Supreme Court of Canada
Smith v. The Attorney General of Ontario, [1924] S.C.R. 331
Date: 1924-05-22
John T. Smith (Plaintiff) Appellant;
and
The Attorney General of Ontario (Defendant) Respondent.
1924: March 4, 6, 7, 11; 1924: May 22.
Present: Sir Louis Davies C.J. and Idington, Duff and Mignault JJ. and Maclean J. ad hoc.
(The Chief Justice presided at the hearing but died before judgment was pronounced.)
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Constitutional law—Temperance legislation—Canada Temperance Act, c. 8, part IV, 10 Geo. V, c. 8 (D)—Ontario Temperance Act—Prohibition of sale of liquor—Action for declaratory judgment—Parties—Status.
Part IV of the Canada Temperance Act enacted by 10 Geo. V, c. 8, prohibiting, in a province which adopts it, the manufacture and importation of intoxicating liquor, is in force in Ontario.
The Ontario Temperance Act, 6 Geo. V, c. 50 and its amendments, is an Act prohibiting the sale of intoxicating liquor for beverage purposes and enables the Legislative Assembly, by resolution and a vote favourable thereto, to make Part IV of the Canada Temperance Act a law of the province notwithstanding it permits the manufacture and sale of wine containing a large percentage of alcohol, the manufacture and export of malt and spirituous liquors and extra-provincial transactions in liquor.
S., residing in Ontario, gave an order to a firm in Montreal to send him a specified quantity of intoxicating liquor. The firm refused the order on the ground that by filling it the Ontario Temperance Act would be violated and S. brought an action against the Attorney General of Ontario asking for a judgment declaring that Part IV of the Canada Temperance Act was not in force in that province.
Held, that S. had no status to maintain such action. Judgment of the Appellate Division (53 Ont. L.R. 572) affirmed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario affirming the judgment at the trial which dismissed the appellant’s action.
The circumstances which led to the bringing of the action for a declaratory judgment are stated in the above head-note. This appeal raises the question of whether or not Part IV of the Canada Temperance Act is in force in Ontario which depends on the further question, namely, is the Ontario Temperance Act an “Act prohibiting the sale
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of intoxicating liquor for beverage purposes?” The appellant claims that it is not.
Rowell K.C. for the respondent moves to quash the appeal on three grounds: 1. Leave should have been obtained. 2. It involves a matter of practice and procedure in Ontario. 3. The judgment appealed from was given in the exercise of judicial discretion. The court reserves judgment and orders that the hearing proceed on the merits.
H.J. Scott K.C. and Tilley K.C. for the appellant. When the resolution purporting to bring Part IV of the Canada Temperance Act into force in Ontario there was no law in the province “prohibiting the sale of intoxicating liquor for beverage purposes.” The Ontario Temperance Act which allowed native wine to be sold and authorized transactions for sale of malt and spirituous liquors was not such an Act, and the subsequent proceedings under Part IV were nugatory. See Gold Seal Co. v. Attorney General of Alberta.
The appellant was entitled to bring this action for a declaratory judgment. [1924] 1 D.L.R. 1; Dyson v. Attorney General.
Rowell K.C. and Brennan for the respondent. If such an action as this lies at all the Attorney General of Canada should be the defendant. See Independent Cordage Co. v. The King at page 630.
An action for a declaratory judgment cannot be brought against the Crown. Dyson v. Attorney General3 does not apply to Ontario practice. Electrical Development Co. v. Attorney General for Ontario.
The law in force in a province when the resolution is passed to bring Part IV into force need not provide for absolute prohibition.
IDINGTON J.—The appellant by this action seeks to have a declaratory judgment as to the effect of certain legislation relative to the prohibiting of importing intoxicating liquors into Ontario.
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He has no other foundation for his action against the Attorney General than that he wrote several dealers in Montreal requesting each of them to supply him, in Toronto, with such liquors, by shipment from Montreal, in the province of Quebec, and their respective refusals on the ground that doing so would be illegal.
The respondent had taken no steps in such matter, nor threatened to do so. Nor had any one on his behalf done so.
He rests his case upon the authority of Dyson v. The Attorney General, and subsequent cases following same and founded on facts analogous to those on which that case turned. The concrete cases presented therein of claims, so respectively made, demonstrate a legal situation whereby a claim was actually made on behalf of the Crown of which the Attorney General was the representative and hence likely to prosecute or liable to be brought into litigation actually threatened.
The appellant presents no such concrete case but a merely speculative case as a British subject that he might, in certain eventualities which have not transpired, be followed by the Attorney General although as yet no such attempt has been made or even threatened or the foundation laid for such action or threat.
In my opinion this is a straining of the said decisions a long way beyond what they are founded upon.
In short it is an attempt to elicit an opinion from the courts which, under the facts, they have no right to give either one way or the other.
So strongly do I hold this to be the case that I must respectfully decline to express any opinion on the questions sought to be raised.
To declare upon such request the interpretation or construction of such acts as in question, under such circumstances, I respectfully submit, is beyond our province.
I, therefore, am of the opinion, with all due respect, that such should have been the view taken by the courts below and should be that of this court in regard to this appeal unless we are quite prepared to assent to such like requests
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on any point of law puzzling any private citizen on any question, for the Attorney General may be said to represent on behalf of the Crown the due and correct appreciation of any statute enacted by the Crown by and with the advice of any duly constituted legislature.
I would therefore dismiss this appeal with costs.
The judgment of Duff and Maclean JJ. was delivered by Duff J.
DUFF J.—It is convenient first to discuss the question raised by the objection taken in limine on behalf of the Attorney General. On behalf of the appellant the decision of the Court of Appeal in Dyson v. Attorney General is cited, and that decision and the series of cases which followed it are relied upon in support of the proposition that in the circumstances of this case the appellant has a title to ask for a judicial declaration on the point in dispute, whether, namely: Part IV of the Canada Temperance Act has been brought into force in relation to Ontario. We assume, against the Attorney General, that if the appellant has a title at all the Attorney General of the province is the proper defendant—or at all events a proper defendant—without giving a decision on the question. We assume also, and as regards this point we may as well say that we have been quite unable to follow the argument addressed to us on behalf of the Attorney General, that the jurisdiction of the Supreme Court of Ontario to pronounce declaratory judgments is a jurisdiction exercisable in cases in which the Crown is a defendant, and without the Crown’s consent.
The circumstances giving rise to the action, stripped of non-essentials, are that the appellant, who is a resident of Toronto, ordered from a dealer in Montreal a case of Dewar’s Scotch Whisky and some ale and lager beer. In reply the dealer said that in view of the fact that the Canada Temperance Act had been brought into force in Ontario, and that importation of whisky into the province was thereby prohibited, he declined to accept the order. Counsel on behalf of the appellant points out that the order of the Governor General in Council professes under section
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153 of the Canada Temperance Act to declare that part in force in Ontario, that the validity of the order in council has been assumed, and that the Act has been enforced by the exaction of the penalties prescribed by it, and by the Ontario Temperance Act, relative to the possession or transport in Ontario of liquor imported into the province. Contending, as he does, that the order in council is illegal and invalid, and that these penalties are not legally exigible, he is debarred, he says, from exercising his legal right to bring liquor into the province, except under conditions which are in practice intolerable—that is to say, by subjecting himself and everybody acting for him to criminal proceedings with their humiliating incidents; indeed that the very existence of the order in council, coupled with the fact that the penal clauses of the statutes are being enforced on the assumption that they are the law of the land, has the effect of preventing dealers in Canada selling him liquor for import into Ontario, and prevents transport companies and others acting for him in course of their lawful business in the transport of such merchandise into or in that province.
Of the decisions relied upon by the appellant, Dyson’s Case and Burghes v. Attorney General may be considered typical. They arose in these circumstances:—
The Finance Commissioners, having certain strictly defined powers by statute, delivered to the plaintiffs a list of questions with a peremptory demand that they should be answered within a nominated time, and the notice contained an intimation, which amounted to a threat, that, unless the demand was complied with, proceedings would be taken to recover the penalties authorized by the statute under which they professed to act. The time nominated was less than the time permitted by the Act; the answers demanded were not answers which the Act authorized the Commissioners to require; and the demands therefore were illegal demands. These notices had been sent broadcast over the country under the authority of the Commissioners, and it may be added that the penalties to which the threat referred were penalties recoverable in the Supreme Court of Judicature, at the instance of the Attorney General.
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There was in each case a demand actually made by the Finance Commissioners, professing to act under the authority of statute, a demand which they were not entitled to make, accompanied by a threat that if the illegal demand were not complied with the person to whom the notice was addressed would be subjected to proceedings at the suit of the Attorney General for penalties.
Two points should be noted in relation to these authorities: first, there was no decision upon a hypothetical state of facts, and secondly, the demand in each case was a personal demand and an illegal attempt to constrain the plaintiff personally by an illegal threat addressed to him as an individual. These points appear, superficially at all events, to mark rather important distinctions between the circumstances of the decisions cited and those of the case now under appeal. As to the penalties, the appellant was subjected to no actual threat and no actual risk; only if the liquor ordered were actually shipped, that is to say, only in a contingency which has not happened, could the appellant be put in jeopardy.
It is not the function of a court of justice to advise parties as to their lights under a hypothetical state of facts.
Glasgow Navigation Co. v. Iron Ore Co.
As to the second point, it is convenient first to indicate more precisely the argument advanced by Mr. Tilley. It is argued that the effect of the order in council bringing the Act into force and the actual enforcement of the Act, by the prosecution of offenders and the exaction of penalties, was to create a situation which in itself constituted an attack by the constituted authorities of the Dominion and the Province upon what were in law the rights of individuals, including the plaintiff, the attack having the consequence of preventing such persons exercising their legal rights in pursuit of their lawful business and otherwise; that this is shown by the refusal of the dealer in Montreal which was one of the natural, direct and intended consequences of the situation so created. There are methods by which the Provincial Government, or the Dominion Government, as the case may be, may ascertain the opinion of the courts with respect to such questions as that raised
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by this appeal. The governments, we are informed, have declined to resort to these methods. Other methods of testing the validity of the Act are, it is said, not practicable for citizens who, in order to bring before the courts an arguable question of constitutional law, are naturally reluctant to expose themselves to the embarrassing incidents of criminal proceedings. The conduct of the authorities concerned constitutes, it is said, an announcement to everybody, including the appellant, that any attempt to exercise his legal right to purchase liquor for transport into Ontario, or to transport it in Ontario, will expose him to prosecution under the statutes; and although there has been no attempt to coerce him into doing any act he is thereby constrained from exercising his legal rights by the certainty that if he attempts to do so he will be exposed to such proceedings. In principle it is said there is no distinction between such a state of facts and circumstances giving rise to the decisions mentioned.
Much may be said, no doubt, for the view that an individual in the position of the appellant ought, without subjecting himself to a prosecution for a criminal offence, to have some means of raising the question of the legality of official acts imposing constraint upon him in his daily conduct which, on grounds not unreasonable, he thinks are unauthorized and illegal. We think, however, that to accede to appellant’s contention upon this point would involve the consequence that virtually every resident of Ontario could maintain a similar action; and we can discover no firm ground on which the appellant’s claim can be supported which would not be equally available to sustain the right of any citizen of a province to initiate proceedings impeaching the constitutional validity of any legislation directly affecting him, along with other citizens, in a similar way in his business or in his personal life.
We think the recognition of such a principle would lead to grave inconvenience and analogy is against it. (An individual, for example, has no status to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act. It is true that in this court this rule has been relaxed in order to admit actions by ratepayers for restraining ultra vires ex-
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penditures by the governing bodies of municipalities; MacIlraith v. Hart. We are not sure that the reasons capable of being advanced in support of this exception would not be just as pertinent as arguments in favour of the appellant’s contention, but this exception does not rest upon any clearly defined principle, and we think it ought not to be extended.
On the whole we think the principle contended for, since it receives no sanction from legal analogy, and since it is open to serious objection as calculated to be attended by general inconvenience in practice, ought not to be adopted. But the question is an arguable one; and, as the merits of the appeal have been fully discussed, we are loath to give a judgment against the appellant solely based upon a fairly disputable point of procedure; and accordingly we think it right to say that in our opinion the appellant’s action also fails in substance.
We now turn to the substantive question raised by the appellant’s action, whether, that is to say, the prohibitions of Part IV of the Canada Temperance Act have the force of law in, and in relation to, the province of Ontario. On the 27th April, 1920, the Ontario Legislature, purporting to act under section 152 of Part IV of that Act passed a resolution in the form prescribed by that section, and the vote taken at the resulting poll having been favourable to prohibition the order in council provided for by section 153, declaring the prohibitions of Part IV in force, was duly passed.
In order that such a resolution may take effect under section 152 it must be passed by the Legislative Assembly of a province in which there is, at the time, in force, a
law prohibiting the sale of intoxicating liquor for beverage purposes.
In substance the contention on the part of the appellant is that this condition was not fulfilled, and consequently, of course, that the resolution of the Ontario Legislature had no legal operation.
In support of this contention certain sections of the Ontario Temperance Act, as it stood at the date of the resolution, are referred to. Under these provisions, it is said, so
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much liberty in dealing in intoxicating liquor was allowed by that Act as to remove the enactment from the category described by section 152, as a
law prohibiting the sale of intoxicating liquor for beverage purposes.
The sections are 41, 44, 45, 46 and 139. The fundamental enactment of the statute is section 40 which provides that nobody, by himself, clerk, servant or agent, shall expose or keep for sale or sell or barter or, for any valuable consideration, give to any other person any liquor without having first obtained a license under this Act authorizing him so to do, and then only as authorized by such license and as prescribed by the Act. Licences may be granted to vendors, and licences by the Government of Canada for the manufacture of liquor are recognized by the Act. The vendor’s licence does not authorize the sale of liquor in quantities greater than those mentioned in the Act or otherwise, or in any other place, or to other persons or for other persons, than provided by the Act. Vendors may sell alcohol for mechanical and scientific purposes, and physicians may give prescriptions in case of actual need, where, in the judgment of the physician, the use of liquor is necessary, and, under the sanction of such prescriptions, the vendor is authorized to sell specified minimum quantities of fermented and distilled liquors and wines. There are also provisions authorizing physicians, dentists and veterinary surgeons to keep on hand limited quantities of liquor for use in the practice of their respective professions. Severe penalties are prescribed for the abuse of these provisions. By section 139 it is declared that the Act 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 by sections 45 and 46 provision is made authorizing manufacturers of liquor to keep the product of their manufacture in a warehouse for export, and there is likewise provision for the maintenance of bonded warehouses. By section 47 the Act prohibits the use or consumption in Ontario of liquor which has been purchased or received from any person in Ontario except a licensee. By section 44 authority is given to manufacturers of native wines made from grapes grown in Ontario, subject to regu-
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lations or restrictions imposed by the Board, to sell the same in wholesale quantities, i.e., not less than 5 gallons.
Counsel for the respondent, I think rightly, contends that the object of section 139 is to make it clear that the province in enacting the Ontario Temperance Act was not exceeding the limits of its lawful jurisdiction. In the case of the Manitoba Licensed Victuallers, Attorney General of Manitoba v. Maritime Licensed Holders’ Association, Lord Macnaghten pointed out that the decision of the Privy Council in 1896 had left undetermined the question whether the authority of the provinces to suppress the sale of liquor was an authority derived from head 13-92 “Property and civil rights” or from head 16, the residuary subdivision, “Matters merely local or private within the province,” but intimated an opinion that it must be ascribed to the latter head. The presence in the Manitoba Act of a provision similar to section 139 was noted in the judgment as manifesting an intention on the part of the legislature to deal with the subject of the sale of liquor as a strictly provincial matter. Similar declarations have appeared as a rule in provincial legislation on this subject since then. Section 139 does not in any pertinent respect differ from the section in the Manitoba Act, and ought, we think, to be interpreted as filling the same office. The sections relating to the sale of liquor by “vendors” are not enactments dealing with the sale of liquor “for beverage purposes,” and obviously, the same may be said with regard to sales for manufacturing and scientific purposes. Nor again can it be contended with much plausibility that the recognition of manufacturing establishments operating under Dominion licences and of bonded export warehouses touches the subject. It is quite true that the manufacturer sells to a customer beyond Ontario and that the bonded warehouseman sells for export, but though they sell “for beverage purposes,” they do not sell for consumption within the province. These provisions seem to be entirely consistent with the scope of the statute, as a measure of provincial operation, suppressing the sale of liquor as a beverage.
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There is, we think, nothing in any of these provisions just discussed which could even raise a serious doubt upon the point whether or not the Ontario Temperanct Act falls within the category described by the words quoted from section 152. That section contemplates a provincial prohibitory law and therefore a law within the constitutional competence of a Canadian province. Neither do we consider it at all doubtful that it must be construed with reference to the existing practice, and with reference to the prevailing view as to the form which provincial legislation should take in order to enjoy security from attack as beyond the powers of a province.
A more serious question, however, arises in respect of section 44. That section gives authority to manufacture and sell native wines without restriction, save as to the minimum quantity sold on any one occasion, and beyond doubt is intended to, and does, authorize the manufacture and sale of wines of such alcoholic strength as to fall within the scope of the expression “intoxicating liquor.” The intention is to exempt from the prohibitions of the statute the native wine industry, and to that extent to encourage the development of the manufacture and sale of wines, made from grapes produced in Ontario, as a beverage. The evidence shews that this industry has grown since the enactment of the Ontario Temperance Act, and it may be assumed that if the law is not changed this growth will be much greater still; and on behalf of the appellant it is argued, by no means without force, that a law protecting and encouraging such an industry and traffic cannot be described properly as a law prohibiting the sale of alcoholic liquor “for beverage purposes.”
We have come to the conclusion that counsel for the Attorney General has made good his contentions:
(1) That notwithstanding this provision the Ontario Temperance Act when viewed as a whole falls within the description in section 152, rightly understood, and
(2) That Part IV itself does recognize the possibility that the prohibitions of that enactment may be brought into force in relation to a province in which the prohibition created by the provincial law is a limited one.
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Counsel for the appellant bases his attack upon the order in council upon the proposition that the condition laid down by section 152 is expressed in language which cannot fairly be interpreted as applicable to the Ontario Temperance Act, and that the other provisions of the statute of 1919 must be construed as giving effect to this principle, not as qualifying it.
We are content to assume the correctness of the view advanced that the critical question is whether or not the phrase used in section 152 can fairly be interpreted as embracing a statute containing such a departure from the prohibition principle as that which is found in section 44.
The term “prohibition” as applied to legislation affecting the drink traffic has never, we think, in Canada denoted, exclusively, a system of repression involving the total abolition of the sale of intoxicating liquor for use as a beverage. For over fifty years Canadians have been familiar with two legislative methods of dealing with the trade in liquors. One, in which the trade, including sales in saloons, inns and restaurants where liquor might be consumed on the premises where it was sold, as well as sales by manufacturers and wholesale and retail merchants, was regulated by means of a system of licences. The other under which, in localities in which the law was in force, the retail trade in spirituous and fermented liquors and in imported wines was wholly abolished. In some instances under this system what was commonly called the “wholesale” trade (sales in considerable quantities) was left unmolested.
Legislation of this last mentioned order has generally been designated as “prohibitory.”
By the Temperance Act of 1864 (27-28 Vict., c. 18) for example, the councils of municipalities of the old province of Canada were empowered by by-law to “prohibit the sale” within the jurisdiction of the counsel “of intoxicating liquors and the issue of licences therefor.” The by‑law, by the requirement of the statute, was to be limited to the declaration that under the authority of the Act such sale and the issue of such licences “is prohibited,” and the provisions of the statute under which this authority was given were grouped under the heading “Provisions as to Local Prohibition.” And yet by these provisions any brewer or
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distiller, as well as a merchant or trader having his place of business within the locality affected by the by-law, was permitted to sell spirituous liquors (in the case of the distiller of his own manufacture) in quantities of not less than 5 gallons on any one occasion, and beer (which in the case of the brewer must be of his own manufacture), in quantities of not less than one dozen bottles.
This measure has, I think, always been classed as a measure of local prohibition, according to the description contained in the statute itself, and is so referred to in the judgment of Lord Watson, in A.G.O. v. A.G.,
The Temperance Act of 1864 was repealed by the Canada Temperance Act, which came into force in 1878; and by that enactment the sale of spirituous and fermented liquors and imported wines, for consumption as beverages in any county in which Part II of the Act is in force, is wholly abolished; but the manufacture of native wines from grapes grown in Canada and the sale of such wines in quantities of not less than 10 gallons is permitted.
Part II of the Canada Temperance Act is described in the Act itself as legislation relating to “the prohibition of the traffic in intoxicating liquors,” and in popular speech as well as in more formal utterances it has received the same designation. The references by counsel for the Attorney General to judgments and to arguments before the courts illustrate this; indeed nobody familiar with the course of the discussion in this country upon the subject of the drink traffic could be ignorant of the fact.
It may well be doubted whether an enactment modelled on the Temperance Act of 1864 would be an enactment conforming to the present day conception in Canada of a measure “prohibiting the sale of intoxicating liquors.” At the time it was enacted it was no doubt considered to be an effective method of repressing that part of the liquor traffic giving rise to its most dangerous abuses, namely, the retail trade and especially the bar and saloon trade. The Canada Temperance Act was, of course, a much more stringent measure, and notwithstanding the exemption of the native wine industry from its prohibitions it has, as we
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have already observed, always been considered and described as a prohibitory enactment, without a thought of impropriety or inaptitude of expression. There has been no doubt a very good reason for this. The use of native wine, that is to say, wine manufactured in Canada, has never been a habit widely or even considerably indulged in by the Canadian people, and the traffic in such wines is not a traffic against which an enactment for the repression of the liquor traffic would naturally be directed. The exemption of such wines, if it attracted attention at all, would be regarded as a harmless concession to a native industry, not seriously impairing the efficiency of the measure as one for the repression of the traffic in liquor.
We are not, however, for the moment concerned with the question whether the phrase under consideration, namely,
law prohibiting the sale of intoxicating liquors for beverage purposes.
would, if read in vacuo, be properly descriptive of an enactment containing such exemptions as those to be found in sections 121 and 122 of the Canada Temperance Act and in section 44 of the Ontario Temperance Act.
The immediate question is whether in the enactment in which it appears, in a statute dealing with the subject of repression of the liquor traffic passed by the Parliament of Canada in the year 1919, this language is reasonably capable of such a construction. Counsel for the Attorney General has very properly referred us to the phraseology of the orders in council upon the same subject, passed by the Governor in Council in the years 1917 and 1918. We shall not discuss these instruments in detail. It is sufficient to mention that, in one passed on the 11th of March, 1918, under the War Measures Act of 1914, there is a recital in these words:
Whereas laws have been passed in all the provinces of Canada, prohibiting the sale of intoxicating liquor and such laws are now in force save in the province of Quebec where the prohibitory law is to come into effect by May 1, 1919,
and that it is indisputable that the statutes referred to falling under the description “prohibiting the sale of intoxicating liquors,” include the Ontario Temperance Act. The reference to the prohibitory law “about to come into force in Quebec” together with the language of the second paragraph shews that the words “prohibit” and “prohibitory.”
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as applied to the subject of the orders, cannot be employed in a sense which excludes an enactment having for its general object the suppression of the liquor traffic, by reason solely of the fact that special exemptions such as that found in section 44 are permitted by its terms.
It is needless to say that the construction of the language of the Act of 1919 cannot be governed by orders in council passed by the Dominion Government in execution of its powers under the War Measures Act or otherwise; but as Lord Hobhouse said in speaking for the Privy Council in Bank of Toronto v. Lambe:
The common understanding of men * * * is one main clue to the meaning of the legislature.
We think that the existence of the usage to which we have referred, in its various phases, in popular speech, and in more formal speech as exemplified in the judgments of the courts and in official instruments such as statutes and orders in council, justifies the conclusion that the words “prohibition” and “prohibit” when employed in connection with this subject have not, in the “common understanding” of Canadians, the inflexible signification which the appellant in his argument ascribes to them; and that section 152 is capable of a construction which would not exclude the Ontario Temperance Act from its purview.
In this view we cannot, of course, accept the argument advanced on behalf of the appellant, that section 152 ought to be read as establishing the dominant principle that the Act of 1919 is to be applied only in those provinces in which a prohibitory law is in force in the sense of a law wholly abolishing all sales of liquor for beverage purposes. That section being at least capable of a less rigorous construction the context in which the section occurs must be examined, for the purpose of ascertaining whether or not its true effect and meaning are those contended for by the appellant.
The proviso of section 154 appears to us to shew that these provisions do at least contemplate the possibility that the enactments of section 154 may come into operation in a province where the prohibition laid upon the “sale of intoxicating liquor for beverage purposes” is not absolute
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but is subject to exceptions. We have not overlooked the argument that the words “other than for the manufacture or use thereof as a beverage” exclude this view of the proviso. That phrase must be taken, in our opinion, as imposing a qualification upon the right which, in other respects, the proviso gives absolutely, that is to say, independently of the character of the provincial law, the right to introduce intoxicating liquor into the province for sacramental or medicinal purposes or for manufacturing or commercial purposes. It has little relevancy to the question of the proper construction of the concluding words of the proviso which give a right dependent entirely upon the character of the provincial law, and authorize in the language of the statute the import into the province of “intoxicating liquors,” which, under the laws of the province may lawfully be sold therein. We can perceive no legitimate reason for limiting these words in such a way as to exclude liquor falling within any class of liquor which under the provincial law may, notwithstanding its prohibitory enactments, be sold for beverage purposes. We find nothing in the proviso justifying such a limitation of the language which the legislature has employed, nor, as we have said, do we think that the language of section 152, when rightly construed, in view of the conditions and usage we have mentioned, requires such a limitation.
Our opinion is that on the true construction of these provisions, when read as a whole, the Ontario Temperance Act is an enactment falling within section 152.
The appeal should therefore be dismissed with costs.
MIGNAULT J.—The very full and satisfactory judgment rendered by my brother Duff on behalf of Mr. Justice Maclean and himself, permits me to express my views in a few words.
The preliminary objection of the respondent is that the appellant has not made out a case which would justify him, under the authorities, in asking, in a suit against the Attorney General, that the legislation in question be declared invalid or inoperative. The appellant contends that an intolerable situation has been created by this legislation, the validity of which he questions, and that, if his action cannot be received, he must either submit to an unjustifiable
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abridgment of his legal rights, or suffer, so as to be in position to assert them, the ignominy of criminal prosecution and possible imprisonment. There might conceivably be such a situation of oppression, by reason of drastic and arbitrary legislation, that would entitle this argument to very serious consideration, but here the position of the appellant does not differ, in point of any interest which he can assert, from that of hundreds of other citizens of the province who are opposed to prohibition, and he is not in jeopardy by reason of any act of his or of any threat of a penalty unless he submits to an unjustifiable demand. Moreover, the inconvenience of allowing actions of this nature to be taken by one who pretends, without shewing any special interest, that certain legislation is ultra vires or inoperative is too obvious for discussion. Even were the situation an intolerable one, a convenient mode of testing the validity of an obnoxious statute might possibly be found in such a proceeding as was resorted to in Union Colliery v. Bryden. I can therefore see no reason for extending the rule laid down in Dyson v. Attorney General, and followed in a number of well known cases.
This preliminary objection suffices to dispose of the appeal, and it is not absolutely necessary to express an opinion upon the merits. However, as the question is one of great public interest and as doubt has been cast upon the validity of legislation given effect to after the electorate had been invited to pass upon its advisability, I think I should give the parties the benefit of the views I have formed after listening to the very full argument of counsel. I can do so with all the more brevity that I entirely concur in what has been well said by my brother Duff.
The question, as I understand it, is whether the Ontario Temperance Act is, within the meaning of Part IV of the Canada Temperance Act, a law prohibiting the sale of intoxicating liquor for beverage purposes. It is not whether it is an absolute prohibition, but merely whether it is what the Parliament of Canada must be assumed to have intended to describe in section 152 of the Canada Temperance Act as
a law prohibiting the sale of intoxicating liquor for beverage purposes.
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Section 44 of the Ontario Temperance Act, allowing under certain conditions the sale of native wines, furnishes the only serious difficulty. But it must be observed that, under the Canada Temperance Act, the sale of native wines was not considered inconsistent with the prohibition of the sale of intoxicating liquor for beverage purposes (section 122 in Part II, which bears the title “Prohibition”). And the only question being what Parliament intended by the words I have quoted, I do not think that such an exception, in the Ontario Temperance Act as Parliament had itself admitted in section 122 of the Canada Temperance Act would take the provincial prohibitory law out of the class of laws which Parliament contemplated as prohibiting the sale of intoxicating liquors for beverage purposes. I need go no further, for without this express exception in the Canada Temperance Act the question might well be considered a doubtful one, and it is unnecessary to say whether or not exceptions of this nature may not, if extended, prevent the provincial law from coming within the category of prohibitory liquor legislation.
On the whole, I think the appellant fails on the preliminary objection of the respondent as well as on the merits of his action.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Millar, Ferguson & Hunter.
Solicitor for the respondent: Edward Bayly.
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