468 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 Canada Temperance Act 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 Supreme Court of Canada,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 prohibition 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 local option 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 Manitoba 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 Nova Scotia 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 Ontario 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 Ontario Temperance Act. 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.