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THE PRODLEX OF LIQUOR LEGISLATION IN CANADA. The division of the field of legislation between the Provinces and the Dominion as made in sections 91 and 92 of the British North America Act is probably in no instance more disputed than in the consideration of liquor legislation. The opinions of the judicial Committee of the Privy Council indicate that it is competent for both the Provinces and the Dominion to pass legislation on this matter. As usual no clear dividing line can be worked out from these opinions. Accordingly both legislatures trespass at times upon each other's field, and will continue to do so. The case which receives the most criticism is the now notorious Russell v. The Queen.' In this case the of 1878 was held intra vires, even though it might interfere with subjects of Provincial legislation, i.e., property and civil rights within the province, or generally all matters of a purely local and provincial concern . The ground of acceptance of this case A as enunciated last year by Lord Haldane in the Toronto Electric Com- missioners case. It is that in an emergency such as is alleged to have existed in 1878 Dominion legislation dealing with such emerg- ency shall prevail over any conflicting provincial legislation. The 1878 emergency caused by a crime wave as a result of nationwid,2 intemperance is supposed to have constituted a national peril . This reason has been much criticised of late, but it is the view adopted by one of the judges of the ,3 when that court passed on the validity of the Act and is also contained in the preamble to the Act itself. Looking back from the present time, that emergency may seem difficult to appreciate. On the other hand one should be careful not to review questions of fact years after the event with little or no evidence at hand. The court which gave the opinion in Russell v. The Queei0 indi- cated that the power of the Dominion to legislate might come under either the opening clause of section 91 (as an emergency), or perhaps under Trade and Commerce, which is number 2 of section 91 . This latter ground was rejected in a case dealing ,Aith the same subject matter in the year 1896.r' " Their Lordships think there is a marked distinction to be drawn between the or preservation of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that

Sept., 1926] - Liquor Legislation in Canada. 46 9

which is to be regulated or governed.-6 The Act of 1878 actually trenches very slightly upon the field belonging to the provinces since its practical application depends upon in each munici- pality. The 1896 case? decided that the provinces also might pass laws dealing with the regulation and prohibition of the sale of liquors so far as not to conflict with Dominion legislation on this matter, and put this power under either number 13 or number 16 of section 92. _ In deciding these two questions,(i .e,, the Dominion power under the opening clause or the Provincial under 13 or 16 of 92) their Lord- ships ansv ered seven questions which were put to them by the Governor in Council under the Supreme Court Act. These ques- tions and the answers to them provided for the subject of liquor legislation a sort of minor sections 91 and 92 with much of the ,.omplexity and obscurity of the originals maintained . These ques- tions and answers should be read." , This case was followed in the opinion delivered in the License Holders' Case in 1902 when the power of the provinces was definitely put under number 16 of section 92.9 Thus each legislature derives its power under the residuary clauses. Subsequent cases have in the working out in detail of the principles outlined by the Privy Council in 1896. The Canadian Courts appear to have had little difficulty in giving consistent deci sions. On the other hand the provisions of several of the Provincial Temperance Acts indicate a state of confusion and uncertainty on the part of the law officers of the provinces. The history of Temperance Legislation in Canada, during the last fifteen or twenty years, is so very involved and there have been so many metamorphoses of the various provinces, that it seems wiser to confine the examination to those Acts now on the statute booksi° The most interesting problem in . the provinces which still have prohibitory legislation, is the importation by private individuals of a ines and liquors for private consumption. Some of the provinces merely render this importation difficult by prohibiting the advertising of wines or liquors within the province, or the solicitiing or taking of orders, within the . province, for the importation of, these articles. Others leave importation to individual enterprise or Dominion Legis-' lation. On the other hand still others attempt to make importation subject to provincial, prohibition,, although in a father indirect, manner. All the provinces make necessary exemption for doctors',`

470 The Canadian Bar Review. [No. Vil

priests, and others who use wines, etc., for medical, sacramental and manufacturing purposes. Under the more recent Acts which provide for government con- trol or the sale from government stores, the restrictions on importation by individuals are not relaxed, but are made even heavier than before. This attempt to swell the profits of the government monopoly causes those provisions to lack any moral or popular psychological backing, which the ordinary Temperance Acts possess. The detailed provisions of the various Acts which are of interest to the constitutional lawyer will nou be considered. Section 4 of the Temperance Act provides that " This Act shall not affect any bona fide transaction in respect of liquor between a person in the province and a person in another province or in a foreign country." The Act and the Manitoba Act originally had similar provisions.)°"1 " While this Act is intended to prohibit and shall prohibit transactions in liquor which take place wholly within the Province of Ontario, except under license or as otherwise specially provided by this Act, and to restrict the consumption of liquor within the limits of the Province of Ontario, it shall not affect and is not intended to affect bona fide transactions in liquor between a person in the Province of Ontario and a person in another Province or in a foreign country, and the provisions of this Act shall be construed accordingly." These sections recognize the principle of Private International Law which under our constitution has to be applied to inter-provincial transactions, i.e., no one provincial jurisdiction can or should determine that its laNN s shall prevail in such a trans- action?= Moreover Dominion legislations and decisions of the Can- adian Courts recognize that the regulation or prohibition of inter- provincial trade is a matter for the Dominion exclusively . These provisions have been practically repealed and a different rule sub- stituted for them, by an Ontario Act of 1920 which is c. 80 and deals with the Transportation of Liquor in Ontario. The practical result when considered with reference to all the Ontario legislation on this matter is an attempt by the Province to prohibit importation into Ontario. The problems of import into and export from a province can be taken up together, because the principles involved are the same. It has always been accepted that one of the probable functions assigned the Dominion under Trade and Commerce, is the power to pass regu- lations for the interprovincial trade and for trade between the various parts of Canada and foreign countries . A Dominion Act restricting

Sept., 1926] Liquor Legislation in Canada. 47 1

the importation .3 of liquor into the provinces, which has been adopted by- option by Alberta, as provided therein, has been considered by the Supreme Court of Canada and declared to be intra vires the Dominion. The decision followed the 1896 case, and the views therein that " regulation does not mean prohibition " caused the court some difficulty.. The judges vacillated between a broad interpretation of that opinion and placing the subject under the general powers of the opening clause of section 911-1 There have been several cases dealing with the attempts of the provinces to prohibit or restrict exportation, in which the provincial legislation has been quite properly declared unconstitutional .15 It would seem that the proper legislature, if any, for the regulation of these matters is the Dominion, and the decision of the Supreme Court of Canada ought to be upheld. Most Provincial law officers are of this opinion if one may judge by- the tender phraseology with which they seek to avoid real conflicts with Dominion legislation; The Ontario Liquor Transportation Act" stands out against the powers of the Dominion. No reported case can be found but the Act seems clearly unconstitutional . . On the surface this Act appears to be quite within the legislative competency of Ontario, since it merely prohibits transporting or carrying liquor within the province for use or consumption in Ontario. This prohibition does, not men- tion import at all17 Its practical effect is to make importation a crime, if the liquor is for any purpose not sanctioned by the . It is impossible to interpret this Transportation Act as being aimed at anything except unauthorised importations, because section 6 exempts liquor in transit through Ontario, export from Ontario, sale, carriage, transportation or delivery under the order of the board and the transportation of liquor as authorised' by section 43 of the Ontario Temperance, Act and section 30 of the Ontario Temperance Amendment Act 1918. The Act itself is to be read as part of the Ontario Temperance Act 1916, ;Ahich by section 41 already prohibits with certain exceptions, the transport or keeping of liquor, so that in spite of an elaborate-title and very general pro- visions this Liquor Transportation Act really attempts to render illegal the importation of liquor into Ontario. - It would look as if this Liquor Transportation Act was intended to supplement contem- porary Dominion legislation," coming into force in Ontario as a result of a plebiscite, but as the field is one which belongs exclusively to the Federal legislature, whether there is Dominion legislation or not, the Act would be unconstitutional for the province.

472 The Canadian Bar Review. LNo. VI I

If there is any additional purpose contemplated by this Act it is impossible -is it now stands to separate the objectionable from the unobjectionable portions. An Act passed by Ontario in 1922 dealing with the Carriage of Liquor within the province is open to the same objections.-", That the practical effects of an Act must be considered in deter- mining the question of its constitutionality under the British North America Act has been laid down by the Privy Council and has been followed by the Ontario courts.21 The practical effect of these enactments is to interfere with matters which are properly the con cern of Dominion legislation. Accordingly in their present form these Acts would be ultra vires the province. Prince Edward Island, , and Alberta 22 have legislation which seems to involve the same question. Both the Alberta and Prince Edward Island Acts contain saving sections, but in the latter the prohibition against possession is supposed so to interfere with importation as to be unconstitutional in spite of the saving clauses . Careful examination of the wording of these clauses indicates that the decision of the Supreme Court of the Province in the case of R . v. Flood 23 in which this section was dealt with, was quite erroneous. They should rather have interpreted the section so as to exclude any meaning which would indicate that the Act was unconstitutional, as Haultain, C.J .S. did in the case of Canada Drugs Limited v. The Flttorney-General of Saskatchewan.-3n The Quebec Legislation 24 is very puzzling since the prohibition of the possession of liquor, except liquor obtained from or through the Board, is to be found both in the Alcoholic Liquor Act, and in an Act dealing with the Possession and Transportation of Liquor. The Liquor Act itself contains a variation of the usual saving clause. (i .e., sec. 2. Nothing in this Act must be interpreted as forbidding or regulating any transaction which is not subject to the legislative authority of the Province.) The Possession and Transportation Act exempts shipments through the' province and also makes provisions for the carrying on of busi- ness by distillers, brewers, and others licensed by the Dominion. In so far as this latter Act attempts to prevent private importation it is ultra wires, without a saving clause similar to that in the Liquor Act. (See sec. 2 supra ) The Dominion Legislature has passed legislation° ;5 dealing ~Nith interprovincial and international trade in liquor, but the application of this legislation is made conditional in each case upon a plebiscite

Sept., 1926] - Liquor Legislation iu Canada. 473

and or an order-in-council from the Lieutenant-Governor in Council of-each province . Under the division of powers made by the British North America Act the Dominion has power to -enact provisions dealing with these matters without the local option provisions . It is a matter which has a provincial aspect which is compelling, so the present legislation indicates a policy that is very sound. The of advertising are usually in some variation of the 'following comprehensive section and they are quite rightly held intra vires the provinces. Stat. Ont. 1919, c. 60, s . 22. " No person hether licensed or unlicensed acting either by himself, his clerk, servant or agent, and no person as such clerk, servant or agent sha11 within Ontario print, publish, or distribute, either publicly or privately any circular or any newspaper containing a price list of intoxicating liquor used for beverage purposes however described, or _ any announcement however expressed having for its object the solici- tation within Ontario of orders for such liquor, and no person within Ontario shall by any other means whatever solicit such orders. Every person who violates this section or any part thereof Or allows such violation to be committed or contrived shall be guilty of an offence against the Ontario Temperance Act and shall incur the penalties provided by section 58 of the said Act. But nothing herein con- tained shall affect a manufacturer v ithin the Province of Ontario provided that he does not print, publish or distribute as aforesaid any circular or newspapers which in the discretion of the board is objec- tionable.", 26 This last sentence and the other provisions of the Act show a remarkable lack of initiative, considering the answer of the Privy Council to question 3 in the case of 1896. The newest problem is that arising under the Acts dealing with Government stores and governmental control27 Thus section 64(1) of c. 146, R.S.B .C. 1924, provides that " Except in the case of [Usual list of. exceptions] . . . every person who keeps, or has in his possession,or under his control any liquor which has not been pur- chased from a vendor at a Government liquor store shall, by writing 1n the prescribed form, report the same to the board forthwith; and shall pay to the Board for the use of His Majesty in the right of the Province, a tax to be fixed by the Board either by a general order or by a special order in any particular case, at such rates as will, in the , opinion of the Board, impose in each case a tax equal to the amount of the profit, v hich would have accrued to the Government in respect of the liquor so taxed if it had been purchased from a

474 The Canadian Bar Review. LNo. VI I

Government liquor store, increased by the addition to that amount of an amount equal to ten percentum thereof " Subsections 2 and 3 deal with the amount of the penalties which are heavy. The Supreme Court of British Columbia upheld this section as coming under number 2 of section 92, i.e., direct taxation within the province. Following the Manitoba Case of 1902 interference with Dominion Revenue is held to be no good reason for unconstitutionality. , From a practical point of view this tax is not an easy one to collect, nor is it likely to increase the respect for, nor observance of, law and authority in British Columbia. Another question still untouched is that of total prohibition of the manufacture of liquor within a province by a provincial legis- lature. This was one of the questions submitted to the Privy Council in the case of 1896, i e., question 3. "Answer to question 3. ` In the absence of conflicting legislation by the , their Lordships are of opinion that the provincial legislatures would have jurisdiction to that effect if it «ere shewn that the manufacture was carried on under such circumstances and conditions, as to make its prohibition a merely local matter in the province!" There are manufacturers and distillers, etc , in the various provinces who are licensed to manufacture and or export under the Inland Revenue Act,=s which is a Dominion statute. All provincial and federal pro- hibitory Acts exempt these people from any penalties except as to sales to individuals for beverage purposes. The competency of the Dominion to legislate on these matters, i.e., licensing, probably comes under the power of the Dominion to impose direct and indirect taxa- tion, and possibly in some of their aspects under Trade and Com- merce. The Dominion prohibitory powers have by the Toronto Electric Case29 been put under the general power given by section 91, which power can only be invoked in emergencies to override specific provincial powers. The fact that provincial prohibitory legislation may interfere indirectly with the amount of Dominion revenues has never operated against such provincial legislation, i.e., Manitoba case of 1902. Why then should provincial prohibition of manufacture be ultra vires because it cuts off a source of Dominion Revenue' That the rights of the provinces in a contest of this sort would be upheld in the Supreme Court and .the judicial Committee, one can be certain of from thé decisions and opinions in the Insurance litigat- ion.*3° Undoubtedly there as here t,~N o aspects were in conflict, but the practical nature of the legislation was looked at and quite properly the dominant aspect was considered to be the provincial

Sept., 1926] Liquor Legislation in Canada. 475

Also the attempts of the Dominion to legislate by subterfuges, such as the criminal law have been unsuccessfu131 The only ground avail- able to the Dominion, that of an existing emergency, is,absent now, and it may well be doubted if an emergency ever did exist .to justify the Canada Temperance Act A comment should be made on the answer of their Lordships of the judicial Committee to question 3 noted above. It is character- istically evasive, and leaves an almost insuperable' problem, that of conceiving any other aspect of manufacture of significance, except the aspect of " a merely local matter in the province." The question of taxation has never been answered in favour of the Dominion in such cases. The question of importation of liquor for the purposes of export, and the subsequent export of liquor, or the -export of liquor already in the province has been dealt with by Dominion legislation already noted. These statutes still exempt persons licensed by the Dominion, and only the Dominion can affect exporters . The Dominion power to legislate for this purpose exists independently as contrasted with its prohibitory powers ; this power coming under. either Trade and Commerce- or the opening clause of section 91 . The legal theories involved in these problems now seem to be quite clear, but great confusion has been caused by careless and inept amendment of acts already sufficiently obscure. As usual in such cases the courts are held to blame for the sins of the legislatures, and as usual, most of all, their Lordships of the Judicial Committee of His Majesty's Imperial Privy Council. J . F . DAVISON . '. Halifax.

7 A.C. 829. See also opinion in Russell v. The 2 119251 A.C. 396. Queen at pp. 839, 841 . 3 City of Fredericton v. The Queen 4 7 A.C. 829 at p. 836 and again at 3 S.C.R. 505 at p. 571 per Gwynne, p. 842 per Sir Montague Smith. 1. . "Now, that the intemperate use SAttôrney-General for Ontario v. of spirituous liquors is the fruitful Atiorney-General, for the Dominion cause of the greater part of the crime and The Distillers and Brewers' Asso- which is committed throughout the ciation of Ontario, [18961 A.C. 348. Dominion-that it is an evil of a 'Quoted by Lord Watson in 1896, national, rather than of a local or A.C. at p. 363 from the case of City provincial character, will not, I ap- of Toronto v. Virgo. prehend, be denied. The adoption of 1896 A.C. 368. Lord Watson. any measures calculated to remove 'The questions and answers are re- or deminish this evil. . . is, there- ported in [18961 A.C. at p .349 and fore, a subject of national rather than are as .follows :- of provincial import, as calculated "(1) Has a provincial legislature to promote the peace, order, and good jurisdiction to prohibit the sale within government of Canada, is a matter the province of spirituous, fermented, in which the Dominion at large and or other intoxicating liquors? all its inhabitants are concerned." " (2) Or has the legislature such 476 The Canadian Bar Review . [No. VI 1 jurisdiction regarding such portions REVIEW for March, 1923 and quoted of the province as to which the Can- below) . ada Temperance Act is not in opera- Answers to questions 5 and 6.- tion? Their Lordships consider it unneces- " (3) Has a provincial legislature sary to give a categorical reply to jurisdiction to prohibit the manufac- either of these questions. Their opin- ture of such liquors within the pro- ion upon the points which the ques- vince? tions involve has beeen sufficiently " (4) Has a provincial legislature explained in their answer to the jurisdiction to prohibit the importa- seventh question." tion of such liquors into the province? The answer to the seventh question "(5) If a provincial legislature has is in the affirmative, but the reasons no jurisdiction to prohibit sales of take up most of the judgment and such liquors, irrespective of quantity, cannot be given in this short note. has such legislature jurisdiction to Extract from the Order in Council prohibit the sate by retail, according in Hodge v. The Queen as reported to the definition of a sale by retail in Volume 1 of the CANADIAN BAR either in statutes in force in the pro- REVIEW at p. 231 . vince at the time of Confederation, "4. In answer to the fourth ques- or any other definition thereof? tion :-No useful answer can be given "(6) If a provincial legislature has to this questi n in the absence of a a limited jurisdiction only as regards precise statement of the facts to which the prohibition of sales, has the legis- it is intended to apply. There may be lature jurisdiction to prohibit sales some circumstances in which a Pro- subject to the limits provided by the vincial Legislature will and others in several sub-sections of the 99th sec- which it will not have such jurisdic- tion of the Canada Temperance Act, tion. or any of them (Revised Statutes of "7. In answer to the seventh ques- Canada, 49 Vict, ch 106, sec. 99)? tion :-That the Legislature of On- "(7) Has the Ontario Legislature tario had jurisdiction to enact section jurisdiction to enact sec. 18 of the 18 of the Act 53 Vict. ch. 56, as Ontario Act, 53 Vict. ch. 56, intituled explained by sec. 1 of the Act 54 "An Act to improve the Liquor Li- Vict. ch. 46, but that the said enact cense Acts," as said section is explain- ments are operative only in so far ed by Ontario Act 54 Vict. ch. 46, as they are not in conflict with any intituled. "An Act respecting local op- statutory provision competently made tion in the matter of liquor selling'?" by the Parliament of Canada and be- Answers to questions 1 and 2.- ing in force within the province or Their Lordships think it sufficient to any district thereof." refer to the opinions expressed by 'Attorney-General of Manitoba v. them in disposing of the seventh ques- Allanitoba License Holders' Associa- tion. tion [19021 A.G. 73. Answer to question 3.-In the ab- "Nova Scotia Temperance Act, R. sence of conflicting legislation by the S.N .S. ch. 158, 1923 ; 1924, ch. 78 am., Parliament of Canada, their Lord- 1925, ch. 69 am. ships are of opinion that the provin- Intoxicating Liquor cial legislatures would have jurisdic- Act, 1916, ch. 20; 1917, ch. 22 am. ; tion to that effect if it were shewn 1918, ch. 57 am. ; 1919, ch. 53 am. ; that the manufacture was carried on Taxation of Liquor Exporters Act, under such circumstances and condi- 1922, ch. 3. tions, as to make its prohibition a Prince Edward Island. An Act to merely local matter in the province . Consolidate the Provisions on Prohi- Answer to question 4,-Their Lord- bition of Liquors, 1918, ch. 1 ; 1922, ships answer this question in the nega- ch. 10 am. ; 1923, ch 11 am. ; 1924, ch. tive. It appears to them that the 12, sec, 8 am. : 1925, ch. 11, sec. 9 am. exercise by the provincial legislature Quebec. Alcoholic Liquor Act, R. of such jurisdiction in the wide and S. Que., ch. 37, 1925. Alcoholic Liquor general terms in which it is expressed Possession and Transportation Act, would probably trench upon the ex- R.S. Que. ch, 38, 1925. clusive authority of the Dominion Ontario. Ontario Temperance Act, Parliament . (See, however, the cor- 19]6, ch. 50: 1917, ch. 50 am. ; 1918, rect version given in CANADIAN BAR ch. 40 am. ; 1919, ch. 60, ch. 61, sec. 2

' Sept., 1926] Liquor Legislation in Canada. 477

am. ; 1920, ch. 78, ch. 80 am. ; 1921, 152. Subject to subsection two of ch. 73 am. ; 1922, ch. 50, sec. 9 am.,' section one hundred and fifty-six, ch. 86 am., ch. 87 off. ; 1924, ch. 65 upon the receipt by the Secretary am., ch 66, sec. 10 rep.; 1925, ch. 67 of State of Canada of a duly certified am. copy of a resolution passed by the Manitoba . Liquor Control Act. Legislative Assembly of any province Consolidated Statutes of Manitoba, (or in the case of the Yukon Terri- 1924, ch. 116 ; 1925, ch. 31-32. . Mani- tory, of the Council of the Yukon toba Temperance Act, Consolidated Territory) in which there is at the Statutes of Manitoba 1924, ch. 118. time in - force a law prohibiting the Saskatchewan. Liquor Act, 1925, sale of intoxicating liquor for bever- ch. 53; 1925-6, ch. 57 am. Sale of age purposes, requesting that the votes Liquor Act, R.S.S., 1920, ch. 194, of the electors in all the electoral dis- 1920-21, ch. 70; 1921-22, ch. 76 am. ; tricts of the province may be taken 1922, ch. 45 am. for or against the following prohibi- Alberta. Government Control and tion, that is to say, " That the impor- Sale of Alcoholic Liquors, Stat. Alber- tation and the bringing of intoxicat- ta, 1924, ch. 14 ; 1925, ch. 3 am. ; ing liquors into such province may be R.S.S. Alberta, 1922, ch. 226; 1923, forbidden ; the Governor in Council ch. 5 ; 1924, ch. 14; 1925, ch. 3. may issue a proclamation. British Columbia. Liquor Control " Gold Seal Company v. Dominion (Government Liquor Act), R.S.B.C. Express Co. et al, (supra). See parti- 1924, ch. 146 ; 1924, ch. 30 am. cularly opinion of Duff, J . Canada . Canada Temperance Act "Security Export Co. v. Hethering- R.S.C., 1906, ch. 152; 1908, ch. 71 ; ton (supra) . 1910, ch. 58; 1914, ch. 53 ; 1916, ch. The Liquor Exporters Taxation Act 14; 1917, ch. 30 ; 1919 (2 Sess.), ch, 8; 1922 (N.B.), ch. 3, which professes to 1921, ch. 20; 1922 ch. 11. Inland Reve- impose a tax upon everybody who has nue Act, R.S., Can., 1906, ch. 51 ; 1908, in the Province liquor for export and ch. 34 ; 1910, ch. 30 ; 1911, ch, 13, 1914 upon everybody in the Province who (2 Sess.), ch. 6; 1915, ch, 17 ; 1918, ch sells or_ ships liquor to be delivered 7.8 ; 1920, ch. 52; 1921, chs. 26. 34 ; 1922, at any place outside the Province, is ch. 27 ; 1923, chs. 53, 54. an enactment which the Province has 1926 amendments were unobtainable no authority to pass in execution of when this information was collected. its power to legislate in relation to 1°a Stat. Man. 1924, ch. 118, sec.,119; the subject of "direct taxation within Ont. Stat., 1916, ch. 50, sec. 139. the'Province" under section 92(2) of "See also A.E.I . Stat. 1918, ch, 1, the B.N.A. Act. sec. 162 ; R.S.S. 1920, ch. 194, sec- 102. Hudson. Bay Co. v. Heffernan (su- "Hudson Bay Co. v. Heffernan, 29 pra). C.C.C. 38 (S.C. Can.) . ; Security Ex- The Saskatchewan Act to prevent port Co. v. Hetherington, 1923, 3 D.L. the keeping of liquor for export to R. 519 (S.C. Can.) ; Gold Seal Ltd. v. other provinces or to foreign coun- Dominion -Express Co. and Attorney- tries is ultra vires as an interference General for Alberta, 62 D.L.R. 62 (S. with trade and commerce and not C. Can.) ; R. 'v. Regina Wine and within the jurisdiction of a Provincial Spirit, Limited; R. v Prairie Drug Legislature. Co., 65 D.L.R. 258 ; Canada Drugs " Stat. Ont., 1920, ch. 80. Limited v. Attorney-General of Sas- " Section 4 of ch. 80, Stat. Ont., katchewan, 67 D.L.R. 3. 1920. "Dom-inion . ,10 Geo. V. ch. 8, 1919. (1) Every person within the Pro-, An Act -to Amend the Canada Tem- wince of Ontario who, by himself, his perance Act.. servant or agent, Section (1) . The Canada Temper- (a) Transports or carries liquor ance Act, chapter one hundred and, within Ontario for sale or consump- fifty-two of the Revised Statutes of tion within the Province ; or Canada, 1906, is amended by adding (b) Transports or carries liquor the following part immediately after- from any brewery, distillery, ware- section one hundred and fifty-one house, storehouse, dock, railway sta- thereof tion or other place or premises within Part 1V.-Importation and Manufac- Ontario to any other place or prem- ture of Intoxicating Liquor. ises or to any person in Ontario, for 31-C.B.R.-VOL. IV, 478 The Canadian Bar Review. [No. VI 1 sale or consumption within the Pro- ing the time such liquor is being car- vince; or ried or conveyed as aforesaid shall (c) Delivers liquor to any person open or break or allow to be opened ir. Ontario for sale or consumption or broken any package or vessel con- within the Province ; or taining the same, or drink or use or (d) Receives or takes delivery of allow to be drunk or used any liquor liquor in Ontario for sale or consump- therefrom.) tion within the Province, shall be Section 41, subsec. (1) . Except as guilty of an offence, etc, provided by this Act, no person by Section 6. Nothing in this Act con- himself, his cleric, servant or agent tained shall prevent or apply to, shall have or keep or give liquor in (a) The sale, carriage, transporta- any place wheresoever, other than in tion or delivery of liquor for export the private dwelling house in which from Ontario; he resides, without having first ob- (b) The carriage or transportation tained a license under this Act auth- of liquor through Ontario from any orizing him so to do, and then only place out of Ontario to any other as authorized by such license. place out of Ontario; "Section 30 of the Ontario Tem- (c) The sale, carriage, transportation perance Amendment Act, Stat. Ont., or delivery of liquor by or under the 1918, ch. 40. During the time any order of the Board; statute of the Parliament of Canada (d) The carriage, transportation, or any Order-in-Council passed there- receiving or taking delivery of liquor under is in force the effect of which which may be lawfully sold, carried, is to prohibit the transportation of transported or delivered under sec- liquor into or out of this province tion 43 or section 154 of The Ontario for any purpose, sections 43, 45, 46 Temperance Act or section 30 of the and 139 of The Ontario Temperance Ontario Temperance Amendment Act, Act shall be deemed to be suspended 1918. to the extent necessary to conform to Section 7 reserves rights and powers the provisions of such statute or or- of the Board to import or deliver. der. Section 9 contains an exception that (a) Nothing in this section or in the Act shall not apply to sales of The Ontario Temperance Act con- native wines. tained shall be deemed to prevent Section 8 amends section 43 of t'te the owner of liquor in his private Ontario Temperance Act as follows: capacity within the Province trans- (Part in brackets is hereby struck out) porting the same or any part thereof Sec. 43, Ontario Temperance Act, from any place where the same may 1916, ch. 50. Nothing in section 40 be lawfully kept to any other premises hereof contained shall apply to sales or place where the same may be law- under execution or other judicial pro- fully kept and which such owner con- cess or for distress, or to sales by trols within the Province of Ontario. assignees or trustees in bankruptcy or provided that the ownership in such insolvency, provided that the stock liquor remains unchanged. of liquor is not broken for the pur- l" Section 139a, Ontario Temperance pose of such sale (and nothing in sec- Act (Stat. Ont., 1921, ch. 73, sec. 7) . tion 41 contained shall prevent corn In the event of the importation of mon carriers or other persons from intoxicating liquor into the Province carrying or conveying liquor from a of Ontario for beverage purposes be- place outside of Ontario to a place ing prohibited under the provisions of where the same may be lawfully re- sections 153 and 154 of The Canada ceived and lawfully kept in Ontario, Temperance Act as enacted by chap- or from a place where such liquor is ter 8 of an Act passed by the Parlia- lawfully kept and lawfully delivered ment of Canada in the tenth year of within Ontario to a place outside On- the reign of his Majesty, King George tario, or from a place where such V., section 139 of The Ontario Tem- liquor may be lawfully kept and law- perance Act (see supra, p. 5), shall fully delivered in Ontario, to another upon the issue of the proclamation of place in Ontario where the same may the Lieutenant-Governor in Council be lawfully kept, or through Ontario provided for by section 10 of The from a place outside of it to another Liquor Transportation Act, 1920, be place outside of it, but no person ctur- deemed to be amended to the extent

Sept., 1926] Liquor Legislation iii Canada. 479

necessary to give full éffect to the viz., that where the condition sought said prohibition and to the provisions to be imposed by the Dominion has of the said last-mentioned Act. the effect of trenching on any of the The provision under the Canada enumerated powers which are exclu- Temperance Act (see note 13, supra) sively entrusted to the Provincial was put in force in Ontario by a Legislature by sec. 92, the right to Dominion Order-in-Council No. 2115, impose and enforce such a legislative dated June 18th, 1921. Apparently condition must as to its constitu- the Ontario Act of 1920 is supposed tional validity be considered and test- to fit in with this legislation. But it ed by the same principles as those looks ultra vires either with or with- which are applicable to direct legisla- out this attempt to supplement the tion, for it is well established that the Dominion legislation, for it trenches Dominion Parliament cannot -do in- upon the Dominion sphere. directly what it cannot do ,directly." =° Stat. Ont., 1922, ch. 87. Deals His Lordship goes on to cite U.S. and with Carriage of Liquor on Highways Privy Council opinions to the same of the Province, which is prohibited effect. The principle would seem by section 3. Section 4 gives. the equally applicable to attempts by the Board power to make any provisions Provinces to interfere with matters it sees fit. of Dominion concern. Section 5. Nothing in this Act con- Stat. P.E.I., 1918, sec. 52, ch. 1. tained shall prevent or apply to: No person shall keep or have in his (a) the sale, carriage, transporta- possession any liquor unless such tion or delivery of liquor under the liquor has been purchased from a order or direction, or with the permis- vendor in accordance with the pro- sion of the Board ; visions of this Act. Any liquor in (b) the carrying, transporting, re- possession of any partnership or com- ceiving or taking delivery of liquor pany shall be deemed to be in the which may be lawfully sold, carried, possession of each member thereof, transported or delivered under sec- all liquor purchased from a vendor tion 43 of The Ontario . Temperance shall, until actually used, be kept in Act, or under clause a of section 30 the bottle or container on which the of- The Ontario Temperance Amend- label has been attached by the vendor ment Act, 1918; in accordance with the provisions of (c) The rights and powers of the section 49. Board to purchase, import, sell, sup- Any person having in his possession ply or deliver liquor for any purpose any liquor which is not in a bottle or permitted by The Ontario Temper- container on which such label is at- ance Act. tached shall be presumed to have such Note also that section 139 of The liquor in his possession in violation Ontario Temperance Act is suspended of the provisions of this section. by section 139a, note (19) supra. This section shall not apply to Cf . Canada Drugs Limited v. At- wine for sacramental purposes in the torney-General of Saskatchewan, 67 possession of a clergyman or church D.L.R. 3. Haultain, C.J.S. says at p. goods agent provided such wine has 5 : " If this section is intended to been obtained by such clergyman or affect or prevent the delivery of liquor. church goods agent in the manner sold for export to persons outside the provided by .section 44; nor shall this Province, it is, in my opinion, beyond section apply to liquor in the posses- the powers of the Legislature. It sion of a vendor licensed under this directly interferes with inter-provin- tact ; nor to alcohol in the possession cial' and foreign trade, and attempts of, a druggist in a package under seal to deal with a matter which is not or on which a permit has been affixed merely of a local nature in the Pro- in accordance with the provisions of vince and directly infringes on the section 187. exclusive jurisdiction of Parliament Section 162. While this Act is in- in respect of the regulation of trade tended'to prohibit and shall prohibit in a matter of inter-provincial or transactions in liquor, which take international concern." place wholly within the Province of `Re Insurance Contracts Refer Prince Edward Island, etc., follows ence, 58 O.L.R., p. 422. Masten, J.A. pretty closely sec. ,139 of Ontario -"I agree; subject to one exception, Temperance Act. 480 The Canadian Bar Review.

Stat. Alberta, 1924, ch. 14, sec. 146, holic liquor manufactured by him, 1925, ch. 3, sec. 12. and may ship the same out of the 11 R. v. Flood, 70 D.L.R. 310; 38 Province or sell it to the Quebec Can. C.C. 403. Decides that the vari- Liquor Commission, as provided in ation of wording in section 162 the Alcoholic Liquor Act (ch. 37) ; from section 139 of the Ontario Act or (5) in conformity with the pro- renders section 162 so obscure that visions of the Alcoholic Liquor Act the exceptions will not save section (ch. 37) by a brewer holding a permit 52 (see note 22, supra). as to beer manufactured by him and Mathieson, C.J., at p. 411, 38 Can. by those lawfully purchasing such C.C. : "The essential differences be- beer. tween the legislation of this Province Section 4. Nothing in this Act or and that of Manitoba and British the Alcoholic Liquor Act (ch, 37) Columbia upon which the above de- shall be construed as forbidding the cisions were based, is that they ex- continuous transportation with or pressly provided for the export trade without transshipment of alcoholic keeping an open but guarded channel liquor through the Province from any through which it was to flow, while place outside the Province provided the legislation of this Province with that the transportation of alcoholic which we have to deal attempts to liquor without a bill of lading show- extinguish the export trade. Even ing shipment from one place outside the declaration contained in sec. 119 the Province to another place out- of the Manitoba Act and sec. 57 of side the Province, shall create a con- the British Columbia Act repudiating clusive presumption that the said any intention of interfering with the liquor is intended for delivery within export trade is so modified in the the Province. form in which it appears in sec. 162 The objection to this Act as pro- of our act that its meaning is carried hibiting importation and transporta- into a circle and lost." tion have already been noted in con- z3a Canada Drugs v. Attorney-Gen- nection with similar Ontario Legis- eral of Sackatchewan ( supra) . lation . The prohibition of possession 21 R.S. Que. 1925, ch. 37, Alcoholic is more difficult. The many excep- Liquor Act. Ch. 38, Act dealing with tions seem to indicate merely another Possession and Transportation of disguise for ultra vires legislation, i.e., Liquor, sec. 3. No alcoholic liquor prohibition of importation. The deci- as defined in the Alcoholic Liquor sion of the Supreme Court of Prince Act (ch. 37 R.S. Que. 1925) shall be- Edward Island in R v. Flood would kept, possessed, or transported in the seem applicable to this case rather Province, except than to the P.E.I. Act. (1) by or for the Quebec Liquor -6 See note 13 for the provisions Commission; (2) in accordance with dealing with prohibition of import the provisions of the Alcoholic into a Province . The prohibition of Liquor Act (ch. 37) by those who export of liquor from a province is have acquired it from the Quebec contained in ch. 11 of the Dominion Liquor Commission, or who have Statutes of 1922, which is an amend- acquired the same upon the authoriza- ing act to the Canada Temperance tion of such Commission in accord- Act. ance with section 30 of the said act ; Section 2. Said Part IV. is further (3) in the residence of any person amended by adding immediately after for personal consumption and not for section one hundred and fifty-six the sale, provided it has been acquired following sections : by or delivered to such person in his 157. Upon receipt by the Secretary residence, previous to the Ist of May, of State of Canada of a duly certi- 1921, or has been acquired by him fied copy of an order-in-council passed since that date, from the Quebec by the Lieutenant-Governor in Coun- Liquor Commission ; (4) by any dis- cil of any province in which the im- tiller, licensed by the Government of portation of intoxicating liquors into Canada for the manufacture of alcohol the Province has been prohibited or spirits, or by any wine manu- under this Part. and in which such facturer, who may keep for sale in prohibition is still in force, requesting his manufacturing establishment or that the keeping of such intoxicating warehouse in the Province any alco- liquor in such province for export Sept., 1926] Liquor Legislation in Canada. 48 1

and the exportation of intoxicating published in the next issue of the liquor therefrom by persons other Ontario Gazette. than brewers and distillers duly See also R. v. Shaw, 29 Can. C.C. licensed by the Government of Can- 130, upholding a-similar provision in ada, be forbidden, the Governor-in- a Manitoba statute; and The King v. Council may by-order-in-council de- 6hesterii Canada Liquor Co. 60 D.L.R. clare that such prohibition shall come 217, upholding similar B. , C. legis- into force in such province on a day lation . Galliher, J. A., at p. 221. In to be named in such order-Provided reading these authorities it seems diffi- that such day shall not be prior to the cult to know just where to draw the first day of October, 1922." line and each case must be largely These provisions have been adopted determined on its own facts, but this as to import in all the Provinces much can, I think be deduced that if except Quebec and British Columbia. upon looking at the whole 'Act and _ Some of them also have adopted the considering the purpose and intent as provisions restricting export as well. indicated the language used, it can Import : Nova Scotia, order-in-coun- be concluded that although to some cil, Canada Gazette, Jan. 8th, 1921, extent it may trench upon the pro- 3229; Manitoba, order-in-council, visions as to trade and commerce, Canada Gazette, Jan. 8th, 1921, 3230; yet if its true effect is a dealing with Saskatchewan, order-in-council, Can- matters of a merely local or private ada Gazette, Jan. 8th, 1921, 3231 ; AI-, nature, it is within the jurisdiction berta, order - in - council, Canada of the Province to pass." Gazette, Jan. 8th, 1921, 3232 ; Ontario, =' Little v. The Attorney-General order-in-council, Canada Gazette, Jun. for British Columbia, 65 D.L.R. 297. 5th, 1921, 2115; New Brunswick, orrer- in-council Canada Gazette, Dec. 17th, The tax imposed by section 55 1921, 4584 ; Prince Edward Island, of the B. C. Government Liquor Act order-in-council, Canada Gazette, Apr. (B.C. Stat. 1921 ch. 30) which says 20th, 1923, 646. in effect that any person in the Pro- Export : Alberta, order-in-council, vince becoming possessed of imported Canada Gazette, March 5th, 1923, 385 ; liquor must report the fact, and pay Manitoba, order-in-council, Canada to the Government such a tax on Gazette, Apr. 25th, 1923, 715 ; New such liquor as will in the opinion of Brunswick, order-in-council, Canada the Board of Liquor Control put the Gazette, Oct. 3rd, 1923, 1944 ; Prince Province in the position it would have Edward Island, order-in-council, Can- been in, if the holder of such liquor ada Gazette, June 23rd, 1923, 1098. had purchased it from the Govern- These provisions have been con- ment stores, is a direct tax and within the power of the Provincial Legisla- sidered in Gold Seal Limited v. "If Dominion Express Co. and the Attor- ture. Per MacDonald, C.J. ney-General for Alberta. 62 D.L.R. there were no such act on the statute ,62 and properly held to be intra vires. book as the Liquor Act and the Pro- Their effect under differing sorts vince had put a heavy tax on liquor Temperance Legislation has also within the province held for private of or domestic consumption it could been considered in A .G. for Ontario, contended that such v. Smith, 53 O.L.R. 512 (Aff. S.C. hardly have been Can.) and R. v. Nadan, 1925, 1 D.L.R. a tax would have been illegal though 429, particularly in the hearing before the effect of it would have been to the Supreme Court of Alberta. reduce the quantity of liquor imported In both instances the legislation was into the Province and thus to lessen held to be applicable. the revenue of the Dominion from 2° customs duties. But because the tax See also 1917 ch. 50, sec. 53 (1) Ont. pass regulations is part of the scheme of the liquor The board may act, or at all &vents is authorised by prohibiting and regulating within the a section of that Act, it is contended powers of this Province the solicita- that it must be otherwise." (His Lord- tion within Ontario of orders for ship does not agree with this con- Liquor, but this section shall not be tention.) construed to interfere with the pro- 28 visions of section 139 of this Act. Stat. Can. 1902, R.S. Can. ch. 51, (2) Any regulation passed by- the SS. 15, 16, 17. board under this section shall be =° 1925, A.C. 396. - 482 The Canadian Bar Review. [No. VI I

'° See case cited note 21, and cases head 27, appropriate to itself exclus- cited therein. ively a field of jurisdiction in which, ax Attorney-General for Ontario v. apart from such a procedure, it could Reciprocal Insurers, 1924 A.C. 328, at exert no legal authority, and that if, p. 342. Duff, J.: "In accordance with when examined as a whole, legislation the principle inherent in these decisions in form criminal is found in aspects their Lordships think it is no longer and for purposes exclusively within open to dispute that the Parliament the Provincial sphere, to deal with of Canada cannot, by purporting to matters committed to the Provinces, create penal sanctions under sec. 91, it cannot be up-held as valid,"

"WE ALSO APPRECIATE SHAKESPEARE."-NIetzsche. who detested the English people, said this of their greatest poet. And he spoke not only for Germany but for the world. The flags of sixty-two nations (including that of Soviet Russia) were raised in honour of his birthday at Stratford-on-Avon this year. Baron Martin is reported as having amazed so ripe a scholar as Frank Tal- fourd with the remark that Shakespeare was "a very overrated man," but Baron Martin found in law books alone sufficient amplitude for the exercise of his active mind. He was unaware that there was in his day a very large and increasing volume of literature written by members of his profession about Shakespeare's law, and whether the great poet had actually served in his youth as an attorney's clerk. The fact that such enquiries have not yet ceased may extenuate the publication of the following:-

SHAKESPEARE. (On the Tercentenary of his Death, 1916) Shakespeare! I marvel that no prophet's tongue Unfolded when thy spirit had its birth That thou should'st sing unto the list'ning Earth Music more glorious than had yet been sung. But though unheralded, lo! thou went sprung Of the Immortals. In thy veins the worth Of England surged-England that knew no dearth Of greatness when her valiant heart was young. Death for three hundred years hath held in fee What Nature framed of thee in her low clime. How vain the bondage!-for, alert and free, Thy spirit liveth on as in its prime ; Teaching how God-like man himself must be Who weaves the ageless in the loom of Time. CHARLES MORSE.