In re Prohibitory Liquor Laws

In re Prohibitory Liquor Laws
Collection
Supreme Court Judgments
Date
1895-01-15
Report
(1895) 24 SCR 170
Judges
Strong, Samuel Henry; Sedgewick, Robert; King, George Edwin; Gwynne, John Wellington; Fournier, Télesphore
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In re Prohibitory Liquor Laws (1895) 24 SCR 170
Date: 1895-01-15
In re Provincial Jurisdiction to pass Prohibitory Liquor Laws.
Special Case Referred by the Governor General in Council.
1894: May 1, 2, 4; 1895: Jan. 15.
Present:—Sir Henry Strong C.J., and Fournier, Gwynne, Sedgewick and King JJ.
Reference by Governor in Council—Constitutional law—Prohibitory laws—Intoxicating liquors—British North America Act, secs. 91 and 92—Provincial jurisdiction—53 Vic. chap. 56 sec. 18 (0.)—54 Vic. chap. 46 (O.)—Local option—Canada Temperance Act, 1878.
1. A provincial legislature has not jurisdiction to prohibit the sale, either by wholesale or retail, within the province, of spirituous, fermented or other intoxicating liquors.
Per the Chief Justice and Fournier J. dissenting: A provincial legislature has jurisdiction to prohibit the sale within the province of such liquors by retail, but not by wholesale; and if any statutory definition of the terms wholesale and retail be required, legislation for such purpose is vested in the Dominion as appertaining to the regulation of trade and commerce.
2. A provincial legislature has not jurisdiction to prohibit the manufacture of such liquors within, or their importation into, the province.
3. The Ontario legislature had not jurisdiction to enact the 18th section of the Act 53 Vic. ch. 56, as explained by 54 Vic. ch. 46. The Chief Justice and Fournier J. dissenting.
His Excellency the Governor General in Council, by order in council bearing date the twenty-sixth day of October, in the year of our Lord one thousand eight hundred and ninety-three, passed pursuant to the provisions of the Revised Statutes of Canada, chapter 135, and intituled: "The Supreme and Exchequer Courts Act," as amended by section 4 of the act passed in the 54th and 55th years of Her Majesty's reign, chaptered 25, referred to the Supreme Court of Canada for hearing and consideration the following questions, namely:—
1. Has a provincial legislature jurisdiction to prohibit the sale within the province of spirituous, fermented or other intoxicating liquors?
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 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 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 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 subsections of the 99th section of "The Canada Temperance Act," or any of them (Revised Statutes of Canada, chapter 106, section 99)?
7. Had the Ontario Legislature jurisdiction to enact the 18th section of the Act passed by the legislature 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 passed by said legislature in the 54th year of Her Majesty's reign, and intituled: "An Act respecting Local Option in the matter of Liquor selling"?
The court stated its opinion to the effect that all the said questions so referred as aforesaid should be answered in the negative, and the reasons therefor appear from the opinions delivered by their Lordships Mr. Justice Gwynne, Mr. Justice Sedgewick and Mr. Justice King, hereinafter given. His Lordship the Chief Justice, and his Lordship Mr. Justice Fournier, dissenting from the opinion of the majority of the court, were of opinion that the said questions should be answered in the affirmative, with the exception of questions three and four, which they were of opinion should be answered in the negative, and the reasons therefor appear from the opinions of the Chief Justice and Mr. Justice Fournier, also hereinafter given.
Curran Q.C., Solicitor-General of Canada for the Dominion.
Cartwright Q.C., Deputy Attorney General, and Maclaren Q.C., for Ontario.
Cannon Q.C., Assistant Attorney General, for Quebec.
Maclaren Q.C, for Manitoba.
Wallace Nesbitt and Saunders, for the Distillers and Brewers' Association by leave of the court under 54 & 55 Vict. ch. 25 sec. 4.
The Solicitor-General.—The main question to be decided upon this reference is, whether a provincial legislature has jurisdiction to prohibit within the province the sale, manufacture or importation of spirituous, fermented or other intoxicating liquors?
It is hardly necessary to discuss whether the province has the right to prohibit the sale of liquor irrespective of quantity. By the British North America Act the regulation of trade and commerce is absolutely within the power and jurisdiction of the Dominion Parliament, and for a province so to prohibit would be an infringement upon the powers that have thus been conferred in a distinct and positive manner upon that parliament.
It is true that the Dominion License Act, 1883, was held by the Privy Council to be ultra vires, and it has been contended that the judgment in that case was in conflict with Russell v. The Queen[1] which held the Canada Temperance Act to be intra vires, but that tribunal pointed out that there was no conflict, that in deciding the Canada Temperance Act case they proceeded upon a certain line, and in deciding the License Act case they were proceeding upon a different line. I wish to refer to a statement made by the Chief Justice in a case many years ago, one of the very first cases in this court, Severn v. The Queen[2], which I think is of some importance:
Some arguments addressed to the court seem to have been intended to elicit opinions as to the locality of the power of prohibiting legislation with reference to the trade in spirituous liquors, wine and beer. This, so far as retail trade is concerned must depend upon the proper answer to two questions:—First, do the local legislatures possess what is called the police power? Secondly, if they do, does it authorize them to legislate so as to prohibit or only to regulate the retail traffic in liquors? The decision of this case does not call for any answer to either of these questions, and I therefore forbear from expressing any opinion upon them.
I quote this to show that this case presents a feature which comes up for the first time and I am satisfied that there will be found in the decisions of the Privy Council reasons why there should be, for the proper adjudication of this question and the determination of where the power to prohibit lies, a definition given, as I think a definition has already been given in the Canada Temperance Act[3], of what is wholesale and what is retail, and my first contention is that the power to determine that must lie in the authority having the regulation of trade and commerce, the superior power. In Russell v. The Queen[4], the Privy Council, in affirming the judgment which maintained the constitutionality of the Temperance Act, gave their concurrence and sanction to the definition which was given by the Dominion Parliament as to what is wholesale.
In the case of Citizens Insurance Co. v. Parsons[5], the Privy Council say that in construing the words "regulation of trade and commerce" they would include political arrangements in regard to trade requiring the sanction of parliament, the regulation of trade in matters of inter-provincial concern, and it may be that they would include the general regulation of trade affecting the whole Dominion.
The legislation with regard to trade and commerce, to my mind, gives to the Dominion the control of the importation and manufacture of intoxicating liquors. That is a branch of the subject which I think requires but very little elaboration. The definition Which I have just read here stating that this would include political arrangements in regard to trade requiring the sanction of parliament, seems to be self-evident. If we wish to make a treaty of commerce with France with regard to wines, or with the United States with regard to our trade relations, the Dominion Parliament has in the past, without any question, made such arrangements, and there is no doubt that here the judgment of their Lordships comes directly into play when they speak of arrangements in regard to trade requiring the sanction of parliament, the commerce or trade in matters of inter-provincial concern; here we have the manufacture of liquors in our country, a very large industry, in which persons in the different provinces are engaged, and in our inter-provincial trade these commodities play a very important part. They say this would include the general regulation of trade affecting the whole Dominion. The wholesale traffic, at all events, is one which involves every province, and which needs to be regulated by a parliament having jurisdiction over the whole area of the country.
I may state here that we have also, in the classification of these subjects in the statutes of old Canada prior to confederation, something that may guide us, to some extent at all events, in arriving at our conclusion upon this point. If we take up the Consolidated Statutes of Canada of 1859, we find there that the subjects which fell under the general control, which affected the two provinces generally, were disposed of in the general consolidation of the statutes, including all the legislation regarding the importation and manufacture of liquors. The excise laws are side by side with the customs enactments showing that such importation and manufacture were subjects of general concern in which the trade and commerce of the united provinces were involved.
[The learned Solicitor General then referred at length to the case of Suite v. Three Rivers[6]; Lareau[7]; Clements on the Canadian Constitution[8]; and In re Local Option Act[9]; contending that the power of prohibiting by retail was given to local legislatures under the words "municipal institutions" in section 92 British North America Act.]
All parties in discussing this question, the local legislature in legislating upon it, the Dominion in legislating upon it, have felt that there was an absolute necessity to draw a distinction between wholesale and retail.
The constitution will be utterly unworkable if you cannot draw a distinction between wholesale and retail. If, under municipal institutions, the legislature of a province could delegate to a municipality the power to prohibit, to absolutely prohibit by retail, I say that in logic, and common sense, it must have that power vested in itself. No doubt I am met by the argument that the Privy Council has decided that there is no distinction as to retail at all. The regulation of trade and commerce is vested in the Dominion Parliament, and there is no more important or essential element in the regulation of trade and commerce than the definition as to what is wholesale and what is retail. There must be some authority.
The sixth question is: "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 subsections of the 99th section of the Canada Temperance Act, or any of them?"
I have sought to point out that the 99th section of the Canada Temperance Act was the governing and the defining point. The answer to this must be in the affirmative.
My learned friends, who represent the distillers, say that this is an ambiguous question, and proceed to discuss it as though they were discussing the second question over again. Tinder this section 99 it will be noticed that the Dominion Parliament was very careful in all its subsections with regard to the rights which were dealt with. There was the question, for instance, of religious liberty, and there was the one exception made with regard to the manufacture or importation or sale of wine for sacramental purposes.
The Dominion Parliament having within its control the protection of the civil and religious liberty of the people in this Dominion, and the peace, order and good government of the people, no local legislature could prohibit, for instance, the sale of wine for sacramental purposes, and thus deprive some of the largest bodies of christians in the Dominion of the right of exercising freely their religious ideas and convictions. So it would be, under trade and commerce, with regard to that subsection which states that intoxicating liquors or alcohol may be sold for the purpose of mechanical developments of various kinds. Alcohol may be necessary in the carrying on of a whole host of trades in the country and have none of the attributes of alcoholic beverages when manufactured. No local legislature could possibly have the power to prohibit the use of alcohol in carrying out those works which are necessary for the development of trade and commerce in the Dominion.
As to the last point I agree that the judgment of the Court of Appeal for Ontario is good and sound in every respect.
[The Chief Justice: I shall call upon counsel in the order of precedence of the lieutenant governors. I will call upon Ontario first.]
Maclaren Q.C. I appear for the province of Manitoba as well as Ontario. My learned friend Mr. Cartwright appears for Ontario with me. I appear for Manitoba alone. My instructions from the two Attorneys General are the same.
With regard to the position of this question, I submit, may it please your Lordships, that it is useful to look at the state of matters at the time of confederation. The British North America Act of 1867 was no doubt passed with a view to the existing state of things.
The phrases that are there used are largely taken from the headings of legislation that was then on the statute book of old Canada, among them being trade and commerce and "municipal institutions"—so that I would first ask your Lordships to interpret the expression used in those sections of the British North America Act based on the Quebec resolutions not by an Imperial dictionary exclusively but by a Canadian dictionary, so to speak.
Looking then at the state of the law before confederation, which, I think, we may do, we find, for instance, the Consolidated Statutes of Lower Canada which have been referred to by the Solicitor General giving the power of prohibiting the sale of spirituous liquors to the municipal council. (Chap. 24.) The state of the law apparently in Upper Canada at this time was that a prohibitory law could be passed prohibiting shop and tavern licenses, but not the sale in original packages. I am not aware exactly where this importation in original packages came from, but you could not sell 100 gallons provided it was not in the original packages, in other words, if bulk was broken; it would then cease to be protected. With regard to the other two provinces of which the Dominion was originally composed I speak with less certainty and positiveness; but, so far as I am able to understand the statutes of those provinces, there were for the rural parts at least, not the same kind of municipal institutions as had been adopted or adapted to Lower and Upper Canada.
So far as I can form an opinion from looking over the statutes of the provinces of Nova Scotia and New Brunswick, it seems to me that to this day, for instance in Nova Scotia, they deal directly with a good many matters relating to roads and the like which in the provinces of Ontario and Quebec were, even before confederation, left to municipal authorities. I notice money grants and the like. I infer from the state of legislation that some of the details of this legislation were not so fully or generally carried out as they were in Upper and Lower Canada at the time of confederation.
The province of Manitoba has adopted in entirety the Ontario municipal system, but it has been created since the British North America Act, which it cannot therefore help to interpret.
So that my argument on that point is that when the legislatures of the provinces, and the British North America Act legislating respecting those provinces, used that title "municipal institutions," we may assume they used it giving to it the well established meaning it had in the country with regard to which they were legislating.
However, we have to admit this, that some of the enumerated subjects in section 91 were matters that were formerly under the head of "municipal institutions," and I could not pretend to argue that those subjects which are given by name to the Dominion, such as "weights and measures" in section 91, are not taken out of the respective categories in section 92 under which they might otherwise fall, but my argument is that that is limited to those subjects which are taken out by name.
Then, as to clause 9, it may have been inserted giving the legislature the license power for the purpose of revenue for this reason: the Dominion is given, under section 91, the right to raise a revenue by any system of taxation, and the only power given to the local to tax is by direct taxation within the province. The Privy Council has decided, in the insurance and other cases, that licenses are a sort of indirect taxation, so that if they had not put in that section (subsection 9) it might be presumed that the local legislatures were not authorised to raise a revenue by that indirect means of taxation, viz., licenses. Then with regard to this question of "municipal institutions," one of the clearest utterances of the doctrine is that laid down by the first Chief Justice of this court in an Ontario case, Re Slavin and Orillia[10], which puts this matter better than I could do.
I would also refer to the case mentioned by his Lordship the Chief Justice, The Queen v. Taylor[11] where there is a very thorough discussion of this branch of the subject. It is practically the same case as came before this court later in Severn v. The Queen[12]. See also Suite v. Three Rivers[13].
I have to admit that the regulations by "municipal institutions" before confederation were very largely of what might be considered retail, not exclusively, but in a general sense. In the province of Ontario, for instance, original packages were exempt from municipal supervision in case the original package contained a certain quantity. Prior to the decision in the License Act of 1883 it might have been open to argument, as the Solicitor General has argued, that there was a difference between wholesale and retail, but I respectfully submit that since the decision in the Liquor License Act case we are justified in assuming, for such purposes as we are arguing to-day, that there is really no difference between wholesale and retail, and that the two must stand or fall together. I am speaking now only of the sale. That I claim is the effect of the decision in the case of the License Act of 1883, the McCarthy Act, and the amending Act of 1884. When the matter was argued before this court the wholesale trade was referred to as properly coming under the matter of regulation of trade and commerce, but not shop or tavern licenses, or the retail trade; your Lordships were drawing a line of distinction and demarcation which was swept away by the Privy Council; they said in effect, that not only was the retail trade to be licensed, and regulated at least, by the provinces, but the wholesale trade as well.
There is a case as to the difference between wholesale and retail which I would like to refer to as a part of my argument. It is the case of Lepine v. Laurent[14] decided in 1891.
The next point I would refer to is this, that in the case of Russell v. The Queen[15], which was cited by my learned friend, and which I think will be used by our friends on the other side to show that we have not the power of prohibiting, the case of "municipal institutions" was not considered; that appears from the report itself.
In this case we are not called upon to reconcile conflicting legislation. That may come up hereafter, but for the present your Lordships are only asked whether the provinces have such power, assuming that the Dominion has not exercised it. That, I think, is a fair way of putting the questions which have been submitted by His Excellency in the present case, and for that purpose I think it is useful to remember, in considering Russell v. The Queen(2), that what was in question there was a Dominion Act, and the expression used in Hodge v. The Queen[16] is particularly applicable, because I claim that prohibitory legislation is one of those very questions or subjects which, in one aspect and for one purpose, may well fall within section 92, and in another aspect, and for another purpose, may fall within section 91. In Hodge v. The Queen(3) the possible conflict is referred to and their Lordships base their decision on the ground that there is no conflict (The learned counsel then reviewed the argument of counsel and the effect of the decision of the Privy Council on the McCarthy Act)
With regard to the question of regulation, I think this much can be said, that the decision in Hodge v. The Queen[17], and the decision on the McCarthy Act, at least have settled this, that the licensing and the regulation of the liquor traffic are in the provinces. That, I think, is the outcome of these discussions. I think they have decided that they have the regulation. My argument is that the power to prohibit is involved in the power of regulation, and I attach some importance to that principle. I do not know that I have ever seen that more tersely put than by his Lordship the late Chief Justice of this court in the case of Fredericton v. The Queen[18].
It is difficult to say that a provincial legislature can prohibit 499 people out of 500 from engaging in something, but that they cannot prohibit the 500th.
The powers which we are now claiming for the provincial government are the powers which all the provinces have since confederation exercised, almost without challenge, regarding the sale of poisons and such substances under the Pharmacy Acts that have been passed in the various provinces. For instance, in the Ontario Act, which is chapter 151 of the Revised Statutes of Ontario, section 26 makes provision as to the sale of these poisons. The only case of which I am aware where the validity of these acts came up, and where the constitutional question was raised, was in the province of Quebec, in the case of Bennett v. The Pharmaceutical Association of the Province of Quebec[19].
We claim provincial authority on this subject of prohibition under the head of "matters of a local and private nature" in subsection 16, as well as under "municipal institutions." If it should be objected to us on the other side that this is really an interference with the Canada Temperance Act, or with the authority of Russell v. The Queen[20], our answer to that is this, that we have the authority of the Privy Council not only for the principle laid down in Hodge v. The Queen[21], but also that this power of legislation may exist concurrently in the two bodies.
The first case in which, I think, that principle was clearly laid down, was L'Union St. Jacques v. Bélisle[22]. Lord Selborne gave the judgment in that case. The next case in which the same doctrine was laid down, is Cushing v. Dupuy[23]. I refer particularly to page 415.
We find this same rule laid down in the recent case regarding the Assignment Act of Ontario, 1894[24]. So that our argument on this ground is, that so long at least as the Dominion Parliament has not passed a prohibitory law, that it is competent for the local legislature to pass such a prohibitory law as is referred to in the questions before your Lordships.
Assuming then that the province might have the power, under one or other of those heads in section 92, to pass it, if it be not taken out of their hands by something that is found in section 91, the only one of the enumerated classes that have been suggested on the other side as interfering with it, is the regulation of trade and commerce. Now, I submit that such a law as your Lordships are now asked about does not properly come within the regulation of trade and commerce, within the meaning of section 91 of the British North America Act.
If we are looking for the origin of things, it is possible that the words "trade and commerce" may have been taken from the Consolidated Statutes of Canada. There are 22 chapters of the Consolidated Statutes of Canada that are grouped together under the title of "trade and commerce." It is instructive to notice that, with I think two exceptions, all the subjects that are treated of in the Consolidated Statutes of Canada, under the head of "trade and commerce," are assigned to the Dominion. One is the protection of persons dealing with agents, and the other is as to limited partnerships.
As to the meaning of the words "regulation of trade and commerce," the first authoritative definition of the meaning of the words "trade and commerce" is that found in Citizens' Ins. Co. v. Parsons[25]. There their Lordships laid down a definition which, I think, is very strongly in favour of the position taken by us to-day,, I think the words were taken from this side of the Atlantic, and the key to the interpretation, if they are used in any technical sense, is rather to be sought on the continent of America than on the continent of Europe.
The only other discussion as to the meaning of trade and commerce, to which I will refer, is found in Bank of Toronto v. Lambe[26]. On this question relating to the sale, there are a number of cases in our own courts, as The Queen v. Taylor[27]; Ex parte Cooey[28]; Blouin v. Corporation of Quebec[29]; Molson v. Lambe[30]; Poulin v. Corporation of Quebec[31]; Danaher v. Peters[32].
So far I have spoken of the sale exclusively. Nearly all that has been said regarding the sale applies also to the manufacture, with this exception, I think, that manufacture is in a certain sense more local in its nature than even sale.
So far as it is a question of power, I think if the local legislature found it necessary, to effectually carry out the power of prohibiting the sale to prohibit the manufacture, it would so extend.
And the fact that the Dominion Parliament has the right to tax imports, or to put an excise tax upon manufactures, is no ground for withdrawing this from the local authority.
The only other remaining question which I think it necessary to refer to specially is the last, as to the validity of the Local Option Act, which I will do very briefly.
A great deal of that which I said with regard to the sale, in the earlier part of my argument, will apply to this seventh question; in fact, I found it impossible to separate the discussion of the first question submitted to your Lordships from the last question. I have put in the factum the principal points upon which I rely, in addition to those that were urged in the case of Huson v. South Norwich.
I refer especially of course to the reasons given by the Court of Appeal in the Local Option Case[33].
I would also refer to a decision of the Court of Queen's Bench of Quebec Corporation of Huntingdon v. Moir[34], on article 561 of the Municipal Code, corresponding to the Local Option Act, and to the analogous case in Nova Scotia of Keefe v. McLennan[35].
The other ground to which I would refer with regard to this local option matter, is that the Ontario local option law may be sustained as a license law. Briefly, I put it in this way. Under the Ontario license law there are three classes of licenses to be given, wholesale, shop and tavern. Under the Local Option Law you may abolish shop, leaving wholesale and tavern, or you may pass a by-law abolishing tavern, leaving wholesale and shop; or you may pass a by-law or by-laws abolishing shop and tavern, leaving only wholesale. I submit that that is still a license law, and that under the authority to pass a license law the province of Ontario had power to pass the local option law, and that it may be sustained as a license law. That, briefly, is the ground upon which we claim the validity of the local option law of Ontario.
Under that Act wholesale licenses may issue, and cannot be prohibited, so that the point I am making is that this may be sustained as a license law inasmuch as wholesale licenses may issue in any event.
Cartwright Q.C.—My learned friend has gone so very fully into the matter that really there is very little with which I need trouble your Lordships. As I judge from the factums, we are all agreed that the important question is the question of sale; but, before passing to the question of sale, I would just make this observation with regard to the question of importation. It will, I think, be argued on behalf of the brewers and distillers that the right to import, if that be found to be in the Dominion, would necessarily include the right to sell. That, I submit, by no means follows. It is contrary altogether to the decisions in the United States, and I think it is contrary to the observations which have been made by the Privy Council. In two cases, Citizens Insurance Co. v. Parsons[36] and Colonial Building and Investment Association v. Atty. Gen. of Quebec[37], it has been suggested that while the Dominion may have the power to incorporate companies, with power to deal in lands and so forth, throughout the Dominion, it may still be quite possible that a company so incorporated could do no business in any province in consequence of the laws of the province with regard to land preventing them from so dealing. That, I submit to your Lordships, would be entirely analogous to the question of importation carrying with it the right to sell.
Then, it may be that those corporate bodies so constituted, and given, to some extent, life, have to go to the provinces to get further legislation in order to enable them to really fulfil the purposes for which they were principally incorporated.
Coming to the other question, as regards the right to sell, that of course would be claimed under the head of "municipal institutions," subsec. 8 of sec. 92, and what I suggest to your Lordships as the true view is, to look at "municipal institutions," if I may say so, historically, and see what "municipal institutions" included at the time the British North America Act was framed.
Looking at the British North America Act, there is no indication of anything to show that it was in any way intended to cut down or modify the powers that were then possessed by the various provinces with regard to their own affairs, but that all the powers that were then possessed with regard to the municipalities were intended to be continued. Then we find that in Ontario, Quebec and Nova Scotia these powers were found in the Municipal Acts, or the Acts relating to municipal affairs, and the highest courts of all those provinces have held that these powers remained in the provinces. That, I submit to your Lordships, is a strong argument in favour of the power, to the extent to which it is found in existence in 1867.
Then, if it is said that the question of trade and commerce in any way comes in conflict, I submit that "trade and commerce" must be modified, so far as may be necessary, in order to give full effect to what is covered by "municipal institutions." Because, looking at section. 92, the particular phrase at the beginning of the section is, "that in each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated." So that their power is to cover all those matters that necessarily, or for convenience, come within these purposes.
Then we find "municipal institutions" followed, in section 92, with the provision about licensing shops, and so on. That is really, I think, the only mention that there is of anything, in terms, which relates to liquor.
Then, turning to the decisions, I submit nobody can deny now that the whole question of regulation, by way of licensing and so forth, is entirely in the hands of the province in the most absolute form. The Dominion cannot interfere with it, and it would be strange if under the power to regulate concerning trade and commerce the Dominion could prohibit a traffic which it cannot regulate.
The mere fact that such an Act as the Canada Temperance Act was held to be valid and within the power of the Dominion Parliament does not of itself, looking at that decision, take away the prohibitory power of the province.
To a certain extent licensing Acts include prohibitory provisions. For instance, sales are not allowed on Sundays or on polling days, nor are sales allowed to be made to particular persons. Nobody disputes that such legislation by the provinces is perfectly valid, and yet, if you can prohibit selling on Sunday, why not on Monday? And if on a polling day, why not on some other day? Whether it be wholesale or retail, there is nothing to show that that power was intended to be taken away, and that it comes in, reasonably and properly, under the term "municipal institutions,"
As the points have been so fully gone over by my learned friend I do not think I need further occupy your Lordships' time.
Cannon Q. C.—Although the question in this case is a most important one to the province of Quebec, on account of the position taken by the Dominion Government in the factum filed in this court, and also the position taken by the learned Solicitor General of Canada in his argument, the remarks which I have to offer to this court on behalf of the province of Quebec will be very brief. The Dominion of Canada, and the Solicitor General, have admitted all the rights which the province of Quebec claim on this question; they have even admitted a little more, on one point, than the province of Quebec claims.
In the light of the different decisions rendered on these questions of prohibitory liquor laws, and of the different cases cited, the province of Quebec has interpreted the question now before the court in the following manner, or has assumed that it had, on this question of prohibitory liquor laws, the following power:—
First of all, the province of Quebec claims the right of licensing the wholesale and retail sale of liquor; and it does now, practically, under the laws in force in the province.
Secondly, the province claims the right of limiting the number of liquor licenses throughout the province, and does so through the medium of municipal councils. It does so throughout the province under the authority of the Municipal Code, and in the larger cities and towns through the medium of license commissioners, at least for Quebec and Montreal. Thirdly, the province claims the absolute right of prohibiting the retail sale of liquor.
Throughout the province of Quebec we claim the right to absolutely prohibit the retail sale of intoxicating liquors, and, practically, we have been doing so since confederation.
Then comes the question of the definition of wholesale and retail. Because of the arguments which have been presented to this court by the different learned counsel who have preceded me I think I should say a few words on behalf of the province of Quebec.
We have, to a certain extent, in the province of Quebec, defined retail sale. Our definition may be wrong but, of course, we will hold to it, until we are corrected by this court, or perhaps later on by the Privy Council. The definition of retail sale is found in the laws of the province of Quebec, article 561 of the Municipal Code. Under that article power is given to all municipal councils, by means of a by-law, to prohibit the sale of intoxicating liquors within its limits under a quantity of two imperial gallons, or twelve bottles of three half pints. That is the definition which the province of Quebec gives to wholesale and retail liquor selling; two gallons is wholesale and under that quantity is retail according to this provision of our Municipal Code.
In numerous instances municipalities have prohibited the retail sale of intoxicating liquors. And the law provides that when such a by-law has been passed a copy of it is forwarded to the collector of the provincial revenue of the district in which the municipality exists, and from the date of the receipt of this by-law, until its repeal, the collector of the provincial revenue is debarred from issuing licenses for the sale by retail of intoxicating liquors in that municipality. The only thing which the province claims in respect of sale by wholesale is to make the vendor take out a license for the purposes of revenue and that is what we have done for years past, under our license law which is now embodied in our Revised Statutes. Every wholesale vendor of intoxicating liquors is bound to take out a license; and now, the only preliminary for the taking out of that license is the payment of the fee fixed by the Quebec license law.
I would further add, that the government of the province of Quebec is of opinion that total prohibition is the cessation of trade and commerce in a certain article, intoxicating liquors for instance, and that the cessation of trade and commerce in that certain article must necessarily be regulating trade and commerce, and that, consequently, total prohibition by a provincial legislature is ultra vires. I cover by those words the prohibition of manufacture and importation.
The learned counsel for the province of Ontario claim that there is no difference between wholesale and retail as to licenses under municipal institutions. The government of the province of Quebec, in the past legislation which has been adopted, and which is still in force, has not adopted that view of the question. It being a matter of the regulation of trade and commerce the provincial legislature thinks it has no right to totally prohibit the manufacture or importation of intoxicating liquors. We do not claim that right before this court now, nor do we claim the right of prohibiting the wholesale sale of spirituous liquors, thinking that that also would be regulating trade and commerce, which is not within the purview of the powers of the local legislature.
We consider that the retail prohibition of the sale of spirituous liquors is rather in the nature of a municipal regulation, within the powers of the local legislature. As I before stated, the power of prohibiting the retail sale of spirituous liquors we have claimed in the past, and have enacted legislative provisions to enforce such retail prohibition in whatever municipalities wish to do so. We still claim that we have the power to do so in the future.
Wallace Nesbitt for the Brewers and Distillers Association:—
As I understand the principle of construction that has been adopted, both by your Lordships' court and by the Privy Council it is, first to inquire whether the particular matter falls within the exclusive jurisdiction of the province because, if your Lordships find that it does not fall within any of the specially enumerated clauses of section 92, then, so far as these questions are concerned, the court is done with it. For that canon of construction I refer to Russell v. The Queen[38].
Then the next canon of construction to which I ask your Lordships' attention is this: If it fall within any of the classes enumerated in sec. 92, then the further question would arise, viz., whether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and so does not still belong to the Dominion Parliament.
A further canon of construction has been laid down in Atty. Gen. of Ontario v. Atty. Gen. of Canada[39], and in Tennant v. Union Bank[40]. If it falls within section 91 and you find it legislated upon, then this follows:—That although it may be within section 92, if it has already been legislated upon by the Parliament of the Dominion, under section 91, then the local legislation is of no effect.
Now, I take the canons of construction, as laid down in the Privy Council up to date, to be these: First, you are to look at the character of the legislation and see if it comes within section 92. If it comes within section 92 you may legislate, subject to this, that if it is inconsistent in the slightest degree with ancillary legislation under section 91, then the legislation of the local must go. Lastly, until it conflicts, either with ancillary legislation, or direct legislation, it may be good under a certain aspect of section 92. If I am correct in that the following result is patent:—If this is really prohibitive legislation that you are asked to pass upon, and it does not fall within any one of the sections of 92, then my task is done; but, supposing your Lordships do not follow me to that extent, if I am able to demonstrate that it conflicts with legislation as to which the Dominion Parliament has a power to legislate, even ancillary legislation, if I may so describe it, and that the Dominion has already taken up the field, then again my task is accomplished, and all these questions must be answered in the negative.
My first proposition therefore, is, that this does not come within section 92 in any particular, under any one of the heads, that it is in fact prohibitive legislation that your Lordships are asked to say the provinces are entitled to pass. If I am right in that, and it does not come under section 92, as I say, I am through; but, I go a step further, and say, even if it could be said to be under sec. 92 it conflicts directly with a piece of legislation which has already been declared to be valid by the Privy Council, which is in force, viz., the Scott Act, and the two cannot consistently stand together.
Now, Russell v. The Queen[41] decides that prohibition belongs to the Dominion, Hodge v. The Queen[42] that licensing belongs to the province, and the McCarthy Act case that neither one conflicts with the other, but that the McCarthy Act was simply a piece of legislation of the type and character, if I may so describe it, of a licensing Act, and was therefore ultra vires, because it conflicted with the exclusive power which was granted to the legislatures.
Then, if the provinces claim also a field of legislation as to that, we say it has already been taken up with the Scott Act.
Now, if the Privy Council has decided anything it has decided this, that there can be no line of demarcation drawn between wholesale and retail. Therefore what you are asked to decide here is: Can they pass a prohibitive law? Your Lordships are not asked to say whether they can pass a retail prohibitive law. That is not the question submitted. Dealing with question 1, it is a prohibitive law, as such, irrespective of quantity, and as such, we ask your Lordships' answer.
Then that brings me to the particular argument as to whether this in fact does come within any of the clauses of section 92.
Mr. Justice Burton, in the Local Option Case, said that the sub-head of "municipal institutions" had never been drawn to their Lordships' attention. All I can say in answer to that is, that in the McCarthy Act case their Lordships of the Privy Council say that they think the subject of "municipal institutions" has nothing whatever to do with the subject of prohibition.
For the purpose of this argument there can be no distinction between wholesale and retail. The provinces have not the power to prohibit retail traffic, and cannot create the power by saying it is part of "municipal institutions," because it only relates to a bottle. It must, in the same way, relate to fifty gallons or fifty barrels, if it is part of municipal power. I submit, therefore, that the effect of the British North America Act upon that is simply this, that under the head of "municipal institutions," subsection 8 embraces everything which inherently belongs to municipal institutions, not inconsistent with the power assigned to the Federal Parliament under section 91.
Then when you find the Privy Council, in express words, saying in Russell v. The Queen[43] that this prohibition legislation does not fall within section 92, when you find their attention drawn expressly to subsection 8 in Hodge v. The Queen[44], and they again affirm Russell v. The Queen (1), and still again in the McCarthy Act Case, surely it cannot be said that in their Lordships' opinion, under "municipal institutions," anything in relation to prohibition of the liquor traffic could be said to come. Then, if it does not come under that head, I do not understand it is pretended it can come under any other head of section 92, and that of course would relieve me from following the discussion any further, as to the right of the local to pass a prohibitive law.
If a province can pass prohibition it can, in effect put a tax upon other provinces, because it destroys the ability to raise a revenue by the Dominion, and therefore it becomes interprovincial, as a matter of trade and commerce. Take, for instance, the illustration given by one of your Lordships this morning, supposing all the distilleries and breweries in this province were to be closed by prohibition, absolutely closed, they could neither manufacture nor sell, because it is that broad class of legislation that you are asked to deal with, if such a course were adopted the result would be, that the taxes or revenue would have to be raised in some other way, and the other provinces would, either directly or indirectly, have to contribute to the general deficit that would occur. We can also invoke what is called the historical argument on the subject of the liquor traffic, and I submit that you find in that very section 92 the liquor case expressly dealt with by subsection 9. Therefore, it is only fair to assume that all that was delegated to the local legislatures was that which was expressly delegated by the very words, viz., the regulation of the traffic, by the licensing of shops, saloons, taverns and so on. Is that not a fair argument? If you find they give express power on the subject of liquor, is it fair to ask under some other term, as to which it cannot be said to be inherently connected, an implied power to be given beyond the express power of section 9?
I would refer to the cases of Bennett v. Pharmaceutical Society[45]; The Queen v. Justices of King's[46]; Re Barclay and The Township of Darlington[47]; Re Brodie and Bowmanville[48]; Ex parte Gooey[49].
[The learned counsel then argued that the right was with the Dominion as a "regulation of trade and commerce."]
Saunders follows on the same side:—I propose to deal in the brief argument which I shall address to your Lordships, solely with question no. 7, which has been before this court in the case of Huson v. The Township of South Norwich.
Question no. 7 purports on the face of it to deal with only retail trade, but, according to all the authorities that have been cited, there is no distinction between wholesale and retail as to this question. This must be so for it would be impossible to define what is wholesale and retail. There is no harmony on the matter in the legislation of the different provinces or even in different legislative acts of the same province. Therefore, although this question deals with retail, it is illusory, because in dealing with retail it deals with the whole question; and, however question seven is answered, question one must be answered in the same way. That I apprehend would be a sufficient answer perhaps to this point, but I am prepared to go further, and to submit that even if you were prepared to concede absolute prohibition to the province, and the right to control it, still I should be entitled to ask your Lordships to hold that the legislation referred to in question no. 7 was ultra vires, because it comes into conflict with the most important provision of the Canada Temperance Act.
[The learned counsel then dealt at some length with the Local Option Act pointing out that it was not in any way ancillary to the Canada Temperance Act but an independent piece of legislation, and the two could not stand together.]
My learned friend Mr. Maclaren, suggests that your Lordships can treat it as a License Act. That, of course, would be perfectly impossible. You cannot alter the character of it by tacking it on to a License Act. The character of this prohibition clause is prohibition. The question was gone over very fully in the McCarthy Act Case, and the Privy Council would not hear of it for a moment.
My learned friend Mr. Nesbitt has already referred to the Quebec cases, and I think it is shown that they do not constitute any sort of guide, because, according to the argument of my learned friend Mr. Cannon, they did what was clearly irregular. While the Dunkin Act was in existence they dealt with prohibition under statutes of their own. The Attorney General of Ontario, no mean authority upon constitutional law, did not do that. In 1874, so soon as he assumed the office of Attorney General, he had that altered. He has recognized all along the existence of the doubt, which within twelve months he has he has given expression to, as to whether the province of Ontario or any province has the right to pass any prohibition law whatever.
I wish for a moment to refer to the judgment of Mr. Justice Burton, who is perhaps, with the exception of the late lamented member of this court, Mr. Justice Henry, the strongest provinciality we have had upon the bench, and he also concurs in upholding this judgment, and, in the course of it, in order that he might not be misunderstood, he makes use of words, as he says, much against his will, to the effect that it would be utterly impossible to hold that prohibition is in the province.
I have only a few other observations to make in connection with the points that I have already suggested as to the conflict that arises, and it incidentally established another point which is important in this way:—During the course of this argument we have heard a great deal about the pre-confederation argument as to "municipal institutions." It is said that the powers that they exercised before confederation are powers they are still to continue to exercise, unless they are specially transferred to the Dominion Parliament. If there is a conflict, as I say there is, as to cities it follows of course that that contention is unsound. So soon as you begin to apply it, what follows? Why, a conflict of the clearest and most unequivocal kind. If that is not an answer to the pre-confederation argument it seems impossible that any answer can be made. The conflict is clear and distinct. If it produces a conflict it is unsound in principle; if unsound in principle, it cannot be supported.
Just one word with regard to the position taken by the learned Solicitor General. I submit, my Lord, that his position here is untenable. He has either gone too far or not far enough. The concessions he makes here, and I consider that they are concessions, and nothing but concessions, should not affect this question. The question is, not what he is willing to concede to the provinces, but: What is the strict construction of the British North America Act? And that is particularly necessary in view of the fact that this question is very likely to be carried to the Privy Council. We ask for a strict construction of the British North America Act, because if they are merely concessions made these concessions could of course be withdrawn. Independent of these concessions we ask for a strict construction of the British North America Act. We think it is of the greatest importance not only respecting our client, but in the public interest. The concessions which the learned Solicitor General has thought fit to make, if they are concessions, should have nothing whatever to do with the matter.
The Solicitor-General—I desire to say one word as to the very important statements made by my learned friend Mr. Nesbitt regarding the action or intention of the legislature of the province of Quebec, concerning the Dunkin Act, in which he has been entirely misled by the interpretation which he has given to the judgments referred to, amongst others the judgment in the case of Ex parte Cooey[50]. The opposite is exactly the fact, and it is most important to note it.
The court in that case held that the provisions of the Temperance Act of 1864 had not been repealed or amended by the Municipal Act, or the subsequent legislation so as to prevent enactment of a by-law thereunder for the sale of intoxicating liquors, or to prevent prohibition, but pointed out that the legislature had shown its authority by interfering most directly and legislating most clearly upon very many of the most important sections of the Dunkin Act. There is another holding, that the regulation of the traffic in intoxicating liquors is within the jurisdiction of the Parliament of Canada. My learned friend in his main argument the other day went on to quote from the Canada Temperance Act to show that the Dominion Parliament had undertaken by that to say that sections 1 to 10, both inclusive, of the Temperance Act of 1864, were repealed as to every municipality, and so forth, and he argued that no exception having been taken it was a concession, on the part of all concerned, that the Dominion Parliament had the right.
But in 1870, two or three years after confederation, the province of Quebec had already enacted exactly the same thing, that is to say, by subsection 12 of section 197 of the License Act of the province of Quebec, it was decreed that the act 27 & 28 Vic. ch. 8, should be repealed. If your Lordships will refer to the Revised Statutes of the province of Quebec, you will find that statement made. I refer to vol.'2, appendix A, 27 & 28 Vic. sections 1, 10, 37, 38, 50, 51 and 53. These are all important sections of the Canada Temperance Act (the first Canada Temperance Act), which was the Act of 1864, known as the Dunkin Act, which were not only interfered with, but have actually been repealed, by the legislature of the province of Quebec, and it is the universal holding that our provincial authorities have all the powers that were granted under that Act, and they may either repeal them or leave them in force, or re-enact them if they have been repealed. I have just made that little digression, because I wished to correct what I thought was a false impression at the time made by my learned friend, no doubt, simply by taking the instructions from the statutes that he had quoted instead of referring directly to the repealing section of the statutes themselves. The province of Quebec is with the position assumed by the Dominion of Canada upon all points except one, that is to say, who shall have the right to determine what is wholesale and what is retail. My learned friends from Ontario, of course, differ from us on the point I have just mentioned. The question of wholesale and retail is one that has occupied the attention of the legislatures from the time the first Act was passed. From the very first Act that was passed until the last, which resumed pretty much all the former legislation, they all contained provisions defining the difference between wholesale and retail.
To sum up, I contend, first of all, that the Dominion has power to pass a general law for the peace, order, and good government of the Dominion, such as the Canada Temperance Act. That has been decided. The licensing power has been determined as being in the hands of the provinces. But the question of prohibition, either partial or total, has never come up yet; and the important point, I think, to be determined is that one point, as to where the power lies to fix the difference between wholesale and retail.
The Dunkin Act has been referred to here, and its bearing upon this question is extremely forcible. We can look at it to see what were the extraordinary powers exercised at that time by the municipalities of the province of Canada.
If the legislature of the province which had absolute power to pass a prohibitory by-law, in so far as the retail trade is concerned, were to pass legislation of that kind, and the Dominion Parliament, under its general power which has been granted to it for the peace, order and good government of this community, were to pass a general law, would that kill the local act? Supposing that a legislature had passed an Act within its power for prohibition, would that, as my learned friends here contend, render that law of the legislature a nullity? Not at all. It might cause it to be dormant. The superior power, having passed a law which necessarily would come into effect for the peace, order and good government of the country, according to the judgment rendered in Russell v. The Queen[51], that law would extend its influence, and its effect, over the whole Dominion. But supposing that two or three provinces of the Dominion, by concentrating the votes of their representatives in Parliament, were to secure the repeal of the whole of that legislation, would the province where the former legislation had passed be deprived of the expression of the will of the people, having perhaps, in the Dominion Parliament, through its representatives voted against a repeal of the law? Would not that law which already was on the statute-book, which remained dormant, just as the by-law I have referred to in the Dunkin Act, not revive again, in so far as the local matters of that province were concerned? I contend that it would, and that no logical reason can be advanced to the contrary.
Dealing now for one moment again with the question of concurrent jurisdiction, which my learned friends here scout, I think that looking not only at the British North America Act, but at the judgments that have been rendered, that over and over again it has been held, as it must be, that there are special powers confided to each, and concurrent powers, and that sometimes the exercise of one power must over-ride the other. I will just refer your lordship to a case of Cote v. Paradis, in the Court of Queen's Bench (Quebec)[52], in 1881, and what was there held.
Then what has happened in our own country? When the insolvency legislation which began under the Abbott Act was all swept away, some time about 1878, I think, the provincial legislation revived, and has been in force ever since, and has been changed and modified from time to time by the province of Quebec and other provinces.
In conclusion, I will remark that the learned counsel for the brewers and distillers, whom I have listened to with a good deal of attention, and who have certainly put a great deal of learning into their arguments, have put this difficulty before the court:—They say, look at the effect upon the revenue; look at the provisions which were made by the British North America Act, and the obligations that were entered into upon one side and the other. Are they to be upset by prohibitory legislation, such as it is said the provinces have a right to pass? It would prohibit the right of the Dominion to levy money, and where are the funds to come from to meet these obligations they have contracted towards the provinces? All that, no doubt, presents a difficulty, but it is not one that can influence this court for one moment, because, if the Dominion were to exercise the power which these learned gentlemen say it undoubtedly has, of passing the general prohibitory law, which we all admit it has, to strike out the manufacture, the importation, and sale generally of intoxicating liquors, that would interfere with the right of the provinces to levy, by way of license, and so forth, direct taxation. But that would have simply to go by the board. New arrangements would have to be made by the legislatures and parliament. They would have to face a new state of affairs. That, I contend, is no argument at all, and cannot affect for one moment the principle that is at stake in this discussion. And if the legislature cripples to some extent the Dominion, the Dominion on the other hand, by exercising its still larger power, may destroy, to a very great extent, and perhaps entirely, the principal source of revenue of the province. That being the case, the people of Canada, through their representatives having exercised their indubitable right, those who are charged with the administration of public affairs as statesmen will have to face the new difficulty, and solve it, as they have other things in the past.
THE CHIEF JUSTICE—My reasons for the foregoing answers will appear from my judgment in Huson v. South Norwich[53]. I have only to add that I do not think any statutory definition of the terms "wholesale" and "retail" is requisite, but if legislation is required for such purpose it is vested in the Dominion as appertaining to the regulation of trade and commerce.
I answer the third and fourth questions in the negative, because the prohibition of manufacture and importation would affect trade and commerce, and so must belong to the Dominion; and further, for the reason that prohibition to that extent would affect the revenue of the Dominion derived from the customs and excise duties
FOURNIER J.—I concur in the conclusions arrived at by the Chief Justice of this court, and adopt his answers to the seven questions submitted.
GWYNNE J.—[After stating the questions submitted His Lordship proceeded as follows:]
In construing the language of the British North America Act of 1867 defining the jurisdiction of the Dominion Parliament and of the provincial legislatures we must never lose sight of the fact that this language is that of the resolutions adopted in 1861 by the provincial statesmen assembled in Quebec by the authority of Her Most Gracious Majesty for the purpose of framing the provisions of a constitution for federally uniting the British North American provinces into one government under the British Crown and that the British North America Act was passed merely for the purpose of giving legislative form to the terms and provisions of a treaty of union between the respective provinces forming the confederation and the Imperial Government, as such terms and provisions are expressed in the resolutions adopted by the framers of the constitution and by the respective legislatures of the provinces of Canada, Nova Scotia and New Brunswick, and by the Imperial Government. So likewise must we keep ever present to our minds the fact that the main object of these provincial statesmen, who were the authors and founders of our new constitution, in framing their project of confederation, was to devise a scheme by which the best features of the constitution of the United States of America, rejecting the bad should be grafted upon the British constitution; and to vest in the provincial legislatures exclusive jurisdiction over all matters of a purely provincial, local, municipal and domestic character, and in the general or central legislature exclusive jurisdiction over all matters in which, as being of a general, quasi-national and sovereign character, the inhabitants of the several provinces might be said to have a common interest distinct from the particular interest they would have in matters affecting the local, municipal and domestic affairs of the particular province in which each should reside.
That this was the main design of the scheme of confederation proposed by the framers of our constitution, and as intended by the resolutions adopted by them, is abundantly apparent from the speeches accompanying the submission of the resolutions to the legislatures of the provinces for their adoption. The late Sir John Macdonald, the chief of the provincial statesmen engaged in framing the resolutions, when presenting them to the legislature of the province of Canada for their adoption, says:
We must consider the scheme in the light of a treaty; the whole scheme of confederation, as propounded by the conference, as agreed to and sanctioned by the Canadian government, and as now presented for the consideration of the people and the legislature, bears upon its face the marks of compromise.
And again:
In the proposed constitution all matters of general interest are to be dealt with by the general legislature, while the local legislatures will deal with matters of local interest.
Again, referring to the constitution of the United Sites of America, he says:
We can now take advantage of the experience of the last seventy-eight years during which the constitution of the United States has existed, and I am strongly of opinion that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada the defects which time and events have shewn to exist in the American constitution.
And again:
We have strengthened the general government, we have given the general legislature all the great subjects of legislation, we have conferred on them not only specifically and in detail all the powers which are incident to sovereignty but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local government and local legislatures shall be conferred upon the general government and legislature.
And again:
I shall not detain the House by entering into a consideration at any length of the different powers conferred upon the general Parliament as contra-distinguished from those reserved to the local legislatures, but any honorable member in examining the list of different subjects which are to be assigned to the general and local legislatures respectively will see that all the great questions which affect the general interests of the confederacy as a whole are confided to the Federal Parliament while the local interests and local laws of each section are entrusted to the care of the local legislatures. The late Mr. George Brown, then president of the executive council of the province of Canada, and also one of the delegates who framed the constitution, said:
All matters of trade and commerce, banking and currency and all questions common to the whole people we have vested fully and unrestrictedly in the general government.
And again:
The crown authorized us specially to make this compact and has heartily approved of what we did.
And he ascribed the terms of the scheme of confederation as embodied in the resolutions to Lord Durham's report wherein he suggested a union of the provinces
upon a plan of local government by elective bodies subordinate to the general legislature and exercising complete control over such local matters as do not come within the province of general legislation, and that a general executive upon an improved principle should be established, together with a supreme court of appeal for all the North American colonies.
And again he said that:
No higher eulogy could be pronounced upon the scheme produced than that which he had heard from one of the foremost of British statesmen, namely, that the system of government which we propose seemed to him a happy compound of the best features of the British and American constitutions.
Sir Geo. Etienne Cartier, then Attorney General of Canada East and another of the framers of the constitution for the proposed confederacy, said as to the proposed scheme in advocacy of its adoption by the Canadian legislature:
Questions of commerce, of international communication and all matters of general interest would be discussed and determined in the general legislature.
And again he said that in all their proceedings the framers of the constitution had the approbation of the Imperial Government, and in fine he said:
I have already declared in my own name and on behalf of the Government that all the delegates who go to England will accept from. the Imperial Government no act but one based upon the resolutions if adopted by the House and will not bring back any other.
The resolutions having been adopted by the legislatures of Canada, Nova Scotia and New Brunswick were transmitted to the Imperial Government and at the request of that Government a conference was held upon them in England between delegates from those provinces and the Imperial Government at which conference the resolutions were adopted almost verbatim, with a slight modification as to the power of the executive government of the confederacy introduced at the suggestion of the Imperial Government for the purpose of still further strengthening the central executive of the proposed confederacy, such modification consisting in expunging the 44th resolution which proposed to vest in the provincial executive the power of pardon of criminal offences, as to which resolution Sir John Macdonald had said, when submitting the resolutions to the Canadian legislature, that this was a subject of imperial interest and that if the Imperial Government should not be convinced by the argument they would be able to press upon them for the continuance of the clause (the 44th resolution) they could, of course, as the overruling power, set it aside;—accordingly at the conference in England it was, with the assent of the provincial delegates, set aside and expunged, and that power of pardon was vested in the central or general government and in other respects the language of the resolutions was not only substantially but almost verbatim et literatim embodied in a bill agreed upon by the provincial delegates and the Imperial Government as the bill to be presented to parliament to be passed into an Act.
In Her Majesty's address to both houses upon the opening of parliament in February, 1867, she was pleased to refer to the proposed scheme of confederation in the following manner:—
Resolutions in favour of a more intimate union of the provinces of Canada, Nova Scotia and New Brunswick have been passed in their several legislatures and delegates duly authorised and representing all classes of colonial parties and opinion have concurred in the conditions upon which such a union may be best effected. In accordance with their wishes a bill will be submitted to you which by the consolidation of colonial interests and resources will give strength to the several provinces as members of the same empire, and animated by feelings of loyalty to the same sovereign.
Lord Carnarvon, then colonial minister, in presenting this bill to Parliament, explained its intent and purpose, saying, among other things, with reference to the said resolutions, that they, with some slight changes, formed the basis of the measure he was submitting to Parliament; that to those resolutions all the British provinces in North America were consenting parties, and that the measure founded upon them must be accepted as a treaty of union. Then, referring to the distribution of powers, he said:
I now pass to that which is perhaps the most delicate and most important part of this measure, the distribution of powers between the central government and the local authorities; in this I think is comprised the main theory and constitution of federal government; on this depends the principal working of the new system.
And again:
The real object which we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces, and at the same time to retain for each province such an ample measure of municipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community.
And again:
In this bill the division of powers has been mainly effected by a distinct classification; that classification is four-fold: 1st. Those subjects of legislation which are attributed to the central parliament exclusively; 2nd. Those which belong to the provincial legislatures exclusively; 3rd. Those which are the subject of concurrent legislation; and 4th. A particular subject which is dealt with exceptionally.
Then, as to the subjects of concurrent jurisdiction, he says:
There is as I have said a concurrent power of legislation to be exercised by the central and the local parliaments. It extends over three separate subjects—immigration, agriculture and public works.
Then in reply to a question asked by a noble lord,
whether by the terms of arrangement that had been come to, Parliament was precluded from making any alteration in the terms of the bill?
He said that:
It was of course within the competence of parliament to alter the provisions of the bill, but he should be glad for the House to understand that the bill partook somewhat of the nature of a treaty of union, every single clause of which had been debated over and over again and had been submitted to the closest scrutiny, and in fact as each of them represented a compromise between the different interests involved, nothing could be more fatal to the bill than that any of those clauses which were the subject of compromise should be subject to such alteration; that of course there might be alterations which were not material and which did not go to the essence of the measure and he would be quite ready to consider any amendments that might be proposed in Committee, but that it would be his duty to resist the alteration of anything which was in the nature of a compromise, and which if carried would be fatal to the measure.
Accordingly the bill was passed as introduced, without any alteration whatever, as the British North America Act of 1867.
From the above extracts it is apparent that that Act is but the reduction into legislative form of a treaty, after the fullest deliberation previously agreed upon between the provincial statesmen who where the originators and framers of the scheme of confederation contained therein and Her Majesty's Imperial Government, and such being the history of the origin of the scheme and of the treaty of union and of its embodiment in an Act of Parliament, when a question should arise which should create any doubt as to whether a particular subject of legislation comes within any of the items enumerated in section 92, and so under the exclusive jurisdiction of the provincial legislatures, or within section 91 and so under the exclusive jurisdiction of the Dominion Parliament, the doubt must be solved by endeavouring to ascertain the intention of the framers of the scheme and the parties to such treaty. From the above extracts it is also apparent that the essential feature of the scheme of confederation was that the legislative jurisdiction conferred upon the central and provincial legislatures respectively should be exclusive upon all subjects placed under the jurisdiction of each, save only the three subjects which were made the subjects of concurrent jurisdiction; and that such exclusive jurisdiction conferred upon the central legislature, that is to say, the Dominion Parliament, extended over all matters of a quasi national and sovereign character and over all matters of common import and general interest, which affect the general interests of the confederacy as a whole, that is to say, over all matters in which the people of the confederacy as a whole may be said to have a common interest; and that the exclusive jurisdiction of the provincial legislatures was restricted to matters of a merely private, provincial, municipal and domestic character, all of which matters are comprehended in the subjects enumerated in the several items in section 92 of the Act, which under the heading "Exclusive Powers of Provincial Legislatures" declares that:
In each Province the Legislature may exclusively make laws in relation to the matters coming within the classes of subjects hereinafter enumerated. Then follow sixteen items, every one of which can with the utmost propriety be said to relate to subjects of a purely local, private, provincial, municipal and domestic character. But by section 91, it is declared that:
It shall be lawful for the Queen by and with the advice and consent of the Senate and House of Commons to make laws for the peace, 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 for greater certainty but not so as to restrict the generality of the foregoing terms it is hereby declared that, notwithstanding anything in this act, the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say.
Then follow twenty-nine items, the second of which is:
The regulation of trade and commerce.
The section then closes with this provision:
And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.
It has been sometimes, and still is by some, suggested that this provision refers grammatically only to item 16 of sec. 92; but this is a too critical construction of the Act, for what the enactment plainly says is that any matter coming within any of the classes of subjects enumerated in sec. 92 shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act exclusively assigned to the legislatures of the provinces, thus, as I submit—and if I may be permitted the expression—explicitly implying that, as the fact in truth appears to me to be, all the matters exclusively assigned to the provincial legislatures by the enumeration contained in section 92 were (within the intent of the framers of the scheme of confederation and so within the meaning of the British North America Act, 1867) of a purely local and private nature, that is to say, of a purely provincial, municipal and domestic character—as distinguished from matters of common import and general interest to the people of the confederacy as a whole. The true effect of this provision in section 91 is plainly, as it appears to me, to give expressly to the Dominion Parliament, for the purpose of exclusive legislation upon all matters coming within the several subjects enumerated in section 91, legislative power, if required, over all of the subjects enumerated in the 16 items of section 92, every one of which relates to matters of a purely provincial, municipal, private or domestic character, that is to say, "of a local and private nature," so that legislation by the Parliament upon any of the subjects comprehended within any of the items enumerated in section 91 may be complete and effectual notwithstanding that for such purpose interference with some or one of the subjects comprehended in the enumeration of subjects in section 92 should be necessary, and such interference by the Dominion Parliament with any of the subjects enumerated in section 92 shall not be deemed to be an encroachment upon or interference with the legislative powers conferred upon the provincial legislatures.
Now according to the canons of construction as laid down by this court in Fredericton v. The Queen[54] and by the Judicial Committee of the Privy