition Appeal, 1895. for any legitimate or lawful purpose. These were not, I admit, within my mind when I spoke of manufacture. I doubt whether they were in the mind of Parliament. I spoke rather of innocent manufactures. The Lord Chancellor — The word "innocent," I am afraid, may be subject to a traverse to some minds. Mr. Blake — Quite so : but with reference to such a thing as Lord Hersehell has suggested, I should have said those words in RmseJI v. The Queen were directly applicable — that the law was of a natute which fell within the general authority of the Parliament to make laws for the order and good government of Canada, and had direct relation to Criminal Law, which is one of the enumerated classes of subjects committed exclusively to the Parliament of Canada. ' Lord Herschell — That is only a dictum, and therefore one is not bound to accept it. That seems to me to lose sight of the fact — it is rather petitio priiicipii — that there is a Provincial criminal law if the thing comes within the Provincial jwwer. You cannot say everything is assigned to the criminal law. The criminal law means merely punishing what yon choose to make offences. Anything that is within the offence making power of the Provincial Legislature it may provide a punishment for. I do not see how you draw any line of distinction and say this must be Dominion because it is within the criminal law. If you can show it to be within one of the enumerated clauses of section 9'2, then although it is criminal in the sense of its having a })enal sanction it is within section 92. If you caimot bring it within any of those classes it cannot be Provincial. The Lord Chancellor — Hection 91 seems to assume there is a particular region cl legislation which is to l)e exclusivelv within the command of the Donnnion. Mr. Blake— Yes, and I have always supposed that the region of legislation was not limited to what the criminal law, as it stood in 1867 in one Province or all the Provinces together was, but that it embraced the power to deal with the subject in the largest sense. Lord Hebscuell — It is all the criminal law in the widest Liquor I'rohihitiun Appady 1895. •281 and fullest sense excej^t that part of it which is necessary for the purpose of enforcing;, whether hy fine, penalty or im- prisonment, any of the laws validly made under the sixteen clauses under which laws are to he made hy the Provincial Legislature. That is how I should define Dominion power. Mr. Blake — It includes the power of creating new crimes. Lord Herschell — No doui)t, and so have the Provincial Legislatures. The Lord Chancellor — We will concede that at present. Mr. Blake — I do not admit they have power to create any crime whatever. Lord Herschell — What is creating a crime except for- hidding a thing under the penalty of imprisonment ? What is crime except saying that if you do this the law will punish you for it. One knows there have heen distinctions hetween crimes and offences, hut those will not limit criminal law in the Dominion power in that way. The criminal law in the Dominion power will include every form of punishment for every form of act. Mr. Blake — What I should have said is this, that you find a large number of enumerated })owers of the Local Legislatures. Those powers include their power to restrain the liberty which the subject would otherwise have in many respects. If within the legitimate exercise of these powers they have proceeded to restrain the liberty, and to impose obligations or restrictions on the subject, they are by the Act given the power of enforcing such laws by sanctions highly penal in their nature, the highest iufippropriate in many cases and perhaps in most cases, because the extreme of them come up to the second punishment known to the English and to our own law, namely, imprisonment for life. [jord Herschell — Criminal law in section 91 would include many similar provisions, would not ii ? Mr. Blake — Doubtless. Lord Herschell — A Dominion Act which said that if you do so and so — even this very temperance thing, if you 282 Liquor Prohlhition Appeal, 1895. infringe this temperance regulation you shall be liable to imprisonment. That is exactly the same as many Provincial laws. Mr. Blake — Doubtless. Lord Herschell — I do not see that you get any Hght by saying it comes under "criminal law." There is a branch of the Criminal law under section 91 exactly corresponding to something — call it criminal law or whatever you please — which the Provincial Legislature have power to enact. Mr. Blake — I should have thought that one could say of certain things which the ingenuity of man has brought into use. or certain practices in which his depravity induces him to indulge, that they were naturally things to ')e declared as crimes as soon as found out — that the changing exigencies of Society demanded a newlaw rendering them crimes, and I should have thought that was the general sense of the observation I have read. There are matters which involve no idea of criminality at all, but which are yet enforced by i)enal sanction. There is in my locality the snow by-law for instance under which you have to clean the snow away from before your door, and if you break it you are punished for it. That does not involve the idea which one attaches to criminality. Lord Heuschell — All those are included in Criminal law in section 91 are not they ? If they are not where are they ? Mr. Blake — I should have said they fall entirely within the category of a Provincial law — a local regulation of that kind enforced by that punishment. Lord Hehsckell — It need not be local. There are certain matters on which you say the Parliament of Canada has power to legislate for the whole Dominion and impose penalties. May not this come under the criminal law of section 91. Mr. Blake — Yes ; as shown by the passage I have quoted Lord Herschell — That does not seem .;o me to thrc ■ any light on what comes within the Dominion and the Province ; that you must tind out elsewhere. Liquor Prohihition Appeal, 1895. 288 I Mr. Blakk — I had thou^lit that inasmuch aH it was a decision of yonr Ijovdshi})s' J^oard in the very case in hand and with ref( i aice to the very Act in hand, it had a relevance to the question. Lord Hkrschell — I do not say it has not a relevance, only unfortunately to my mind it does not help us to the point we have to solve. It may have relevance hut it is not very helpful. That is all I meant. I do not see how to draw the distinction. . • Mr. Blake — I have been puzzled often as to whether you could find a distinction of which Courts could take notice. I do not know to what fantastic extent the Dominion Parliament might not exercise its power to make some new crime. I do not know what it might not declare to he a crime which yet it would revolt the ideas of any one to regard as a crime. The Lord (Chancellor — There is a very familiar line in English Law which has often been commented on as being an illogical division, namely between crimes and misde- meanours. Mr. Blake — Yes. The Lord ('hancellor — A misdemeanour is a crime. Mr. Blake — We know that new crimes in one sense are legitimately made, but everybody refuses to agree that the stigma of crime attaches to them ; and we I now that old things whicli were nuide crimes have ceased to be crimes. Heresy and witchcraft were crimes not so very long ago in this count'-y, but they have ceased to be crimes. The IjOrd Chancellor — I gave you an illustration of one earlier in the day — the exportation of wool. Mr. Blake — I believe that was a crime. I do not know whether that was not mainly an L-ish crime. Lord Herschell — It was a crime until a recent time. Lord Davey — Forestalling and regrating. Lord Watson — They ceased to be crimes because they came in the course of time to be incapable of proof. % 284 . Liquor Prohibition Appeal, 1896. Mr. Blake — I suggest that this question of sale is important, hecause if you stop sale you stop the rest, and that gives a significance to one of the (juestions or more than one of the questions, ahout retail sale ; it is suggested that the sale for consumption on the premises — a puhlic house or saloon sale may he prohibited ; but I think it is common knowledge that this, after all, looking at it from a venue point of view Lord Watson — There is no absolute prohibition of the trade in liquor when you get beyond the retail. Mr. Blake — There is not absolute prohibition, but there is a practical prohibition, because here and elsewhere the men who can consume at home are but a very small fraction of the- community ; you must deal with the mass, and the mass take their refreshment in the public house ; and, there- fore, when you stop that you do in effect in the largest sense prohibit the trade in liquor. Lord Davey — ^You prohibit any man who cannot afford to buy a dozen bottles. Mr. Blake — Yes, or five gallons. Lord Davey — In a sense everybody is prohibited who has not money to buy. Mr. Blake — Not by the law. The Lord Chancellor — He has not got the money to buy it with. Lord Herschell — He is prohibited by law because he cannot get it by law without paying for it. Lord Watson — It operates as an absolute prohibition against certain persons situated in a certain way. Mr. Blake — Then if it be the case as it practidly is, and I maintain in dealing with a constitution one must look at things as they substantially are without any attempt at refinements, that the wholesale merchant is only a distributor, that the consumer is the end, and that the consumer is, speaking in the large, the man who consumes at the public Liquor Prohibition Appt'ol, 1895. 285 house, then the limited prohibition which is sngt^ested in one of the questions put is really a total prohibition of the trade. Lord Herschell — Fewer j)eople will drink, that is the theory of all such regulations, if you close during certain hours than if you allow them always to be open. In that way you interfere with the sale. « , . Mr. Blake — Doubtless, r; '; , • « r Lord Herschell — Then why is that permissible ? Mr. Blake — If your Lordship puts it to me that no restriction can be made without probably, or ])ossibly, to some extent, limiting the sale of licpior Lord Herschell — Their object being to limit the sale ; because if you do not limit the sale people may get drunk and then disorderly. That is the very object of the whole thing. The Lord Chancellor- -With submission to my noble friend I doubt that. It is very often that the object is to prevent the sale going on during particular hours, and then the people will drink twice as nnich in the next hour ; I doubt very much vdiether it diminishes the amount actually consumed. • -. • ■■ : Lord Herschell — It is to diminish intoxication or it is supposed to diminish it. I suppose diminished intoxication will mean less sold. Mr. Blake — Probably, I might say, that is a melancholy truth, but there may be other considerations and then you come to the purpose and aspect. If the aspect and purpose of the legislation is to diminish it is one thing. If it is to provide for the regulation of a licensed house so as to see that it is respectably and orderly conducted, that the driidiing however much that may be takes place within reasonable hours, that people do not drink late at night, and so forth, that is another thing. That has to do with regulations which may incidentally diminish the consumption of liquor, but the object may not be to diminish it. Lord Herschell — In none of thcL is the object to It 'n I 286 Liquor Prohihition Appeal, 1895. diminish the consumption of liquor. Is not the theory of all of them to secure good order by diminishing the conHumj»tion because probably you diminish drnnkenness. Is not that the theory of all them ? Mr. Blake — I think, perhaps, that may be said. Then what I was observing was that that which is effectively and substantially and largely restrictive and practically prevents consumption does prevent manufacture and does prevent importation. Lord Davey — Indirectly. Mr. Blake — It has that effect and has that effect markedly. It may be that regulations may be made for the purpose which are indicated in H(kI(ji' v. The (^uccii which may not very largely or sensibly affect the total consumption of liquor, but which tend to a man taking his licjuor in a decent and orderly manner without getting drunk. That ma_\ be their object. Lord Herschell — Is your contention that no regulation can be good which interferes with the consumption of liquor ? Mr. Blake — No. Lord Herschell — Interferes with it sensibly, and enables a man to take it decently ? Mr. Blake — I acknowledge it passes my capacity to discharge at present the task which I dare say may come before this tribunal to decide, how far, under Hoihjc v. 'llw Queen and the principle of that case, the local authority can go in the way of restriction. That is not one of the questions that has to be disposed of in this case. Lord Herschell — I cannot draw the line between the restrictions in Hodge v. '!%• Queen and the restrictions in this Ontario Act. You say it virtually prohibits, but it merely comes to this, that it creates new obstacles in the way of obtaining drink ; I do not see how to differentiate that — it is different in degree, of course — but in principle, and say that one is regulation and the other is not, the object of both being the same — to preserve sobriety and order in the Province. IM Liquor Prohiltition Apjwil, 1805. 287 Mr. Blake — I will cndcavonr to ^'rii))|)l<' witii that legislation in a later part of my argimieiit ; and if your Tjordships phrase, I would ask you to take this as ai)|)liciil)le to the hulk of the (piestious whieh a])ply to total prohihition and si(l) iiKxlii, only suhjeet to the distinction your iiordshi|)s suggest as to the 7th (juestion. What I would desire to point out — and I am now upon the (piestioti of " merely loeal or private " — is that this particular trade and connnerce was at the time of Confed(^ration and has always since heen highly taxed and a large source of revenue to the country. Now, what ai)pears from the puhlic Statutes ? The trade has heen regulated in the iiscal sense. Provisions for lic(Mise and for honded warehouses and so forth are arranged. The importation and the manufacture is recognised as lawful. It is regulated in the fiscal sense and for fiscal purposes, and a very suhstantial i)ortion of the puhlic reveime in the Pro- vinces hefore Confederation and in the Dominion since Con- federation is derived from this source. Canada was given a })0wer tc raise money hy any mode or system of taxation, and on her was imposed an ohligation to pay the interest on the dehts and to assume the pul)lic dehts of the Provinces, and also to })ay yearly very considerahle suhsidies to the Provinces ; and this she has to do out of those means of raising revenue which she possesses. Can it he said, then, to l)e a merely local or private matter within the Province to prohihit the sale or the manufacture or the importation of a suhjeet which is one of the princijjal elements of taxation and of revenue in Canada, which has heen always treated as such, and out of which she has to meet her puhlic ohligations, including the ohligations to these very Provinces themselves ? I suhmit that that view, apart from anything else, excludes this par- ticular suhjeet from the general phrase, " a matter of merely local or private importance or interest in the Province." Look at what would hajjpen ; and it is fit to put cases which might very well happen. Supposing this was done in each Province, and sup})osing it was applied (for it might he applied) to other suhjects of taxation and other suhjects of revenue as well as intoxicating li(iuors. The power of the Parliament of Canada to procure its revenue might he fatiilly crippled. It is true that ('anada has the power to raise money hy any mode or system of taxation, hut it has raised it all heretofore •I \w- 288 Liquor Prohihition Appeal, 1805. by cwstomH and excise (with the exception for a short period, (luring which about i'40,000 a year was raised from a tax on stamps) ; and the circumstances of the country are such that no man can foresee the time at which it can he raised otlier- wise than indirectly — that is, by duties of customs and excise. Then it is of the most serious import to the whole of the fiscal system of Canada ; and it cannot be that it is a matter merely local or private within a Province whether the mami- facture and the sale or the importation of such a great dutiable or excisable commodity shall he prohibited. Although, as I have said, I should be very sorry indeed to try to draw the exact line of demarcation which may have to be drawn some day under the principle of Ihnhjc v. 'Llw Queen, yet it seems to me there is all the difference in the world between what we have called a police regulation based on special local conditions which may vary in a town, a city, a village, or a county, or according to local public ideas, and which may be directed to the amelioration of these conditions, and such general and drastic legislation as is proposed. Then in addition I repeat with reference to the question of " merely local or private " the suggestion that in this case there has been a declaration adjudged to be validly made by the Parliament, that this is a general evil and a Dominion question on which the Dominion Parliament has legislated, and that makes the subject no longer capable of being called merely local or private. Then if, contrary to the suggestions which I have made, there be some defeasible power in the Provincial Legislature of dealing with this matter locally, I submit that that power has been defeated ; because the Dominion has acted. It has, as I venture to suggest, decided that the proper way and useful extent of legislation is to provide for prohibition, and for a repeal of it, and for a reinactment of it, at the intervals, and on the terms and on the conditions which I have stated. These are the methods for grappling with the general evil which the Legislature adjudged competent to grapple with it, has deemed best. It has not deemed best that greater areas like a whole Province should be by one Act of the Legislature or by a plebiscite subject to total prohibition. It has obviously decided the political question of which it was the sole and sovereign judge, that it would not do to let so large an area dispose in every part of ,1 Liquor Prohibition Appeal, 1895. 280 that iircji this question. Prohiibly it thought that tluTc niij^lit he, notwithstaiidii;^ a majority in the whoh' I'rovince or a preponderaiuje of opinion in the whok^ Province, enormous majorities adverse in local annis, where a local public opinion mi^ht exist ho strongly adverse as to render the Act un- workable, or worse than useless, as we know has occurred in the various cases in which such very (U'astic legislation has been attempted. When it has decided to i)ut it in force in this way and in this way only, it must be presumed, in favour of the |)rudent and wise exercise of its powers, that it has so decided because it had concluded that these were the terms and conditions upon and the (extent to which it miglit carefully and ought properly to go in this direction. It is a case in which the suggestion tluit a less rigorous Dominion law may be supplemented by a more rigorous Provincial law does not ajjply. I may be asked how does it hurt to nnike still further and more effective provisions than the Dominion Parliament has thought })roper ? The answer is that the competent authority must be taken to luive decided that it will not help but it will hurt to attenii)t to go further ; that the attempt will not be effective but mischievous, that it has gone as far as you can prudently and beneficially go on the line that it has taken. Nominal stringency may be as it has turned out to be, real laxity ; aiul a more stringent law is inconsistent with the spirit and with the conditions of that law which has been passed. It may be argued that a g)-(nit volume and force, and a general diffusion of favourable public opinion all over the body affected by the law is needed, in order that the law may be beneficial ; nay, I will say in order that the law may be otherwdse than extremely hurtful ; because, I suppose, no one can doubt that a law of this kind evaded or openly violated is not merely not potent for good, but is very potent for evil. It teaches habits of evasion, and habits of breach of the law, and of disregard of the law which tend generally to the d(^terioration of the moral and law abiding and law resi)ecting status of the connnunity, with- out doing any good, but rather impeding, thus leaving unre- pressed, unregulated, and unlicensed that trade which might have been moderated by laws of a different kind. Well then, if that be so, in what volume, in what force, and to what extent diffused' shall that public opinion be before the law '^'mmg^ '2<)0 Liquor I'roliihitiori Appfdl, 1805. shall he put into force ? This is the (|nestion which the Doiniiiion Parliament has decided. This is the (juestion it has dt>cil>ly another set of tests and sjiy : Well, we do not helieve in this area, we do not helieve in these electors, we do Tiot Ixdieve in these terms ; we l)eliev«' that this law on^'ht to he put in forc«^ in another area, and hv another set of electors and on other terms. To say that thut is not inconsistent with, and practically Lhwartm^ and interferitig with the ))rincii)le of the law estahlished is to my mind extremely dilticnlt. All these questions have heen settled by Parliament in the way it thon<,'ht best. Then it is said. Are yon not ^oing to interfere where the Prohibition Act is not in operation ? I say certainly not, l)ecause the Parliament has decided that the Prohibition Law shidl come into operation provided certain tests indicate that it ought to come into operation, and is not to (iome into operation unless those tests indicate it, and to put it in operation when the tests are not ai)[)li^Ml, and the consent of the majority cannot be obtained for it is to i)ut it in operation at a time, and under circumstances in which the Parliament, competent to decide, has in effect decided that it ought not to be put into operation, and therefore that so far as pro- hibition is concerned the trade ought to remain free. My Lords, before passing from this branch of the subject, I have one word to say with reference to my suggestion that the general })owers of the Parliament of Canada need not be exercised over the whole area of ('anada. If your Lordships would look at the case of Ihihif v. 'I'finpornh'tii-s lionnl, which is to be found iu 1st C'artwright, there was a case in which it was necessary to decide what the powers of the Parliament of Canada and of the Local Legislatures respectively were in reference to a corporation existent before confederation, whose area and power and property extended over the whole of the old Province of Canada, afterwards turned into Ontario and Quebec, two only of the Provinces, and it was determined that the local legislatures had no power either separately or by connnon action to touch or deal with the affairs of that corporation ; and, this being so, that the Parliament of Canada had that power under the general clause and the general clause only. That was a bit of legislation which on the face Liquor I'rokibition Appeal, 1895. 2»1 of it ohvionsly (l«MiIt not with tlu^ whole of ('iiiiiuhi hnt vvitlj that wiiich had been oiu' I'roviiico hcforc and hccauu' two Provinces after eonfe(leration, "ud in such a ease as that the law of course was not extended over the whol«> country, l)ut the Parliament was held to have power to deal with th(> more limited area. The LoHD Cm.^ kllou — Was not that like the diiViculty in our countries where t.^ere were diHiculties in nuikin^ regulatiens applicable tf^ two countries'.' Mr. Blake — That may be. But I say it establishes this that under the general power to nuike laws for the peace, order and good government of (/anad.i it is compet(>nt to the Parliament of C!anada in an ap|)roi)riate case to deal with a subject which does not extend over the whole of Canada but extends over part of it only. The Lord Chancellor — Certainly. What T meant was that it would mean that, hecause tin n^ was no ])ower except this that could deal with a subject matter which necessarily extended into two different jurisdictions. Mr. Blake — I think that is true, and T think that was the theory of the decision. Sir Richard Couch — The ground of the decision was that it extended into two Provinces, and neither Province could legislate for it. Mr. Blake — And therefore they found under that general clause it was swept into the Dominion legislation, and none the less so swept into J)ominion legislation than that which applies to the whole of Canada. My Lords, that is the whole of my argument on this head. There have been numerous cases, I do not cite *hem now because 1 am not going into them in detail, of Acts ever since confederation on the same theory. I may say that I was instructed by my friend who is with me and who has looked into the Revised Statutes, that there is hardly a subject to be found in which Parliament has not assumed to exercise the power of dealing not uniformly but somewhat separately, and with reference to local conditions as to its powers of legislation. I will take two instances, one the question of restriction on the bearing of arms in particular va mmm 292 Liquor Prohibition Appeal, 1895. localities by Proclamation, and another a restriction with reference to this very same drink traffic in public works. They are notable instances of the same kind, so that on the whole I submit to your Lordships that it has practically been adjudicated that this '!»■ within the general power of the Dominion as in UasscU v. 'I'lw (Jiifen, th&t it has been adjudged that the legislation which has taken place does grapple and deal with this subject, that it obviates local difficulties and deals with the subject in such an elastic and general manner that local optica and local feeling and wishes can be met as to the application of the legislation, that it is impossible under such circumstances to say that either the subject of the drink traffic dealt with in connection with prohibition and with the aspect and purpose which are indicated in Rush<;U v. The (^ueen are " merely local or private " in any one Province, and that in addition the other considerations I have stated as to taxation and as to revenue and as to the general interests of the whole inhabitants of the Dominion in the question bring it also out of "merely local or private." I now turn to the other enumerated power, namely, the "regulation of trade and commerce," and I would point out that what is declared is that " notv/ithstanding anything in " the Act, and for greater certainty, but not so as to restrict the •" generality of the foregoing terms of this section, it is declared " thnt the exclusive authority extends to all matters coming " within the classes of subjects next hereinafter enumerated," and in the enumeration is " the regulation of trade and com- merce." It is conceded that if the subject we are now dealing with is to be embraced within this enumeration it is withdrawn from "merely local or private " by the exj)res8 terms at the close of the section. Now the extent of the power of regulation of trade and commerce is certainly not settled in Parsons' case. It is definitely observed that the attempt is not there made to settle the extent of the power. What is stated is that the words do not embrace any minute rule for the regulation of a particular trade, or for the regulation of contracts in a particular business or trade in a single Province ; but it is expressly observed that no attempt is made to deihie the limits of the authority of Canada beyond the extent of that exception which is expressly made. It needed not to consider here the grounds on which the general powers to make Liquor Prohibition Appcol, 1895. 293 regulations for trade and commerce, when conipetontly exercised, might legally modify or aflfect projjevty or civil rights or the power of the Provincial Legislature, That is a question I am not trouhled with here, hecause there are the two aspects — the aspect of dealing with property and civil rights, and the aspect of regulating the trade which incidentally may affect property and civil rights, and which conies within the general and rational line of distinction which has heen drawn on these subjects. Dealing with these two different aspects, one can understand some so called interlacing or some carving out, to the extent to which the exercise of the Dominion power rendered necessary in that asi)ect or for that purpose to cut out part of the subject from projjcrty and civil rights. Lord Davey — What page are you referring to '? Mr. Blake — I think it is pages 278-9 of 1st Cartwright. Lord Davey — Because there is a very imi)orfcant passage on page 277. Mr. Bi.AKE — Yes, my Lord ; I am going to d<^al with that. I was going to observe, with regard to those passages. that those interpretations — not the one which your Lordshi}) alludes to ' Lord Davey — Follow your own course. Mr. Blake — (reading from page 277) : — " The words ' regulation of trade and coninierco ' in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign (iovernments, requiring the sanction of Parliament, down to minutt> rules for reguiating particular trades. ]5ut a consideration of the Act shows that the words were not used in this unlimited sense." I make this observation only for the moment, that it is admitted by the case of the Honk of 'I'oronto v. Loiiihc that the words themselves are wide enough to sweep in everything, and that therefore they take everything, except what you find from a consideration of other parts of the Act are to be with- drawn from them. The words are am})le enough. Lord Davey — Unless controlled by the context. 1 'A 204 Liquor Prohibition Appeal, 1896. Mr. Blake — Unless controlled by the context or other parts of the Act. That is where the Judgment begins to indicate what governing considerations may apply : — " Bnt a consideration of the Act shows that the words were not used in this unlimited sense. In the first place the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the Legislature when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in section 91 would have been unnecessary ; as 15, " Banking " Lord Watson — What is " general trade " ? Mr. Blake — I do not understand. Lord D.u'EY — I suppose they mean regulations relating to trade generally. Lord Herschell — Not to a particular trade. * . The Lord Chancellor — I am afraid it does not go a little deeper than that and that it does not show they exclude mere minute regulation. ■" Lord Watson — I think that is what it applies to. Lord Davey — It is explained afterwards in the next passage. Lord Watson — Regulations as to loading or unloading in the docks may affect commerce. Lord Herschell — I think it is open to doubt whether the words, regulation of trade and connnerce, do naturally and proi^erly cover regulations which may affect prescribed conditions of a particular trade. It is very broad. It is not " trade or commerce," but it is " trade and commerce " — very broad words. Mr. Blake — Yes, of course they are broader. Lord Watson — The word " general " was meant to exclude the right to deal with the particular trade and make general regulations for it. ;, Liquor Prohibition Appeal, 1895. 296 Mr. Blake — I do not think there is any word "general' in the Act. It is the regulation of trade and connnerce. Sir Richard Couch — There is no word " general " in the Judgment ? Mr. Blake — I rather think not. The Lord Chancellor — Yen, the word " general" is in the Judgment. Lord Davey — But it is not in the Act. Mr. Blake — No, my Lord. The Lord Chancellor — It is in the Judgment l)ut not in the Act. Lord Davey — They explain what they mean if you read on. Mr, Blake — May I, before reading on, just refer as pertinent to the part that I have read to the words in Parsom' case ? " The words ' reguliition of trade and cominorce ' in tlicir un- limited sense are sufficiently wide if nnconti'olled hy the context and other parts of the Act, to include every rcj^'ulation of trade ranj^'inj,' from political arrangements in regard to trade with foreign governments, requiring the sanction of Parliament, down to minute rules for regulating particular trades." The words are very wide. How wide ? What do they mean ? The first suggestion that is made in I'arsoiis' case is that the collocation with subjects of national and g(>neral concern aifords an indication that regulations relating to general trade aiul commerce were in the mind of the liCgislature, but I submit that that is a very far-reaching implication, and that it is hardly likely that the phrase " regulation of trade and commerce " can properly be limited l)y a suggestion that the enumerations on one side or the other side refer to some general subjects. FiOrd Watson — The definition appears to be almost as indefinite as the text delined. Lord Davey — It is a little more precise afterwards. 296 Liquor Prohibition Appeal, 1895. Mr. Blake — Yes, on that poini and on the connection or collocation, and generally in reference to the prohahle intent of the Legislature in using the words I venture, to refer, without reading, to the Judgment of Mr. Justice Sedgewick at page 9/), and the following pages of the llecord, in which he shows the mode in which these words were used in Canadian and Nova Scotian and New Brunswick Legislation for a considerahle j)eriod hefore, and at the time of the passing of the Confederation Act, and in which he suggests, I suhmit with great reason, that it was infinitely more likely that the Canadian framers of this Act or of those Resolutions on which this Act is hased had in their minds Lord )avey — Is that admissihle ? Mr. Blake — I thought that had already heen mentioned in the earlier part of the argument, as to what they had in their minds ; perhaps it may not he admissihle ; hut it seeric;d to me that the sense in which the phrases that are us. in this Act are found to have heen used in Canadian Legisla jn generally over the whole area would not he irrelevant in deciding the sense in which they should be held to have been used in the Act itself. Lord Watson — You might derive some light fron) previous legislation if it was relevant. It might be relevant. Supposing there had been words in the old Provincial Acts grouped under a particular head and you found that head in this Act, I think such legislation would throw light on that. Lord Herschell — You do not tind " Regulation of Trade and Commerce." Mr. Blake — In some of them you do. Lord Herschell — I think it is " Trade and Commerce." Mr. Blake — You tind " Regulation of Trade" in particular cases both in Nova Scotia and New Brunswick. Lord Herschell — There is the difficulty, if you take it from two Provinces ; are we to suppose they used it in the sense they used it in those two ? If you could show they had used it in all the Provinces or that it was^in general use that I Liquof Prohibition Appeal, 1895. 207 would be different. It seems to me rather dangerous to take the use m two Provinces. Lord Davey — T have read Mr. Justice Sedgewiek's Judgment very carefully and move than once. This passage I have read more than twice, hut I cannot for the life of me find out what he thinks "trade and commerce " means, because he says it means one thing in Nova Scotia ; and the classes of subjects to wliich he attributes it seem to me incapable of any, I will not say scientilic, but any logical meaning. For instance, he says (Record })age 90) in Upper Canada it means : " Navigation, inspection laws in relation to lumber, flour, beef, ashes, tisb, leather, hops, itc, weights and measures, banks, promissory notes and bills of exchange, interest, agents, limited partnerships." Then in Lower Canada it means : " The inspection of butter, the measurement and weight of coals, hay and straw, partnerships, the limitation of actions in commercial cases, and the Statute of frauds." Will anybody make a scientific classification of subjects out of that? .; Mr. Blake — I do not pretend to be able to do so. Lord Davey — I have referred to these things and have tried to find out what it was that he thought " trade and commerce " did mean in the earlier Canadian legislation. Mr. Blake — I suppose the object of the learned judge was this, to combat the proposition that it meant only in the view of the Caiiadijins this general regulation of trade and commerce, that it was shown that in each Province under " regulation of trade or commerce " there were laws dealing with i)articular trades ; and, therefore, that laws dealing with })articular trades must be taken to be within the scope of the words. ... Lord jIerschell — Is your jjroposition this : that no law can be made dealing with any trade by any Provincial Legis- lature because that is a regulation of trade and connnerce within the exclusive power of the Dominion under 91 '? Mr. Blake — It depends on the character of the dealing. • Lord Heuschell — I say any regulation as to putting restriction on the mode of carrying on any trade. m .,-1 298 Liquor Prohibition Appeal, 1896. M"'. Blake — I am unable of course to contend that after Parson,", ise. Lord Herschell — And after HiuhjeH case. If so I do not quite understand where you draw the Hne. Lord Watson — It is very difficult to understand. Lord Herschell — I understand the other part of your argument about prohibition, l>ut if you may make regulations for the police, or what you will, which juit restrictions and conditions on the carrying on of a particular trade without infringing 2 of 91, then what is the limit of that ? Lord Watson — What does trade include ? It is put here along with commerce which may point to this, tbat it ought to include manufacture, but trade does not necessarily or naturally always include manufacture. Lord Davey — What do you think of inspection of butter which is one of the things the learned judge gives. Would not that be a market regulation and within municipal institutions ? Mr. Blake — No, .ay lord, that is just one of the things which may or may not. Take for ii.stance the question put by his lordship the Lord Chancellor, the other day about flour ; but there are inspection laws as to flour by the Dominion which are of the utmost consequence to the whole Dominion and of the greatest value. Lord Davey — My observation is directed to this, even if it be admissible to look at the way in which the language is used in contemporaneous Acts it does not seem to help us very much. Mr. Blake — The only argument I would draw from it would be this, that it did indicate that under the " regulation of trade," or under "trade and commerce," a power of regulating particular trades in some way, and to some extent, was included ; but it does not make a code of regulation at all. Lord Herschell — One cannot doubt that great power of regulation of trade must be included in " trade and com- merce," but it is another question as to whether the local Liquor Prohibition Appeal, 1895. 299 Legislature cannot impose any restrictions upon the dealing in any particular goods without infringing that power of the Dominion Parliament. Lord Wathon — And there, rememher, in framing that phrase, they had not the smaller things in view. Take a dairy in a Province : milk produced at that dairy, unless it is intended for the market, does not come within the rule as to market or trade either : it may be intended for home con- sumption. If it is a local matter to protect that family, I do not see why the Province should not ])ass a law for the inspector to look after that locality, before it is consumed by the inhabitants. On the other hand, that would not be a matter affecting more than one Province, one dairy, or two or half a dozen of them, or all the dairies round a particular town in the Province. Mr. Blake — The full extent to which I press the facts stated by Mr. Justice Sedge wick, is this The Lord Chancellor — You see, in each of these cases the difficulty is suggested to you that there may be something which is essentially local, there imxy be something which cannot be general at all. Take the case my noble friend put : at this moment supi)ose it was ascertained by i)roper analysis that th-* washing of butter in a particular stream made it uniit for huma]i food — surely there is a perfect right to pro- hibit that. Mr. Blake — I do not deny it ; but I hold that the Dominion Parliament is not to be deprived of its authority to legislate at all in larger matters, because it is extremely difficult to draw the line between local and those larger matters. Lord Herschell — Then I do not understand what you call the larger matters, or how you are to say that because of the size of the matter it is within their cognisance and the other is not. To say that nobody shall carry on a particular trade unless he does it in a house of a particular size or value, which is a very common thing in these licensing questions, or within particular hours, or it may be, except on particular days, that is to say, you m:„y perhaps exclude the Sabbath !» I 300 fjiquur Vrohihition Appeal, 1896. and holidays — supposing that you make all those regulations, what are those in one aspect hut regulations as to the way in which that trade is to he carried out ? If that makes them " regulations of trade and commerce " within the meaning of 1)1, no Provincial Legislatuie could pass them at all. But those are not the small things, those are very hig things in the way of a man's trade, and I do not understand where you draw the line, and what are the bigger things which you say would he trade and commerce. I do not mean you should draw the exact line, hut if you draw it you must draw it on some principle. Lord Watson — Would it he an interference with trade or commerce either if the Provincial Legislature were to enact a law, and penalties for its infraction, as to mixing milk with water — adulteration ? Mr. Blake — I should hardly think so, my Lord. Lord Watson — W^ould that be a regulation regulating commerce and trade ? Mr. Blake — I should hardly think so. Lord Watson — I think it would he a law to prevent people selling one thing instead of that which they represented — from selling water-milk under the name of milk. Lord Herschell — From one point of view it would he a regulation of trade. Everything which says you shall only carry on your trade in a particular way and under particular conditions and restrictions regulates the trade. Then it strikes me as only a question of degree as to how far j^ou carry those restrictions and conditions. I like to get my foot down on some principle ; I do not say I can draw the exact line, hut I feel here I am standing with one foot on one side and the other on the other. Lord Davey — The definition in this Judgment which you are going to, whether it can be supported or not, does afford some standpoint. Mr. Blake — Yes ; I propose when I come to Hodge s case to read to your Lordships what was the character of the regulation which was thought to be within the power of the C tl CO bu IS Liquor I'rohibition Appeal, 1805. 301 Provincial Legislature, and which answers, as far as I am able to answer them. Lord Herschell's observations. The next suggestion that is made is that " regulation of trade and commerce " may have been used in some such sense as the words " regulation of trade " in the Act of Union between England and Scotland, which is common, and as these words have been used in other Acts of State. Citizens InsnniiKr Conipami v. l\irsons, L. R. 7 App. Cas. 90 and 1 Cartwright at 277." „_• '_:■._: . -, , / ,.■ -_ " Article 5 of the Act of Union enacted that all the subjects of the United Kingdom should have ' full freedom and intercourse of trade and navigation' to and from all places in the United Kingdom and the Colonies ; and Article 6 enacted that all parts of the United Kingdom, from and after the Union, should be under the same ' prohibitions, restrictions, and regulations of trade.' Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only, witliout its being supposed that it thereby infringed the Articles of Union." Of course it is clear that Parliament had power to deal with the Articles of Union, and legislate contrary to them under any circumstances. " Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two Kingdoms. So with regard to Acts relating to bankruptcy, and various other matters. " Construing, therefore, the words ' regulation of trade and com- merce ' by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of Parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade aft'ecting the whole Dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion Parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single Province, and therefore that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the Legislature of Ontario by No. 13 of section 92." Lord Davey — Consistent with their thinking that it did contain the power to regulate contracts for a particular business in the whole Dominion ? Mr. Blake — Quite so. There is no doubt that phrase is consistent with that idea. . ,..• 302 Liquor Prohibition Appeal, 1895. The Lord Chancellor — Of course one treatH those observations with the respect due to them, hnt I confess it seems to me to employ a good many words without getting very much nearer the proposition. Lord Herschell — At all events it is a decision for this : that the Provincial Legislature might so far regulate a par- ticular trade as to say that in all its contracts and dealings there should be certain implied conditions, without its being a regul.Hion of trade and commerce within the meaning of 2 of 91. Mr. Blake — I was dealing with the suggested definitions, because I think more than once in the course of the argument they were alluded to by Lord Davey, who asked what was to be the attitude taken with reference to them. Now, what I want to do first is to point out to your Lordships what are the points which it is suggested they would include : First, political arrangements with regard to trade requiring the sanction of Parliament. But then, my Lords, that is pro- vided for expressly by another section. Section 132 deals with that topic. '* The Parliament and Government of " Canada shall have all the powers necessary or projjer for " performing the obligations of Canada or of any Province " thereof as part of the British Empire, towards foreign " countries arising under treaties between the Empire and " such foreign coimtries." No political arrangements can be made, excepting through the medium of the supreme authority. The local authority may be, and has been of late years, more recognised in the making of those arrangements by an understanding between the local authority and the supreme authority; but for all that it is always a treaty made by the Supreme Government, which alone is a political arrange- ment, and which alone can be referred to in the Act ; and the Parliament of Canada is given by section 132 express power to make all the arrangements necessary for performing those obligations. Lord Davey — Would it include the making of trade arrangements between Canada and the mother-country which are not covered by section 132 ? Mr. Blake — No, my Lord. ^ i Liquor Prnhihition Appeal, 1805. 8():i Lord Herschell — Is it very important to inquire wiuit is within 2 of 01 in this relation ? What we have to consicU'r is what is either exhaustively defined or to consich'r what is outside. To find out a nunil)er of t[iinfj;s within it, is very unimportant is it not ? If yon can exhaustively deline it, no douht that will show us what nniy he outside it. Mr. Blake — I thiid^ if I disposed of, as settled hy other clauses of the Act, all those matters which in /'(O-soiis v. The (Jitirn it was sugf^ested were included in or were the ohject of trade and connnerce Lord Herschell — It might he done hy saying — "All matters of general regulation of trade within tlie Dominion." It might include a good deal more than that, hut they say distinctly it does not include every particular dealing witli the trade. Mr. Blake -Doubtless that is so, and I have no right to ask your Lordships to depart from that. And if your Lordships think that the attem[)t at a definition or a suggt^stion, made obiter perhaps, and stated in Lombe's case to he "thrown out" rather than otherwise, is not important to he discussed, I will not trouble your Lordships. Lord Davey — For the present purposes that would be enough for your opponents would it not — they would say that it has been decided in I'orHoiis' case l)ecause it does not include interference with the contracts in a particular trade in a particular Province, and they would say it does not interfere with the contracts made in the liquor trade in the Province of Ontario. Lord Herschell — It does not matter whether it comes within 1() or any other number. We are only now on the question of whether it comes within 2 of 91. Mr. Blake — All that is determined is that it does not comprehend the contracts of a particular trade in a particular Province. Of course this Act which we are dealing with, so far as it may be said to affect contracts in a particular trade in a particular Province^ — though I find it diiticult to see how prohibition of all trade comes within that category — seems to contemplate a trade which is to be generally regulated i^mmsm^^m 804 Liquor I'mhihitiim Apfirnl, 1805. rather than the extinction of the trade alto^«^tht'r. It is general therefore — it is not within th(» lanj^iiago of thin case. It is a regulatio. generally with reference to the whole Dominion. Ijord Davey — But I mean suppose the Le^nslature of Ontario interferes with the contracts of a particular trade in the particular Province of Ontario ? Lord Wat8on — That seems to he ttled hy the case of Parsons v. 77«' (Jiurii, hut what would settle in this case ? If none of these questions had arisei. and the licjuor trade was going on as usual it would have settled this, that if the legislature of Ontario had thought Ht to pass a law that when a liquor seller in the Province had contracted to sell a dozen he should sell 18 hottles, it could do so. What then ? I do not see how it illustrates the present case — of course ''>e observations made in the course of it I do not seek to disparage. Lord Herschell — I take it that it shows at least this, that it is a distinct interference with the mode in which the trade is carried on to say that in every contract you make certain conditions shall be implied. That is an interference which is not a regulation of trade and commerce. Therefore it does say that you may do something in the Province, which interferes with the mode in which a trade is carried on. Lord Watson — Although that would refer to the form and shape of a contract between the parties to the trade. Mr. Blake — Yes. It does say you may do something and defines what that something is ; but what other things you may not do Lord Herschell — That it leaves open, and then one has to search for the principle. At all events it shows it is not enough to say that this affects the mode in which the trade is carried on ; it is a regulation of trade and commerce, therefore the Provincial Legislature is excluded. You cannot go that length after Parsons' case. I do not know that it tells you more than that. You have to find out yourself how far you can go. Lijni(l, 1895. 817 prohibit its bciiif? bouf,'ht or sold luui to prevent trade or traffic therein , and thiiH destroy its conuaercial vahie and witli it all trade ami com- merce in the article so prohibited, and thus render it practically valueless as an article of comnierci' on which a revenue could he levied. Apain, how can the local le;,'islature proliihit or authorise the sessions to prohibit (l)y arbitrarily ri^fusiuf^ to ^Ljrant any licenses) tlii' sale of spirituous liijuors of all kinds without coniiii;,' in direct conHict with the Dominion Legislature on the subject of inland revenue involving the right of manufacturing and distilling or making of spirits, itc, as regulated by the Act, HI \'ict., chap. H." aiifl so forth. Then he refers to the distinction in this aspect of the United States constitution whicli is clear, and goes on to say : — " We by no means wish to be understood that the local legislatures have not the power of making such regulations for the government of saloons, licensed taverns, itc, and the sale of spirituous li(ju()rs in public places as would tend to the preservation of good order and prevention of disorderly conduct, rioting or breaches of the ))eace. In ■ ' such cases, and possibly others of a sin>ilar character, the regtdations would have nothing to do with trade or commerce, but with good order and local government, nuitters of municipal police and not of com- merce, and which municipal institutions are peculiarly competent to manage and regulate." Lord Heuschkll — Why would they in that case have nothing to do with trade, why would not they have to do with trade and not with anything else ? Your ohject is to show in each case a new ohject — one solely and the other merely Mr. Blake — The ohject is good order and good govern- ment — matters of police. The incidental interference is with trade and conmierce. Lord WATsoN^Althougb it may he enacted to produce good order and good government, it does not in the least follow that you necessarily deal with that matter. What am I to understand according to your argument hy the ohject of the Statute ? Lord Herschell — That is my difficulty in the ('hief Justice's distinction. The chject is the same — you are going the same road to secure that ohject. You go a little way in one way . ■ Lord Watson — There may be a great many objects one behind the other. The first object may be to prohibit the sale of the liquor and proliibition the only object accomplished 318 Liquor Vrohihition Apjical, 1805. by the Act. The Hecoiid object |)rnl)iil)l.v is to diniiiUHh drunkenness; the third object to improve nioriility mid ;^'ood behaviour of the citizens ; the fourth object to diminish crime and so on. These are all objects ; which is the object of the Act ? IMr. Blakk — I suppose the objects of the l<>^'islution were the latter, and what it did to accomplish the objt'ct was first — the prohibition. Lord Watson^^I should he inclined to take the view that that which it acconii)lished, and that which is its main object to accomplish is the oi)ject of the Statute, the others are mere motives to induce the legislature to take means for the attainment of it. Mr. Blake — The immediate purpose of the Statute, so far as it is enacted, is to ])rohibit the sale of liquors, the reasons for which the legislature deemed it prudent and proper to do, that are the objects. But it seems only a talk about words. Lord Herschell — In the other it is to restrict the sale of liquor within certain hours, but in each case it puts fetters on the trade move vr less, and I do not (juite see the difference between theui as leal or as being a regulation of trade. I see many differ, n ;e8 between them. Lord Watson — I think distinction is made there in calling that the object in one thing which they do not call the object in another case. . Mr. Blake — The learned Judge goes on to say : — " But if outside of this and beyond the f,'rantin},' of the licenses before referred to, in order to raise a revenue for tlie purposes mentioned, the legislature undertakes directly or indirectly to prohibit the manu- facture or sale, or limit the use of any article of trade or connnerce whether it be spirituous liquors, flour or other articles of merchandise so as actually and absolutely to interfbre with the traffic in such articles and thereby prevent trade and commerce being carried on with respect to them, we are clearly of opinion they assume to exercise a legislative power which pertains exclusively to the Parliament of Canada." Lord Watsox — I think in all those cases as a matter of fact you will find that legislation does nothing more than fjqiior ]'r(>liihiiii>u ApjH'id, lHi)5. 819 provide the mejins by which it is ex|)('cte(l tho object will ho attained. Mr. Blake — I snppoHe ho, my Lord. Sonietiines in tli«! preamble, althon^'ii 1 believe preambles are now ',>■- "-' K^^- ■•■:■ ^ -'-■...,:■ ;■ ■ !, : Lord Herschell — I do not think this Board will draw the line. I believe it will continue to say from time to time a number of things are on this side or the other side of the line, but I do not think you will ever see the day on which the line will be drawn. Mr. Blake — I am glad to hear your Lordship say that, because I do not suppose after that your Lordships will ask me to draw the line agaui. Lord Herschell — You may find some foundation on Liquor Prohibition Appeal, 180/ 321 which you can rest in saying this must be on one side of it und this on the other, though you cannot draw the hne. Lord Watson — If counsel suggests that there is a hne which we have never yet found out, it is a fair question to put to him to exphiin it according to his view. Mr. Blake — T say it runs a good long way on the hither side of prohibition, but where exactly it runs I coald not well argue, save in a concrete case. Then I submit that to treat trade and commerce, as it must be held to l)e treated, as "' merely private or local," would be contrary to the letter and the spirit of the Act. X\i observation was made, [ think in Lamhc V. The Bank of Toronto, where the Court v" s dealing with the question of the reason why indirect ti- .ation was not left to the Provinces, and that observation has force as directed to this case. It was said that the effect of indirect taxation is necessarily general, it necessarily extends beyond the Province, its ramifications are extra-provincial, and therefore it was that indirect taxation was not permitted to the Provinces as well as to the Dominion ; aud if the effect of indirect taxation is so general and far-reaching, as I should say it certainly is, must not the effect of pi-ohibition also be a f.irtiori equally general and far-reaching ? As I have said, the revenue of the Dominion is wholly indirect, and therefore this subject of prohibition which so seriously affects that indirect taxation must be held to be something more than a merely local and })rivate subject. I have only to trouble your Lordships now with one or two words with reference to the minor questions as I call them. I think as to the second one I said what I have to say when I made the suggestion that where the Canada Temperance Act is said to be not in operation, it is not put in operation because the Dominion Parliament, competently dealing with the subject, has set conditions uiuler which it cannot be put into operation, under which the people do not choose to put it into operation, and therefore it has in these case h its negative operation. The test is supplied for every locality, and the Act has its general effect, either l)y jyi'eventhig other interference or by the interference under it in all localities. Lord Watson — Yon say it is equivalent to a rjsitive 322 Liquor Prohibition Appeal, 1895. e lactment that the people of the Provinces shall eiijoy an Act of extended restriction and nothing further ? Mr. Blake — Yes. Lord Herschell — Do yoa go as far as that, or do you take no midway ground, because if it comes 1 ^ *bat, they cannot make any regulations — they cannot m. Iv^ '" ts? Mr. Blake — I have always said from tL. L.'>"- whatever view }ou take of trade and commerce, import. .i.:\^^: to an enormous extent ; it is manufactured under excise : ••« by the Dominion, from it a large (piantity of the Ptcvenut' of the Dominion is obtained, it is a trade which the Dominion has legalized, if it were neci "sar- fo le[:£ijizo it, regulating it very largely as was necessary to- tiscal p'.l'; .)ses. Lord Herschell — And the manufacture can only be remotely put, speaking generally of municipal poUce pur- Liquor Prohihition Appeal, 1895. 32S poses, because if they prohibit the sale everywhere within the Province, of course they prohibit the manufacture. That is going further and seeking; to prevent its finding its way to people in other Provinces. Mr. Blake — Quite so. Lord Watson — I cannot understand how you say the two things are the same, because to my mind I am not at all satisfied that a trade importation is all the trade. It is a trade either between the Province and some other Province or bbtv.ocn the Province and some foreign country. Mr. Blake — Quite so. Lord Watson— And the trade consists of both things. That trade is not localised within the Province. Mr. Blake — I suspect it is so general as to include importation from a foreign country. Lord Davey — To prevent importation from one Province into another would be contrary to the section in the Act you read about trade being free. Mr. Blake — Doubtless, so far as it was the manufacture of the Province, that section applies only to those cases. Lord Watson — It is very much the same thing as saying there shall not be a sale or barter in a certain commodity between the inhabitants of this Province and the inhabitants of the next. Mr. Blake— That is so. I did not say, I re})eat, that manufacture was the same as importation, I said almost. There are important distinctions in favour of importation, but I think manufacture is and say that if this legislation be otherwise within the power of the Province, the fact that it wipes out a source of ivvcnue which the Dominion has taken l)('fove as to Customs and Excise, and because it affects that and interfer^'s with it, that is no test. ' ' My Lords, the next point I would address myself briefly to is this, that my learned friends claim thntthe Held is occupied, that the ]>ominion having occupied tlb held by the Canadian Temperance Act it is; no longer open to the Provinces to come in and legislate in addition. Lord Watson — The field of prohibition — I do not think he carries it further. Mr. Maclaren — No, my Lord, I meant to apply it to prohil)ition. Lord Watson — He does not argue — in fact it would be arguing against some of the Judgments of this Board as to the right to regulate — only he says regulation must not involve prohibition. Mr. Maclauen — i did not intend to go further in my expression though my language might perliaps have been more sweeping. It is that the iield of jn-ohibition is occupied. 338 Liquor Prohibition Appral, 1896. Prohibition is ambiguous. One needs to define the word to know what is meant by prohibition. Lord Hersc'hkll — You may say practically that it is total under the Canada Temperance Act. The exceptions are so minute that practically you may say it is total. The Ijord Chancellor — Probably for ordinary con- sumption by human creatures, I think it is total i)rohibition. The exception is medicine and manufactures and so on. Mr. Maclaren — Sacramental and medicinal. Lord Watson— Then again it is only prohibition where the Act is applied. In other cases they have a license for selling any quantity. Lord Herschell — It does not touch it. The only ques- tion is this. It is said that anywhere the condition of prohibition shall be a certain plebiscite of the district. Lord Davey — Mr. Justice Sedgewick puts the argument very clearly and concisely at page 105. He says : — " The Federal Parliament has already seized itself of jurisdiction. It has piissed the Scott Act. It lias prescribed the method by which in Canada prohibition may be secured, and is not any local enact- ment purportinf,' to change that method or otherwise secure the desired end for the time being inoperative, overridden by the ex- pression of the controlling legislative will?" Lord Herschell — Supposing a place had not adopted the Act, and where the xA.ct therefore was not actively in operation, but where it might be made to operate at any time by the plel)iscite. Sup))osing the Provincial Ijegislature ga/e a different local option, giving it to a different number and a different body. Mr. Maclaren — Which they have done in a sense. Lord Herschell — In this particular Act I think there is a different question because there is a question whether that could be regarded as toial prohibition, seeing that anyone can buy a dozen bottles, but I am supposing they gave exactly what we have called total prohil)ition under tlie Scott Act. Supi)osing they gave the same power of prohibition, but they gave it to districts differently formed or to a different ,.. — ^:mmm Liquor Prohihition Appeal, 1895. 339 majority— a smaller majority so that in fact, exactly the same prohihition and effect could he hrought into O])eration in the same district in two different ways hy two different sets of persons. Could it he said that those could stand together ? Mr. Maclaren — I hesitate to say that. Lord Herschell — That is very nnicli the question as to those districts in which it has not heen adopted. It may at any time he adopted, and if the Local Legislature have full power to prohihit, it could prohihit on any condition that gave the prohihitory power to any form of local option. Would it he consistent with the Dominion legislation that they should give it to a different majority ? Mr. Maclaren — I am going to argue to your Lordships, and I think I have authority for it, that when this ado})tive or permissive legislation under the Scott Act is not in force, it is for all practical purposes the same as if it was not on the Statute Book. Lord Herschell — If you can make that out. Is that so, hecause that is the difficulty. It is so far in existence and so far effective at this moment in any of these districts that without any interference of any Legislature the people in that district can hring it into force. Mr. Maclaren — Yes. Lord Herschell — That is to say, a certain majority in the district. Now, if the Provincial Legislature enables another majority in the district to hring exactly the same prohihition into force, can those two stand together side hy side ? They conflict directly. That seems to he the difficulty in your way with reference to a total prohihition. Mr. Maclaren — It does not apply to what I was con- sidering just now, hut I shall have to get to Question No. 7. Lord Herschell — That, of course, some people would contend is total prohihition hecause it prohibits the great mass of peoi)le drinking, hut that is another question. Leavnig that Act, that argument would only apply to total prohihition, hecause there would he nothing inconsistent in a certain majority in a district heing aole to hiing about total V 2, 340 Liquor Prohibition Appc tl, 1895. prohibition, and the Provincial Legif-lature enabling that or some other body to bring about sonu'^thing less than total jjrohibition : there would be no inconsistency, and the two might stand together. We are dealing now with the question of total prohibition. Lord Watson — Probably we might be obliged to consider •that. One of the most important questions in the present case appears to me to be what is the true construction of the Canadian Act for establishing temperance ? How are you to read it ? Is the Act to be read as if it had enacted expressly that the only rule of prohibition in Canada should be that enacted by the Statute ? The enactments of the Statute, reading them in that light, are as I read them, alternative. The Act may have one or two effects within the realm of (knada. In those regions where the inhabitants by a Local majority have elected to adopt and apply the Act the rule is one. It is a rule of prohibition. If the reading of the Statute which I have suggested were to be adopted in those regions where that Act has not been adopted, the rule is, the same license that })revailed at the time the Act passed. Mr. Maclaren — That is the construction which I would submit. Lord Watson — It appears to me that if that be the true reading of the Dominion Act — I am not deciding in one way or the other — but I do say if that be the true reading of the Dominion Act, a Provincial Act creating prohibition, where according to the Dominion Act they do not exist, would to my mind, be as great an intrusion upon the Dominion' of Canada as diminishing prohibition in those regions where the prohibitory provisions of the Act had been applied. They would be equally in collision. There would be the same repugnancy in the one case as in the other case if the Act be of that nature in those districts where it has not been adopted. The law of freedom is as much the law as the law of prohibivion in those places where it has been adopted. Mr. Maclaren — I most respectfully submit to your Lordships that the proper construction of the Act, and I think the decision on this part of our case at least would "lead to Liquor Prohibition Ap[)i'(il, 1805. 341 the interpretation that where the Canada Teni})erance Act has not been adopted i)ro]iibition more or less extensive, more or less complete may be made by the Provinces Lord Herschell — When you say i)rohibition more or less complete, we are now distinguishing — at least I am — between that which is prohibition and that which falls short of prohibition. What some people would call prohibition I should not call prohibition at all, but something short of it. Mr. Maclaren — One would need to define terms to consider it. I submit the full length of the argument of my learned friend as to the field being occupied really goes against Hodge v. The (Jiieen. Lord Herschell — No, because what strikes me at })resent is this as regards prohibition proi)erly so called which you take the C!an:ida Temperanc ! Act to be. The Legislature of Canada has said in every par^ of Canada this shall be the law, as to prohibition. I am not saying this is so but I am putting it to you — that a certain majority in a district can bring it about. Supj)osing them to have got that, it may be in the future no Provincial Legislature can say that in any district of the Dominion prohibition shall be brought about in any other way, because if it were you would have at the same time existing over a particular district two laws applicable to i)rohibition which differ in their nature. But then that would not decide the question whether everything short of prohibition might not still in those districts be within the province of the Provincial Ijegislature because as to that the Legislature of Canada has done nothing. It certainly has not occupied the field. Hodf/c v. The (Jiwni has said that you may regulate and restrict it. That is (piite clear. Then to what extent short of prohibition ? It is difficult to see how you can draw any line to say that is within Hodg" v. 2'hc Queen and tlidt is without it. T feel that difficulty at px'^sent, but, then, when you are dealing with prohibition you are dealing with a different thing. Lord I)a\¥j\— Hodge v. I'he (Jueeii strikes me as this : Where liquor traffic may be lawfully carried on, it is within the power of the Municipality or the Provincial Legislature to 84^ Liquor Prohihition Ap/tctil, 1896. make the neceHsary provision for its being carried on in an orderly manner. That is all that Jfodijc v. The Qiiem says. Mr. Maclaren — I submit that it probably goes beyond that. If your Lordships look at page ICO amongst the powers when they are considering questions 4 and 5, one of them is for limiting the number of licenses. Our Courts have held that the Commissioners may cut the licenses in a Municipality down to two. Lord Davey — By allowing the traffic to be carried on where the necessary majority have not voted for prohibition they do not say that every individual in the place may carry it on. It is still within the power of the Municipality to say in a reasonable way there being a traffic which will lead to disorder : "We will take care it is carried on by respectable people." Lord Herschell — And also that it is not carried on by too many. Mr. Maclaren— Yes, and our Courts have held, and I do not know that it is challenged, that under these limiting powers they can limit it to two, not to one, because that would be to create a monopoly, and there is no evidence that the Legislature meant to give any municipal council the power to create a monopoly, Lord HERbCHELL — It means the .' mav limit the number. Mr. Maclaren — Would there be a difference in Toronto between cutting down the licenses to one and saying there shall be no retail license at all. Lord Herschell — ^There would be all the difference between the one being i)rohibition and the other not. Mr. Maclaren limits. There being no retail sales within the Lord Watson — I think it is difficult to dehne. Even regulation can be carried out so as to defeat sales altogether. I do not wish to express any ojnnion on that point, but my difficulty is as to this, whether the object of the Dominion law is not to declare and provide that a rule as to prohibition and WUES Tjiqiior Prolilhltiuu Aiifirnl, 1895. 343 sales is to be a matter depeiiding upon the will of the inhabi- tants in certain districts expressed in the manner indicated by the Statute. There may be, I quite admit, certain powers of regulation in the way of licensing, because I think it was never contenii)lated that every person in the country is to sell. The contemplation of all those Acts is that the sale should be restricted, and section 9*2 gives strong colour to that. It never was intended by the framers of the Act that there should be a selling of liquor at large without license or restriction. Lord Heuschell — Are there any provisions for clubs in the Province of Ontario ? Are there working men's clubs where they could buy a dozen bottles ? Mr. MACLAREN--The majority of the clubs in Ontario are registered under a general Act relating to J3enevolent Asso- ciations, and the Ijicense Act has a clause providing that there shall be no liquor sold even to the members of those clubs. There are certain clubs which have charters. Lord Herschell — Are those chibs with some particular privileges ? , . Mr. Maclaren — They have special i)rivileges. Lord Herscheij. — Is there anything to i)revent a volun- tary club being formed asking no particular ])rivileges ? I suppose there are clubs where ))eo})le may get intoxicating liquors ? Mr. Maclaren — There are some clubs, but in the ordinary club it is prohibited. Lord Watson — It is made a condition of the statutory privileges they enjoy that they shall not consume liquor ; but the question I understood his Lordship, Lord Herschell, to put to you is this, supposing fifty working men founded an association without going to the Legislature, formed a club and took a room and ordered in their own sup))lies of liquor, and met there every afternon and had their drink, would that be prohibited by the law as it stands ? Mr. Maclaren — I could refer to the License Law, but my impression is those voluntary associations are included 844 Liquor I'roliihition Apju'al, 1H*.)5. under tliose cluhK. Yon might that during tliost' three yc^iirs there Hhiill he no |)rohihitory law. Mr. Maclarkn — Tt uieiinH there shall not he the ('ana(hi Teunterance Act at least. The [jOUd (!hanckllor~ You are (juite right to make that answer, hut whether it is a sound one is another uuitter. Lord Watson — You think it meant to ini[)ly that some other authority might introchu-e some other law. Mr. Maolaken — Some otiier law . That is the length of my argument. Then, my Lords, Mr. l^lake used this illus- tration. He said if a nuitter is local, the fact that it aft'ec.s more than one Province does not make it general. I am not using his exact words, hut I think that was the idea. That was in answer to one of your fjordships, wlio put this j)oint, that where a matter remains a local matter affecting one Province, the Province may deal with it, hut if it spreads to other Provinces to such an extent that the Parliament of Canada think it is a matter that affects the general welfare of the Dominion, they may legislate. Li answer to that point of Mr. Blake's, I think one of the cases which he cited and referred to illustrates that point. That is the case of Dohie V. The 'iciupovdJitifii Board. Lord Watson — I do not think that that case in the least degree affects this question. That was a question where, hy a Statute in Canada, a corporate hody was appointed, having its existence equally in hoth Ui)per and Lower Canada. They were severed, and it was held that the Legislature of neither of the two Provinces into which Old Canada was divided — Ontario and Quehec — could touch or repeal that law. Mr. Maclaren — Nor hoth together. Lord Watsox — And that is hy reason that the interests created hy the Act were so nnich one and the same tha'j the one Province could not deal with its repeal and alteration without affecting the interests of another Province. I do not think the present Act would come under that category at all. I do not think there is a word in that case or anything in the principle of the decision of that case to the effect that if this } I 848 Tjiquor Pmhibltiun Appettl, 1895. had been a larger Act, applicable to the whole Dominion, that either of the two Provinces could have repealed that, so far as it afi'ected the other Province which was aflected by the repeal or alteration which one of the Provinces endeavoured to pass in that case and did pass ineffectually ; and in point of fact individual and civil rights in the other Province were affected l/y this legislation. There is no provision made in the Act for joint legislation. Mr. Maclaren — No, ./• . Lord Heuschell — I think the point you are on now may be looked at from another point of view. It is the same question. I suppose, if your opponents are right, then the Canada Tenn)eraiice Act by implication would repeal this A<;t now in question. It was not in operation at the time, it has been only re-enacted since then. Mr. Maclaren — Yes. . ' ' , ^ ^V r' " '"' ";'']_ liord Hehschell — Supposing that to have been in operation, tbat is another way of testing it, were the two so inconsistent that the Canada Temperance Act, when passed, by implication repealed it ? .\ .■...:■■ ' Mr. Maclaren— Yes. .-;.>:. Lord Watson— Unquestionably, that result would follow if it is an Act of the kind that is represented. It would repeal by mere repugna'icy the old Canadian Statute. Mr. Maclaren — Yes ; but our claim is th}it the Canada Temperance Act did not repeal the antecedent legislation. Ijord Hkrschell — I think that is a good way of testing it ; if it did you could not re-enact it. Mr. Maclaren — Yes ; it would be fair to say that Dohic's case lays do^^n something that nmst affect the question of rei)eal. The head-note states the argument. I am reading it from 1st Cartwright, page 851, and I think the first para- graph of the head-note states the Judgment on that point correctly. It says : — " Tht' powers conferred by the J<. N. A. Act, 1H()7, s. 129, upon the Provincial Legislatures of Ontario and Qnebee, to repeal and alter HW WWBiW' i <^i^Tmvt' i ! JSSSS!Sm! BSi H.U.-.^-tl.- M»»' »-■**!>>.■ U-i I'W&^^ttK.^-i Idquor Prohihifiiin Ai)in'(tl, 1805. 84n the Statutes of the Old Parliament of Canada, arc precisely co-extensive with the powers of direct legislation with which those bodies are invested by the other clauses of tiie Act of 1H()7." That is an authority that comes up in connection with the question of repeal. Lord Watson — I think that has heen recognised again and again. • Mr. Maclaren — That I think there is very httle doubt about, and this case of Doliic I thought was an authority on this point. Lord Watson — In that case the powers were not co- extensive. Mr. Maclarkn — They were not. Lord Watson — The ])Ower of repeal involved interference with another Province. Mr. Maclaren — To go back for a moment to the power as to the apphcability of the Canada Temperance Act whei-e not adopted. I refer your Lordshi})s to the expressions used in Hudge v. Tlir (Jiieni. It does not go the full length, Itut I think it goes a long way towards the interpretation we are now contending for. After setting out the sections 4 and 5, those partially prohibitory clauses in 4 and 5, and as to their nature, your Lordships say, at page 181 of Ij. K. 1) Ajjp. ('as. and 3 Cartwright, page 161 : — " As such they cannot be said to interfere with the general regula- tion of trade and commerce which bcdongs to ^hc Dominion Parliament, and do not conflict with the provisions of the '.'anada Temperance Act, which does not appear to have as yet been locHlly adopted." So tnat for the purpose of restriction, so far as they w(u-e in question in Hadtjc v. VV/c (Jiitm your Lordships have declared that the Canada Temperance Act, where not adopted, does not interfere. Lord Herschell — If it had been adopted it clearly would have interfered, because there would ha\(' l)eeii in force in the particular district one law saying you shall not sell at all, and the other saying yon may sell under certain conditions. Mr. Maclaren — So that the more stringent law being followed would override the less stringent. ; 1 -section 2 sinii)ly or whether under their general powers, is equally effective and paramount. Mr. Mac'laren — I must ask your Lordshi})s to consider this in that connection. To my mind tlie last clause of section 91 does distinguish between the general powers and the enumerated. Lord Watson — There is a clear distinction. ■ Mr. Maclaren — So far as refers to sub-section 16. Lord Davey — It has always occurred to me that the Provincial Legislature may legislate in its own Province on a matter on which the Canadian Parliament may also legislate for Canada generally. Mr. Maclaren — That I think is clear. Lord Davey — If not within one of the eiiun)erated classes. Lord Watson — I would also say this, that I think there is a difference between that which is done entirely in virtue of the general power, and that whicli is done under a i-lause ' and I think that which is done und(>r the general power may be in the same position, or their power to act under the general clause, nniy be in the same position with their right to iittiiM Liquor Vrohihition Appeal, 1895. 851 legislate incidentally and properl)^ — properly it must be— for the purpoHes of some of the sections. Mr. Maclaren — Your Lordshij) says "may,'" and I am glad to o})serve your Lordship does not say " must," but as to the enumerated powers " must " would be applicable. Lord Watson — May or may not. Take the very question which we had in one of the most recent cases where a law was enacted in connection with banks. Mr. Maolaren — Tcmunit v. The Union Bank. Lord Watson — As to what effect certain documents in the hands of a banker would have. It was hebl t)iat that was naturally and fairly incidental to the right of legislating as to banking, and was implied ; but in legislating for hanking the Dominion might, if they had chosen, have left that to tlie operation of the existing law, and it did not go the length of saying that under this clause giving them power of dealing with civil rights, the local authority might have regulated that matter (warehouse receipts) and the ground was occupied. Mr. Maclaren — In that case the ground was occui)ied by the Chattel Mortgage provision recjuiring registration which the Dominion exempted from. Lord Watson — That is so. It shows there are some powers of legislation given to the Dominion Parliament incidental to the matters included in some of the classes which may be exactly in the same position as these general powers. Mr. Maclaren — "Ancillary" is the word your Lordships used in the Judgment, and, I think it is a very appropriate word. I was going to remark that as to this power of legislation and the right of the Province to legislate, until the Dominion take hold, we have many illustrations. A great many matters were at the time of Confederation and subse- quently considered as petty matters to be dealt with by Municipal l)y-laws, but which the Dominion under its power of Criminal Law has from time to time made statutory offences. I need not trouble your Lordshi{)s with an enumeration of them, but i)erha[)s I may mention the classes ■■npii li. 362 IJqnor Prohihitiov Appi'ol, 1895. under which they would come. There are a great many matters such as injury to shade trees, — injury to other trees and cro]}s, and a great many matters which at the tinu^ of Confederation were left to the local legislature to allow the Municipalities to deal with ; but since that time the Dominion Parliament under its power of ('riminal Law, finding that these matters were not applicable to one Provmce alone but might be made general for the Dominion have put them as part of the (3riniini!l Law of the Country and made these offences punishable, in the Act of 18()0 there are a nund)er of illustrations of that kind, but again in the Criminal Code of 1892 a large number of subjects which had l)een previously the subject of legislation by Municipal by-law are taken and appropriated by the Dominion under the heading of Criminal Law and put in the Criminal Code and made })unishable offences either by smumary conviction or by indictment. That is, I think, a class of subject in some resi)ects analogous" to the present in which they may be dealt with locally so long as the Dominion leaves them to the local Ijegislature. There are a large number of subjects in that way tbe ])ominion could take possession of under the head of Criminal Law by declaring it to be an offence throughout the Dominion, but the fact that that might come under Criminal Law does not prevent the Province either by itself or by a Municipality legislating with reference to it and punishing infractions of their regulations until there is souie over-riding Doniinion legislation. Lord Watson — These cases are quite intelligible, but in those cases I should be apt to say that if the Dominion Parliament were to occupy what may be called the whole field, in that case they would trench on the legislative power of the Province. . ■ ^ ■^^.< / ,.■,. Mr. Maclaren — They might — the whole field. The emphasis is on " the wbole field " in your Lordship's mind. I do not think tlie whole field is open to them. Then with regard to the observation of my learned friend Mr. Blake that in the United States Constitution tlie word "Regulation" has been held to include prohibition I would call attention to one fact that the well-known law of the United States, what IRMI s^sBscsn: fjiqtior Proliihilivii ApfHUil, 1895. 353 is known as the Maine Liquor Ijaw, and other ])rohil)it()ry hiws of the United St;iti»s Lord Watson — I fiui much disposed to think that these ilhistrations are not of nmch weiglit here because really we are dealiufi; with viU'v g(>neral terms nnd whenever you come to deal with general terms such as "Trade and Counnerce'" and "the Regulation of Trade and Connnerce " it is perfectly obvious you cannot put a genera! meaning to them, you nnist refer to the context of the statute to discovei- what the Legislature nu'ant in employing them. T do not doubt that the Regulation of Trade aiul Connnerce may very fairly include i)roliibition. If the context gave an indication T should not be surprised at its being construed either way in one statute, but then being construed one way in one statute would not lead to its being similarly construed in another. Mr. Maci.ahkn — JVrhaj)s not. but the construction in I'disons' case as referring to a ))articula,r trade goes a long way towards maintaining the ()osition we are claiming in this case. On these grounds I respectfully ask for a revere premises bv any member of the ('lub would be conclusive evidence of ,iale, and on proof of consumption would be conclnsively prf^sumed to have been sold, and so become liable to the Act. The whole thing is concluded. .hithpicnt /iVs^Tivv/.] ^B mmmmggBimm wffmmmmmmmmmimmmmm'ilim 364 lAqvor Prohihition Api)t'((l, 1895. gulrsment Of the. Lords of the Jitdirial Connnitti'i' of tin' Privij Covuril on till' Apfmil of till' ATTORNEY-GENERAL FOR ONTARIO V THE ATTORNEY-GENERAL FOR THE DOMINION OF CANADA, and the DISTILLERS' AND DREWERS' ASSOCIATION OF ONTARIO, from the Supreme Court of Ciinada ; delivered 9th May, 1H96. Present : . i' ' ■ . : The Lord Chancku-ok. ■ ' Lord Hersoheu,. ' . Lord Watson. . Lord Davey. - i V-: ,'- Sir Richard Coich. „' : ' < ' ;-■;. {Di'livered hy Lord ll'iitmii.] Their LordHliips think it expedient to deal, in the first instance, with the seventli question, hecanse it raises a practical issne, to which the ahle arguments of Counsel on hoth sides of the Bar were chiefly directed, and also hecause it involves considerations which have a material hearing upon the answers to l)e given to the other six (juestions suhmitted in this api)eal. In order to ap})reciate the merits of the con- troversy, it is necessary to refer to certain laws for the restriction or suppression of the liquor traffic, which were passed hy the Legislature of the old Province of Canada l)ef()re the Union, or have since heen enacted hv the Parlia- ment of the Dominion, and hy the Legislature of Ontario, respectively. At the time when the British North America Act of 18()7 came into operation, the statute hook of the old Province contained two sets of enactments applicahle to Upper Canada, which, though differing in expression, were in suhstance very similar. rzr" B iW:; Liqtior Prohibition Appeal, 1805. 365 The most recent of these enactments were embodied in the Temperance Act 18(54 ('27 and 28 Vict. c. 18), which conferred upon the Municipal Council of ev(>rv county, town, township, or incorporated villa<^e, " besides the powers at present conferred on it by law," power at any time to pass a by-law prohibiting the sale of intoxicating licpiors, and the issue of licenses therefor, within the limits of the nnniicipality. Such by-law was not to take effect until submitted to and approved by a majority of the qualified electors ; and ))ro- vision was made for its subsequent re])eal, i]i deference to an adverse vote of the electors. The previous enactments relating to the same subject, which were in force at tiie time of the Union, were contained in the Consolidated Municipal Act, 25) and 80 Vict. c. 51. They empowered the Council of every townshij), town, and incorporated village, and the Commissioners of Police in cities, to niake by-laws for [)rohibiting the sale by retail of s])irituous, fermented or other manufactured liquors, in any inn or other house of public entertainment ; and for pro- hibiting totally the sale thereof in sho})s and places other than houses of public entertainment ; provided the by-law, before the final passing thereof, had been duly ai)i)roved by the electors of the Municipality in the manner prescribed by the Act. After the Union, the Legislature of Ontario inserted these enactments in the Tavern and Sho[) License Act, 82 Vict. c. 82. They were purposely omitted from subse(]uent consolidations of the Municipal and Liquor Ijicense Acts ; and, in the year 1886, when the Canada Temperance Act was passed by the Parliament of Canada, there was no Pro- vincial law authorising the prohibition of li(}Uor sales in Ontario, save the Teni})erance Act 18(54. The Canada Temperance Act of 188(j (Revised Statutes of Canada, 49 Vict. c. ]()()) is a])plicable to all the Provinces of the Dominion. Its general scheme is to give to the electors of every county or city the option of adopting, or declining to adopt, the [)rovisions of the second i)art of the Act, which make it unlaAvful for any person "by himself, " his clerk, servant or agent, to expose or keep for sale, or " directly or indirectly, on any pretence or upon any device, to " sell or barter, or in consideration of the purchase of any other " property, give to any other person any intoxicating liquor." /, 2 . I. 356 I/tquor rmliiJn'tioii AppetiU 1805. It expressly declares that no violation of these enactments shall he made lawful ])y reason of any license of any descrip- tion whatsoever. Certain relaxations are made in the case of sales of liquor for sacramental or medicinal i)urposes, or for exclusive use in some art, trade or manufacture. The })rohil)ition does not extend to manufacturers, importers or wholesale traders who sell liquors in (piantities ahove a specified limit, when they have good reason to belitne that the purchasers will forthwith carry their purchase beyond the limits of the county or city, or of any adjoinin^i; county or city in which the provisions of the Act are in force. For the purpose of hringinj^ the second part of the Act into operation, an order of the Governor-Creneral of Canada in Council is required. The order must he made on the petition of a county or city, which cannot he granted until it has been put to the vote of the electors of such county or city. When a majority of the votes polled are adverse to the petition, it nmst be dismissed ; and no similar a))plication can be made within the period of three years from the day on which the poll was taken. When the vote is in favour of the petition, and is followed by an Order in Council, one-fourth of the qualified electors of the county or city may apply to the Governor-Ceneral in Council for a recall of the Order, which is to be granted, in the event of a majority of the electors voting in favour of the a})plication. Power is given to the Governor-General in Council to issue in the like manner, and after similar procedure, an Order repealing any by-law passed by any Municipal Council for the application of the Temperance Act of 1864. The Dominion Act also contains an express repeal of the prohibitory clauses of the Provincial Act of 18()4, and of the machinery thereby i)rovided for bringing them iiito operation, (1) as to every municipality within the limits of Ontario in which, at the passing of the Act of 1880, there was no municipal by-law in force, (2) as to every municipality within these limits in which a prohibitive by-law then in force shall be subsequently repealed under the provisions of either Act, and (8) as to every .municipality, having a munici})al by-law, which is included in the limits of, or has the same limits with, any county or city in which the second })art of the Canada Temperance Act is brought into force before the ■*3-/»i'".mwfv " -''T"'l?iKi'^^''''^*^'" Liquor I'ntliihitidii Ajijunl, 181)5. mt re})f'iil of tlu' In-biw, wliicli by-law, in that event, is declared to be mill and void. Witli a view of restoring to nnniieipalities within the Province, whose powers were att'ected by that repeal, the right to make by-laws which they had })ossesse(l under the hiw of the old Province, the jjegislature of Ontario [)assed Section 18 of 58 Vict. c. 5(). to which the seventh question in this case relates. The enacting words of the clause are introduced by a preand)le which recites the previous course of legislation, and the repeal by the Canada Temjjerance Act of the Upper Canada Act of 18(54 in nnmici[)alities where not in force, and concludes thus,- " it is (expedient that munici- " palities should have the powers by them formerly possessed." The enacting words of the clause, with the exception of one or two changes of ex[)ression which do not affect its substance, are a mere reproduction of the ])rovisions, not of the Tem- perance Act of 18(»4. but of the kindrcMl provisions of the Municipal Act 29 & 80 Vict., c. 51, which had been omitted from the consolidated statutes of the Province. A new [)roviso is added, to the effect that, " nothing in this section contain(>d " shall be construed into an exercise of Jurisdiction by the " Province of Ontario beyond the revival of provisions of law " which were in force at the date of the passing of the IJritish " North America Act, and which tiie subsequent legislation " of this Province purported to repeal." The Legislature of Ontario subsequently passed an Act (54 Vict., c. 40), for the purpose of exi)laining that Section 18 was not nu>ant to re})eal by implication certain provisions of the Municipal Act 29 & 80 Vict., c. 51, which limit its application to retail dealings. The seventh (piestion raises the issue, — whether, in the circumstances which have just been detailed, the Provincial Legislature had authority to enact Section 18 ? In order to determine that issue, it becomes necessary to consider, in the tirst place, whether the Parliament of Canada had jurisdiction to enact the Canada Tenii)erance Act ; and, if so, to consider in the second i)lace, whether, after that Act became the law of each Province of the Dominion, there yet remained })ower with the Legislature of Ontario to enact the provisions of Section 18, The authority of the Dominion Parhameut to make laws 868 Lifjuor Proliiliitioii . liijicitl, 1805. for thf siH)])rosHion of liquor tniffiL- in the Provinces ik main- tained, ill the first [)lace, upon the ground tliat sncii legishi- tion deals with matters affecting " tlie peace, order, a|id good " government of Canada," within the meaning of the intro- ductory and general enactments of Section 1)1 of the l^ritish North America Act; and, in the second [)lace, ui)on the ground, that it concerns " the regulation of trade and com- merce," heing No. 2 of the enumerated classes of suhjects which are placed under the exclusive jurisdiction of the ftuleral Parliament liy that section. These sources of juris- diction are in themselves distinct ; and are to he found in ditil'erent enactments. It was ai)))arently contemplated hy the framers of the Imperial Act of 1H()7, that the due exercise of the enumerated powers conferi-ed u{)on the Parliament of Canada hy Section Ul might, occasionally aiiiUincidentally, involve legislation upon matters which are iiriindjarii' connnitted exclusively to the Provincial Legislatures hy Section 92. In order to pro- vide against that contingency, the concluding part of Section 91 enacts that " any matter coming within any of the classes " of suhjects emnnerated in this section shall not he deemed "to come witliin the class of matters of a local or [U'ivate *' nature comprised in the enumeration of the classes of " suhjects hy this Act assigned exclusively to the Legislatures i" of the Provinces." It was ohserved by this Board in Citizens Ivsuninrc Coiiiindiii of Ciduida v. ['(tisons (7, Ap. Ca. 108), that the paragraph just quoted " applies in its grammatical con- " struction only to No. 1() of Section 92." The observation was not material to the question arising in that case, and it does not api)ear to their Lordships to be strictly accurate. It apj)ears to them that the language of the exception in Section .91 was meant to include, and correctly describes, all the matters enumerated ni the sixteen heads of Section 92, as being, from a provincial point of view, of a local or private ; nature. It also appears to their Lordships that the exception ; was not meant to derogate from the legislative authority given ; to Provincial Legislatures l)y these sixteen sub-sections, save to the extent of enabling the Parliament of Canada to deal with matters local or private, in those cases where such ;' legislation is necessarily incidental to the exercise of the I powers conferred upon it by the enumerative heads of Clause Litiuor I'mliiltitloii Apju'dl, 18W5. 850 91. 'I'hat view was stated and illustrated i)_v Sir Montagiu' Smith ill Citizi'iis Insuran,, ('oiiijtdiiij v. I'arsoiis (7, Ap. ("a. pp. 108, 100), and in CiisliiiKj v. Piifuiii (5. Ap. Ca. 415); and it has been recognised l'\ this l^oard in Tmndiitv. f^iiinn Haul, >ij CaiKtdii (1H04, Ap. ("a. 4(')), and in Altnuiiii-driirnd of' Oiiturii) V. Attnnu'ji-di'ncnil of tlw J)(niiiiiii)ii (1H04, Ap. (.'a. 200). The general authority given to the CiUiadian Parliaiuent, by the introductory enactments of Section 01, is, " to mnke " laws for the jieace, order and good government of Canada, " in relation to all matters not coming within the classes of " subjects by this Act assigned exclusively to the Legislatures " of the Provinces " ; and it is declared, but not so as to restrict the generality of these words, that the exclusive authority of the (,'aiiadian J .irlianient extends to all matters coming within the classes of sul)jects which are enumerated in the clause. There may, therefore, he matters not included in the enumeration, upon which the rarlianieiit of Caniida has power to legislate, ])ecaus(' they concern the peace, order and good government of the Dominion. But to those matters whicli are not s])ecilied among the enumerated subjects of legislation, the exception from Section 02, which is enacted by the concluding words of Section 01, has no apjjlication ; and, in legislating with regjird to such matters, the Dominion Parliament has no authority to encroach ui)on any class of subjects which is exclusively assigned to Provincial Jjegis- latures by Section 02. These enactments appear to their Lordshi])s to indicate, that the exercise of legislative power l)y the Parliament of Canada, in regard to all matters not enumerated in Section 02, ought to l)e strictly contined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench u})on Provincial legisla- tion, with respect to any of the classes of sul)jects enumerated in Section 02. To attach any other construction to the general power which, in supplement of its enumerated jiowers, is conferred upon the Parliament of Canada by Section 01, would, in their Lordships' o])inion, not only be contrary to the intendment of the Act, but would practically destroy the autonomy of the Provinces. If it were once conceded that the Parliament of Canada has authority to make laws ii})pli- cable to the whole Dominion, in relation to matters which in each Province are substantially of local or private interest, T» mo Tjiijnor Prohlhilloii Apjuui}, 1805. upon th«> jiHsnmption that these iniittevs also concern the i)eace, order and ^ood <^overnnient of the Dominion, there is uirdly a snhject enmneriited in Section \)'l upon which it might not h'jtfiil. LS'.I/). MM (Inty of considering' wlictlier the Ciinndii Teni|u'mnc«' Act of 188() reliitcH to th;' i)eace, ordo' und <;ood ^ovcnnncnt of Ciuiiida. in such sctisc as to hrin*,' its provisions within the competency of tiie Ciiniuliaii I'iiiliiiinent. In tliiit ciise tlie controversy related to the vaHdity of the Canachi Teni))erance Act of 1H7H ; and neithei- the Dominion nor the Provinces were represented in tiie ar;^Mnnent. It arose hetween a [)rivate |)rosecutoi' and a person who had been convicted, at his instance, of violating' the provisions of the CJanadian Act, within a district of New Hriniswick in vviiich the ))rohihitory chmses of the Act had been a(h)pte(l. J^ut the provisions of the Act of 1M7H were, in all material respects, the same with those which are now embodied in the Canada Temperance Act of IBHC) ; and the reasons which were assi<,nied for sustaining the validity of the earlier, are, in their Lordshi|)s' opinion, e(|nally applical)le to the later Act. It tluMcfore appears to them that the decision in lliisscll \'..__2'lir Oiicrii nmst be acce])ted as an authority to the e\tent to which it goes, mimely, that tlu; restrictive provisions of the Act of 188(5, when they have been duly brought into operation in any provincial area within the Dominion, must receive ettect as valid enactments, relating to tin |)eace, order, and good government of ('anada. That point being settled by decision, it becomes necessary to consider whether the Parliament of Canada had authority to pass the Temperance Act of 188(5, as being an Act for the '• regulation of trade and commerce '" within the meaning of No. '2 of Section 91. If it were so, the Parliament of ('anada would, under the exception from Section *.)2. which has already been noticed, be at liberty to exercise its legislative authority, although in so gislative authority which it derives ♦^^rom the provisions of Section 1 ^ other than No. 8. 1 •'•i^'"':-* ft Liquor I'rohihiliiiii Apiicnl, 1895. HM Their L()i'(lsliij)s avo likinvise of o])inioii tliiit SiH'tioii 1)2, No. *.), (toes I'ot /^ive I'roviuc-iiil Lcj^nshitures any vij^'lit to iiialvc laws for the ;!''\)litioiiof the hquor tniiiic. It assi^nis to tlieni " shop, saloon, tavern, auctioneer and other hcenses, in order '' to the raising of a revenue for ))rovincial, local or unniicipal " i)urposes."' It was held by this IJoard, iu //<*(/,//,■ v. Thr (Juciii (1) Ap. Ca. 117), to include the right to iuii)ose reasonahle conditions upon the licensees, which are in the nature of regulation ; hut it cannot, with any show of reason, he con- strued as authorising the abolition of the sources from which reveinie is to he raised. The only enactments of Section 02 which ap{)(>ar to their Lordships to have any relation to the authority of Provincial Legislatui'es to make laws for the su})pression of the liquor traffic are to l)e found in Nos. 1;? and 1(5, which assign to their exclusive jui-isdiction, (1) '• |)roperty and civil rights in the Province," and (2) " generally all mattei-s of a " merely local or private nature in the Province. ' A law which prohibits retail transacti(nis, and re- stricts the conHumi)tion of liquor within the ambit of the Province, and does not affect transactions in liquor between persons in the Province and persons in other Provinces or in foreign countries, concerns pro))erty in the Province which would be the subject matter of the transac- tions, if they were not prohibited, and also the civil rights of })ersons ni the Province. It is not im})Ossible that tlie vice of intemperance may i)revail in particular localities within a Province, to such an extent as to constitute its cure by restricting or prcliibiting the sale of li(pu)r a matter of a nier(!ly '')cal or private nature, aid therefore falling jiriniK J'orif within No. 1(), In that state of nuitters, it is conceded that the Parliament of Canada could not im[)ei'atively enact a prohibitory law adapted and coiitiiu'd to the re(phrements of localities within the Province, where prohibition was urgently needt d. It is not necessary, for the pur])oses of the present appeal, to determine whether provincial legislation for the su[)|)ressi()n of the liquor traffic, confined to matters which are [)rovincial or local within the meaning of Nos. 18 and Ki is authorised by the one or by the tther of these h(>a(ls. It cannot, in their Lordships' opinion, be logically held to hill within both of 8(54 Li(juiir l'niliii)ilimitted to the judicial tribunals of the country. In theii' Lordships' opinion, the express repeal of the old |)rovincial Act of 18ti4 hy the Canada Temj)erance Act of LS.SG was not witlnn the authority of the larliament of CJanada. It is true that the l'j)per Canada A.ct of l.S(>4 was (-ontinued in force within Ontario, by Section 129 of the British North America Act, " until " repealed, abolished oi' altered by the Parliament of Canatla. " or by the provincial legislature,' according to the authority of that Parliament. " or of that legislature." It ai)pears to their Lordshi})s that neither the Parliiinient of C'anada nor the provincial legislatures have authority to repeal Statutes which they could not directly enact. Their Lordshijis had <)ccasion, in l)i)hl<' v. The 'I'riiipDnilifirs iUnml (7 Ap. Cn. 18('») to consider the ])ower of reju'al com])etent to the legislature of a Province. In that case, the L(>gislature of Quebec hiid re})ealed a Statute continued in force after the Union by Section 129. which had this peculiarity, that its [)rovisions api)lied both to Quebec and to Ontario, and wcu'e inca|)al)le of being severed so as to nuike them ai)])licai)!e to one of these Provinces only. Their Lordsiiijjs held (7 Ap. Ca. 147) that the ))owers conferred " upon the i)rovincial Legislatures '• of Ontario and Quebec to rei)eal and altei the Statutes of " the old Parliament of th<' Province of Canada are made " ))recisely co-extensive with the powers of direct legislation •• with which these bodies are iiivest"d by the otlu'r clauses " of the Act of 1H(>7 " ; and that it was beyond the authority of the legislature of l^uei)ec to repeal statutory enactnuMits wdiich att'ected both Quebec and Ontario. The same princii)le ought, in the opinion of their ljordsliii)s. to l)e a|)|)lied to the present case. The old Temj)erance Act of 1H(')1 Wiis ))asse(l for rpjjcr Cannda, or in other words for the Province of Ontario ; and its [trovisions. being cnntined to that Province onlv, (,'onld not hn\t> heen directlv enacted In tlie I'lnliament 366 Liquor Prohihifiov Appeal, 1805. of Canada. In the present case, the Parh'anient of Canada would have no power to pass a [>rohil)itorv law (|or the Province of Ontario ; and could therefore have no authority to repeal, in ex|)ress terms, an Act which is limited in its o])eration to that Province. In like manner, the exju-ess repeal, in the Canada Temperance Act of 1886, of liquor prohihitions adopted hy a nnmici})alitv in the Province of Ontario under the sanction of provincial legislation, does not appear to their Lordships to he within the authority of the Dominion Parliament. * The ([uestion nmst next he considered, whether the provincial enactments of Section 18, to any, and if so to what extent, come into collision with the provisions of the Canadian Act of 1886 ? In so far as they do, j)rovincial must yield to Dominion legislation, and must remain in aheyance unless and until the Act of 1886 is repealed hy the Parliament which i)assed it. • The prohihitions of the Dominion Act have in some respects an effect which may extend heyond the limits of a Province ; and they are all of a very stringent character. They draw an arhitrary line, at 8 gallons in the case of heer, and at 10 gallons in the case of other intoxicating liquors, with the view of discriminating hetv/een Avholesale and retail transactions. Below the limit, sales within a district which has adopted the Act are ahsolutely forhidden, exce})t to the two nominees of the Lieutenant-Governor of the Province, who are only allowed to dis})Ose of their purchases in small cpiantities, for medicinal and other s})ecilied purposes. In the case of sales ahove the limit, the rule is different. The manufacturers of pure native wines, from grai)es grown in Canada luive special favour shown them. Manufacturers of other liquors within the district, as also merchants duly licensed, who carry on an exclus'vely wholesale husiness, may sell for delivery anywhere heyond the ih-'^r^"^. unless mcli delivery is to he made in an adjoining district wlK^re the Act is in f: enforce -certain lu'ohibitioiis, if it tlionglit fit to do ho. But the prohibitions of these Acts, whicii constitute their objoct and their essence, cannot with the least degree of accuracy l)e said to l»e in force anywhere, until they liave BeSn^ locally adoi)ted. If the j)rohibitions of the (Canada Temperance Act had been made imp'rative throughout the Dominion, their Lor(lshii)s niiglic have lieen constrained by prexious authority to hold that the jurisdiction of the Legislature of Ontario to pass Section 18, or any similar law, had been superseded. In that case no provincial prohihitions such as are sanctioned by Section 18 could have been enforced by a municipality without coming into conflict with the paramount law of Canada. For the same reason, provincial prohibitions in force within a particular district will necessarily become inoperative whenever the prohibitory clauses of the Act of 1886 have been adopted by that district. But their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the C^aJiadian Act are not, and may never be in force. In a district which has, by the votes of its electors, rejected the second part of the Canadian Act, the option is abolished for three years from the date of the poll; and it hardly admits of doubt, that there could be no repugnancy whilst the option given by the Canadian Act was suspended. The Parliament of Canapc(il, 1806. Ansv^ers to Questions V. and VI.— Their fjordships con- sider it unnt essary to give a categorieal rej)ly to cither of these questions. Their opinion upon the points which the (juestions involve has heen sufficiently explained in their answer to the seventh question. Their Lordshi})s will hunihly advise Her Majesty to discharge the Order of the Supreme Court of Canada, dated the 15th January 1895 ; and to suhstitute therefor the several answers to the seven Questions sulnnitted hy the (lovernor- General of Canada, which have heen already indicated. There will he no costs of this Appeal. m Williaiu Brown & Co. Limited, PriuturK, &c., London, K.C mm * 'WW« '» wiym,." i ".'" ' j'" ".y I i j i n iii i i My ii .v.; ! ), ; ^! *!; !^.-^ ships con- ev of thene quentions wev to the /lajesty to ada, dated the several Governor- indicated.