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Chapter

POLS 3135 Chapter Notes -Canada Temperance Act, Ultra Vires, Reference Question


Department
Political Science
Course Code
POLS 3135
Professor
Ray Bazowski

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Attorney General of Ontario v. Attorney General of Canada (Local Prohibition
Case), 1986
Significance: One of the first cases to detail the core principles of Peace, Order, and
Good Government (POGG) by the Judicial Committee of the Privy Council (JCPC).
Issue: whether the Province of Ontario had authority to enact the provisions of the
Canada Temperance Act of 1878 (which was an act by the Parliament of Canada
which provided an option for municipalities to take part in a direct vote that would
see a prohibitionary scheme enacted.)
Background: with the Canada Temperance Act in mind, the Province of Ontario
pass an act that was very similar to it in content. Out of this issue of competition
between Ontario and the federal government to regulate the consumption and sale
of liquor came the litigation case known as Huson v. South Norwich (a small town in
Ontario). In the ruling of the case, the Supreme Court of Canada found that the
prohibition of liquor sales fell under exclusive federal jurisdiction over trade and
commerce - “All matters of trade and commerce, banking, currency and all questions
to the whole people we have vested fully and unrestrictedly in the general
government”(46).
Moreover, on the appeal of the decision, the JCPC reversed the Supreme Courts
decision in the reference case. So, where the same act was held to be ultra vires of
provincial jurisdiction, as there was no authority for a province to enact prohibitory
legislation. Lord Watson of the JCPC said that the preservation of provincial
autonomy required that Parliament’s general power to legislate for the peace, order,
and good government of Canada not have the same capacity as the federal
enumerated powers to override provincial jurisdiction over matters of local nature
(47). Hence, there were two judgments that clashed or conflicted with one another.
However, in both cases, the majority did not question the capacity of the federal
government to enact legislation under it powers relating to POGG. Consequently, the
government of Ontario appealed to the JCPC on the grounds that 1) Ontario has had
intra vires (jurisdiction) over municipal institutions and such institutions have had
the authority of prohibition even before the establishment of Canada in the
Confederation, 2) Ontario argued that their provincial acts did not conflict with the
federal acts (refer to double aspect doctrine), 3) and federal authority over trade
and commerce had to be limited to its regulation because it would over ride Ontario.
Ruling of JCPC: 1) provinces did have the authority to prohibit trade and commerce
but it was based on their jurisdiction over section 92 of the Constitution Act of 1987
(which permits the Provincial legislatures of Canada the authority to enact
regulations based on property, civil rights 2) in situations where federal and
provincial laws conflict, the federal law always prevails 3) the federal government
does not have the power to prohibit trade, however such a prohibition for all of the
provinces could arise under the federal governments residual powers (in
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