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1946 Supreme(SC) 2
Privy Council At Ontario
Goddard, Greene, Roche, Lords Thankerton, Justice Viscount Simon, JJ.
Attorney-General of Ontario and others -Appellant
Versus
Canada Temperance Federation and others, -Resopndent
Privy Council Appeal No. 2 of 1940
Decided On : 21-01-1946
Charles Russell and Co., Redden, Blake , A.T. Whitehead, A. Geoffrion , Moderation League, L. Smith, Bethune, Wilfrid Barton, A.G. Ontario, C.R. Magone, Sir Cyril Radcliffe
Federal legislation is valid under the "peace, order and good government" power if its inherent subject matter is a national concern, regardless of an emergency. Once validated, such legislation remains valid through consolidation or re-enactment to prevent the recurrence of the addressed issue.
Headnote:(A) British North America Act - Sections 91 and 92 - Canada Temperance Act, R.S.C. 1927, cap. 196 - Constitutional validity of federal legislation - Power to legislate for the peace, order and good government of the nation - The true test for validity is the real subject-matter of the legislation; if it goes beyond local or provincial concern and is by its inherent nature a concern of the nation as a whole, it falls within federal competence, regardless of whether it touches upon matters reserved to provincial legislatures. (Para 7)
(B) Stare Decisis - Constitutional questions - A previous decision that has stood for several decades and has been acted upon by governments and subjects is firmly embedded in constitutional law and should not be departed from. (Para 8)
(C) Consolidation and Re-enactment - If an original act was constitutionally valid, a subsequent act that replaces and consolidates it is equally valid - Power to legislate for the prevention of a recurrence of a state of affairs is based on the same authority as legislation to cure that state of affairs. (Para 9)
Facts of the case:
A reference was made to determine the constitutional validity of parts of a federal act authorizing a system of local option regarding the sale of intoxicating liquor. The act in question was a consolidated version of an earlier act that had been upheld as valid by the court decades prior. It was argued that the earlier decision was wrongly decided or that the new consolidated act required current emergency circumstances to be valid.
Findings of Court:
The court found that the material provisions of the consolidated act were identical to the original act. The previous decision upholding the original act remained binding and the consolidation did not render the legislation ultra vires.
Issues: Whether the consolidated act was within the legislative competence of the national parliament and whether the previous judicial determination on the original act's validity should be overruled or modified due to a change in circumstances.
Ratio Decidendi: The validity of legislation under the peace, order and good government power depends on the inherent nature of the subject matter rather than the existence of an emergency. Once a subject is deemed a national concern, the national parliament has the power to re-enact provisions to prevent the recurrence of the evil the original statute sought to address.
Result: Appeal dismissed.
Legal Category Hierarchy
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constitutional law
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division of powers
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federal competence
- peace order and good government
- provincial competence
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federal competence
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division of powers
Viscount Simon.-
On 1st June 1939, the Lieutenant-Governor of Ontario in Council referred to the Supreme Court of Ontario under the provisions of the Constitutional Questions Act, R. S. Ont Cap. 130 , the following question :
"Are Parts I, II and III of the Canada Temperance Act, Revised Statutes of Canada, 1927, Cap. 196 , constitutionally valid in whole or in part, and if in part, in what respect ?"
On 26th September 1939, the Supreme Court by a majority (Riddell, Fisher, McTague and Gillanders JJA.) answered the question as follows:
"This Court is of opinion (Henderson J. dissenting) that Parts I, II and III, Canada Temperance Act, Revised Statutes of Canada 1927, cap. 196, are within the legislative competence of the Parliament of Canada."
Against this judgment, the Attorney-General for Ontario and the Moderation League of Ontario have appealed to the Judicial Committee and their appeal has been supported by the Attorneys-General of Alberta and New Brunswick who were admitted as interveners and were represented on the hearing. The appeal was opposed by counsel appearing for the Attorney-General of Canada and for several Temperance Federations The object of the appeal is to challenge the decision of this Board in (1882) 7 AC 829,1 or at any rate to deny its applicability to the Act now in question. The majority of the Supreme Court held that that decision governed the present case and obliged it to answer the question referred to it in the affirmative. The statute which was declared to be within the legislative competence of the Dominion Parliament in (1882) 7 AC 829 : 51 LJ PC 77: 46 LT 889, Russell v. Reg. was the Canada Temperance Act, 1878 . That Act has been amended from time to time by the Dominion Parliament and has been revised and re-enacted in a consolidated form on more than one occasion under the provisions of the Acts relating to the revision of Statutes of Canada. The last revision took place in 1924 under the provisions of the Dominion Act, 1924 , (14 and 15 Geo. V. Cap. 65) and now appears on the Statute Roll as the Canada Temperance Act, R.S.C. of 1927, cap. 196. The material provisions of the Act of 1927 are admittedly identical with those of the Act of 1878. The object of the Act of 1878 was to authorise the adoption of a system of local option in regard to the sale of intoxicating liquor in counties and cities through-out the Dominion. By Part I elaborate provisions are made for bringing the Act into force within the area of any county or city. Following on a petition to the Governor-General in Council supported by a certain proportion of the electors in the area, a poll is to be taken, and if a majority supports the petition an Order in Council is passed bringing the Act into effect in that area for a minimum of three years. Amendments have from time to time been passed dealing with portions of the Dominion which were not divided into counties and substituting electoral districts as the area in such cases, but it is unnecessary to set these out in detail. Part II prohibits the sale of liquors in the areas in which the Act is brought into force, and Part III provides for prosecution and penalties, which in some cases are severe, for breaches of the Act.
The Act having been passed in 1878, its constitutional validity was challenged in 1882 in 7 AC 8291 which arose out of a conviction of the appellant Russell for unlawfully selling intoxicating liquor contrary to the provisions of Part II of the Act. It was argued in that case that the Act was ultra vires of the Dominion Parliament on the ground that the matter was one which fell within S. 92, British North America Act , and was, therefore, within the exclusive jurisdiction of the provincial legislatures. The Board, however, held that the Act did not deal with any of the matters exclusively reserved to the provinces and upheld the validity of the statute on the ground that it related to the peace, order and good government of Canada. This decision has stood un
